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AF | PDBR | CY2013 | PD-2013-01695
Original file (PD-2013-01695.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxxxxxxxxx      CASE: PD-2013-01695
BRANCH OF SERVICE: Army  BOARD DATE: 20150717
SEPARATION DATE: 20070102


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Military Police) medically separated for right knee pain and posttraumatic stress disorder (PTSD). The right knee and PTSD conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) but the CI was authorized per profile to perform an alternate physical fitness test. He was issued a permanent P3, L3 and S2 profile and referred for a Medical Evaluation Board (MEB). “PTSD (meets retention standards),” “testicular cancer,” “right retropatellar pain syndrome,” “lumbar strain (meets retention standards)” and “degenerative desiccation of L5 through S1 (meets retention standards),” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions, depressive disorder not otherwise specified (meets retention standards) and lower urinary tract symptoms (meets retention standards), for PEB adjudication. The Informal PEB (IPEB) adjudicated “right retropatellar pain syndrome” as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting . The CI appealed to the Formal PEB (FPEB) who adjudicated “right knee pain” and “PTSD” as unfitting, rated 10% and 10%, with likely application of the VASRD. The remaining conditions were determined to be not unfitting and the CI was medically separated. Following a short break in service, the CI was ordered to active duty in mid-2005 for recurrence of testicular cancer. No additional MEB and PEB were convened and the CI was separated in early 2007.


CI CONTENTION: After a medical separation, he was returned to active duty for reoccurring cancer but had no second MEB. Upon permanent separation, he was given a higher rating for his conditions by the VA. His complete submission is at Exhibit A.


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 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 :

FPEB – Dated 20050105
 VA* - based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Right Knee Pain 5003 10% Internal Derangement, Right Knee, Status Post Anterior Cruciate ligament Reconstruction 5257 205 STR
PTSD 9411 10% PTSD 9411 30%
Testicular Cancer Not Unfitting Testicular Cancer 7528 0%
Lumbar Strain Not Unfitting Lumbar Strain with Degenerative Changes 5243-5237 10%
Degenerative Desiccation of L5 through S1 Not Unfitting
Other x 3 (Not In Scope)
 Other x 5
COMBINED RATING: 20%
 COMBINED RATING: 20%
* Derived from VA Rating Decision (VA RD ) dated 200 70531 (most proximate to date of separation [ DOS ] ) .


ANALYSIS SUMMARY:

PTSD. The psychiatry narrative summary (NARSUM) documented the CI was deployed to Iraq and assigned to guard the prison from May to November 2003. His company was involved in several combat experiences including multiple mortar attacks. In June 2003, his vehicle ran over a land mine and he sustained multiple injuries. Upon return from deployment he had daily thoughts “every waking moment” about his combat experiences and nightmares. He reported difficulty with sleep, irritability, hyperarousal, hypervigilance, and feelings of guilt. He felt guilty that he received the Purple Heart which is the same award that the soldiers who were killed received. He reported some depressive symptoms as well. The CI was referred to behavioral health (BH) prior to de-mobilization. A mental health (MH) entry dated 4 December 2003 recorded the diagnosis of acute stress disorder and a Global Assessment of Functioning (GAF) score of 80 (if symptoms are present they are transient and produces no more than slight impairment in functioning). Three weeks later, the CI participated in his first PTSD group, where he was diagnosed with PTSD and assessed a GAF of 72 (mild). Treatment records demonstrated that the CI participated in regular MH treatment from January 2004 through December 2005 for PTSD. The NARSUM dated 6 July 2004 documented the CI’s history of testicular cancer and the depressive symptoms he had associated with learning of the diagnosis, in combination with the physical injuries sustained while deployed. He was living with his girlfriend and he indicated they were having relationship issues. The mental status examination (MSE) was unremarkable with the exception of blunted and restricted affect. The examiner noted that the CI’s symptoms had not resulted in suