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AF | PDBR | CY2013 | PD-2013-01061
Original file (PD-2013-01061.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-01061    
BRANCH OF SERVICE: Army         BOARD DATE: 20150522
SEPARATION DATE: 20050415
                 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Motor Transport Operator) medically separated for a right shoulder, right knee and bilateral feet conditions. These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). His profile allowed for alternate aerobic events to satisfy physical fitness standards. He was issued a permanent U2L3S1 profile and referred for a Medical Evaluation Board (MEB). “Right shoulder s/p open sub-acromial decompression and distal clavicle resection,” “left chronic Achilles tendinosis with Haglund’s deformity,” “bilateral plantar fasciitis,” “osteoarthritis of the left midfoot,” “osteoarthritis of the right knee,” “chronic mechanical low back pain,” and left supraclavicular fossa soft tissue mass” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. Although not specifically listed on the MEB, an 18 January 2005 psychiatric addendum listed posttraumatic stress disorder (PTSD) as an Axis I diagnosis that was adjudicated by the PEB as not unfitting. No other conditions were submitted by the MEB. The Informal PEB (IPEB) adjudicated “right shoulder pain” as unfitting, rated 0%. “Chronic foot pain with a diagnosis of left chronic Achilles tendinosis with a Haglund’s deformity, bilateral plantar fasciitis and osteoarthritis of the left midfoot… and back pain” was determined by the PEB to be a single unfitting condition that existed prior to service (EPTS) without evidence of permanent service aggravation (PSA) and therefore not rated. “Osteoarthritis of the right knee” was also determined to be unfitting, EPTS, without PSA and therefore not rated. The remaining conditions (PTSD and left supraclavicular fossa soft tissue mass) were determined to be not unfitting. The CI made no appeals and was medically separated. The US Army Physical Disability Agency (USAPDA) completed an administrative correction to the IPEB which had no bearing on the rating or final disposition.


CI CONTENTION: “My permanent pain that I experience daily that was caused from fighting in the Iraqi War, was not addressed by the Active Duty Medical Evaluation Board, after I separated from the Army in April 2005. I submitted a copy of my medical records and medical evaluation board findings to the VA claims process in 2005, and in 2006, I was awarded 80% disability, which was increased to 90% in 2011. The Active Duty Review Board never addressed the injuries I received to my lower back, right hip, right knee, the re-aggravating of my left foot and Achilles tendon and neck injury. I also suffered from PTSD on active duty due to IED's and fire fights I was in during the 2003/04 conflict. I was diagnosed with sleep apnea in 2004/2005 by the Portsmouth Naval Hospital. Also, in 1982, I had a hip injury while on active duty at Fort Stuart, GA. This injury was re-aggravated in 2003 and still gives me significant problems to this day. All of these injuries were not evaluated nor reviewed by the Medical Evaluation Board. I was told just be happy with the 0% that I received for my right shoulder and accept the severance pay by a Captain of the Medical Evaluation Board because he said that the VA will address these other medical injuries after I separate from the Armed Services. I feel that I was unjustly evaluated because soldiers were given lesser percentages, as documented in the Washington Post, that they were actually supposed to be receiving. I recently became aware of your process to be able to file for medical retirement through Active Duty and have my medical records be reviewed for Active Duty medical retirement. ”


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

Service PDA Admin Corr – Dated 20050318
 VA - (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Right Shoulder Pain 5099-5003 0% Right Shoulder Strain 5019 10% 20050612
Chronic foot pains with a diagnosis of left chronic Achilles tendinosis with a Haglund’s deformity, bilateral plantar fasciitis and osteoarthritis of the left mid foot…chronic back pain 5299-5276 EPTS w/o PSA Bilateral Flat Feet 5276 NSC 20050612
S/P Left Achilles Tendon Injury 5276 NSC 20050612
Chronic Low Back Strain 5237 10% 20050612
Osteoarthritis of the Right Knee 5003 EPTS w/o PSA S/P ACL Tear, Right Knee 5024 10% 20050612
PTSD Medically Acceptable Not Unfitting PTSD 9411 30% 20050609
Other x 2 (Not in Scope)
 Other x 8
Combined: 0%
 Combined: 80%
Derived from VA Rating Decision (VA RD ) dated 200 60110 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Right Shoulder Condition. The service treatment record (STR) reflected that prior to 2003 the CI was being treated by physical therapy (PT) for tendonitis and impingement of his right shoulder. X-rays indicated tendon narrowing with joint effusion. In October 2003, the CI fell from a vehicle causing additional injury to his right shoulder and eventually underwent surgery which included a sub-acromial decompression (SAD) and distal clavicular resection (DCR). After surgery, his pain improved, but was not resolved and an MEB was initiated. No STR entries documented instability, subluxation, or abnormal neurovascular findings. He was permanently profiled in October 2004 with a diagnosis of right shoulder acromial-clavicular joint (ACJ), degenerative joint disease (DJD)/sub-acromial impingement (SAI) syndrome, status post surgery. At the narrative summary (NARSUM) dated 9 February 2005 (2 months prior to separation and 6 months after surgery) the CI endorsed worsening right shoulder pain. His physical examination (PE) was brief noting normal neurovascular findings to both upper extremities. His diagnosis remained unchanged adding “…with good ROM (range-of-motion) and improving strength.” There were no comments with regards to measured ROM or the presence of painful motion.
At the VA Compensation and Pension (C&P) examination dated 12 June 2005 (2 months post-separation) the CI reported right shoulder “discomfort,” “restricted ROM,” and the “inability to lift heavy objects.” The PE revealed tenderness and limited ROM. The diagnosis was chronic right shoulder strain. The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Shoulder ROM
 (Degrees) 		PT ~ 5.5 Mo. Pre-Sep VA C&P ~ 2 Mo. Post -Sep
Flexion (180 Normal) 165,166,166 150
Abduction (180) 155,155,157 140
Comments painful motion tenderness
§4.71a Rating 10 % 10 %

The Board directed attention to its rating recommendation based on the above evidence. Both the PEB and the VA cited the presence of pain or tenderness with limited motion and rated the right shoulder under the analogous 5003 (degenerative arthritis) code and 5019 (bursitis) at 0% and 10% respectively. Board members first acknowledged that the persistence of painful motion and or tenderness on the PT and VA exams was easily supported under VASRD §4.59 to achieve a minimal compensable 10% rating. There was no ROM impairment limitation to achieve a compensable rating under code 5201 (limitation of motion). There was no clinical evidence of ankylosis or nonunion/malunion of any component of the shoulder girdle; and, no history of recurrent shoulder dislocation; thus, no shoulder joint code under VASRD §4.71a would yield a rating greater than 10%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right shoulder condition.

The Board next turned its attention to the multiple unfitting conditions bundled together under the analogous code 5299-5276 (flat feet; acquired) and listed as EPTS without PSA. The Board’s main charge regarding these conditions is an assessment of fairness of the PEB’s PSA determination in regards to an EPTS condition. The Board’s authority for recommending a change in the service’s permanent aggravation determination is not specified in DoDI 6040.44, but is considered adjunct to its DoD-specified obligation to review service fitness adjudications. As with its consideration of fitness adjudications, the Board’s threshold for countering service permanent aggravation determination is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations; but, remains adherent to the DoDI 6040.44 “fair and equitable” standard. Furthermore, the Board wishes to clarify that it is bound by Title 10, United States Code (Sec. 1207a) which stipulates that a military member must have accrued 8 years of active duty time in order to receive Service disability (automatically considered PSA) for a pre-existing condition not aggravated by service. This case totaled less than 8 years of active service. Each condition and/or anatomic area are separately listed and considered.

Chronic back pain. Prior to service separation, the single STR encounter regarding a back issue was an X-ray performed (August 1985) prior to the CI’s second tour of active duty which noted “no evidence of degenerative changes within the lower lumbar spine.” Thoracic spine level X-rays were not in evidence. The MEB PE was completely normal in all parameters to include full forward flexion of the back. The VA examination noted tenderness and spasm to the lumbar spine not resulting in an altered gait. There were no documented clinical encounters of symptomatic back pain in the STR and the condition was not implicated in the commander’s statement. Members agreed that the lack of clinical evidence coupled with negative radiographic findings did not support a conclusion of PSA of his back condition. After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB’s determination that the back condition was not PSA.

Osteoarthritis, right knee. The STR initially noted a twisting injury to the CI’s right knee while on active duty in August 1982. There was a 17-year gap in the STR regarding the right knee and an X-ray report of 8 September 1999 revealed degenerative joint disease (DJD). Nearest to service separation, 19 months prior to discharge, in September 2003 a PT evaluation indicated normal, but painful motion of the right knee with tenderness. There was no instability. At the NARSUM examination, the CI endorsed an increase in his prior symptoms of right knee pain. The PE revealed a normal gait, right knee effusion, and minimal to equivocal instability tests. Repeat X-rays revealed marked DJD. There were no comments with regards to measured ROM or the presence of painful motion. His diagnosis remained unchanged. The VA C&P examination summarized the CI’s prior right knee injury noting no specific or additional complaints. The PE revealed tenderness without instability, crepitus, effusion or painful motion. ROM was normal. The PEB adjudicated the condition as EPTS without PSA. The Board’s pivotal discussion focused on whether there was PSA of this condition. Although the condition was listed on the permanent profile, the Board concluded that despite radiographic findings of “marked” DJD, the clinical findings of a normal gait, full ROM, and the ability to “pass” the Service’s physical fitness test lent support for the condition not being PSA. After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB determination that the right knee condition was not PSA.

Chronic left foot pain with Achilles tendinosis and Haglund’s deformity. In reference to the titled conditions, the MEB examiner stated “This [the CI’s symptoms] had subsided with his [wearing] combat boots.” Although the permanent profile listed “left foot arthritis/Achilles tendonitis,” the commander’s statement was absent any “feet-related” conditions. The STR contained a paucity of clinical documents in reference to this condition and board members agreed that the available evidence did not support the condition as PSA. The VA also considered the condition as not service connected (NSC). After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB’s determination that the chronic left foot pain with Achilles tendinosis and Haglund’s deformity condition was not PSA.

Bilateral plantar fasciitis. In this case, it was clearly noted on his service entrance examination of 31 August 1979 that the CI had pre-existing pes planus (flat feet); a condition with a well-recognized predilection for lifetime podiatric problems to include plantar fasciitis. Therefore, the question remained as to the natural progression of the pes planus condition rising to PF, or was there a causative link or PSA in the development of PF. Although Board members remained uncertain in regards to the natural progression of the pes planus as the precursor for PF in this particular case, they were certain that the condition as diagnosed 3 months prior to deployment did not result in being non-deployable, but rather the condition was acutely and conservatively treated with medications, ice packs, and arch supports. There was no clinical evidence of the bilateral PF condition having any abnormal impact on the CI while deployed. The condition was not listed on the permanent profile nor implicated in the commander’s statement. After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that when considered either separately or bundled, there was insufficient reasoning to recommend a change in the PEB’s determination that the bilateral PF condition was not PSA.

Osteoarthritis, left foot. The MEB indicated radiographic evidence of osteoarthritis existing in two separate joints of the foot. The STR did not contain specific clinical encounter documents specifying this condition. Although the condition was permanently profiled, it was not implicated in the commander’s statement. Board members concluded that the available evidence did not support the condition as PSA. After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB’s determination that the osteoarthritis condition was not PSA.
Posttraumatic stress disorder (PTSD). The CI was deployed to Kuwait and Iraq from April 2003-2004 as a heavy equipment operator. The psychiatric addendum to the MEB dated 18 January 2005, 3 months prior to separation and 9 months post-deployment, documented the chief complaint of “anxiety and stress” after return from OIF. It summarized his deployment experience as being involved in enemy attacks to include firefight engagement. The CI reported that he sought weekly counseling for about 6 months with Combat Stress Control after his convoy was attacked in October 2003, as well as individual psychotherapy for a 5-month period upon redeployment (April 2004). The CI reported current issues of “feeling depressed three to four days/week, mainly in the afternoon, disturbing dreams (not described), hypervigilance while driving, intrusive thoughts about OIF, and decreased concentration.” The examiner noted that “these symptoms cause mild disturbance in daily functioning.” His mental status examination (MSE) was unremarkable. His global assessment of functioning (GAF) was 65 (mild impairment). His Axis I diagnosis was PTSD and the examiner assessed “mild” impairment to both social and industrial capability, as well as meeting Army retention standards.

The mental health (MH) C&P examination dated 9 June 2005, 2 months post-separation documented an MSE that noted depressed mood and blunted affect. There was no suicidal or homicidal ideation or psychotic intentions. His Axis I diagnosis remained unchanged and his GAF was 60 (borderline mild-moderate). There was no evidence of psychiatric hospitalizations or visits to the emergency room for MH symptoms. The CI had remained married and in his civilian occupation as a government project manager for a period of 7 years without any missed work. He achieved “good” job evaluations. Although 2 months after separation symptoms recorded at the C&P exam were significantly more than during the NARSUM, the record reflec ted minimal symptoms in the months prior to separation, and there was no evidence of psychotropic medication use for his PTSD condition. The PTSD condition was not profiled or implicated in the c ommander’s s tatement as causing any duty impairment. The MH condition was reviewed by the Board and was not judged to fail retention standards. There was no indication from the record that any MH condition significantly interfered with satisfactory duty performance. After due deliberation , and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determ ination for the PTSD condition and therefore, no additional disability rating can be recommended.


BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the right shoulder condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a. In the matter of the chronic back pain, osteoarthritis left foot, osteoarthritis right knee, left foot pain with Achilles tendinosis and Haglund’s deformity, and bilateral plantar fasciitis conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB’s adjudication. In the matter of the contended PTSD condition, the Board unanimously recommends no change from the PEB’s determination as not unfitting. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:



UNFITTING CONDITION VASRD CODE RATING
Right Shoulder Condition 5099-5003 10%
RATING 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130728, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record





        
XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review
SAMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXX, AR20150011098 (PD201301061)


1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation. This decision is final.

2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.

3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                       XXXXXXXXXXXXXXX
                           Deputy Assistant Secretary of the Army
                           (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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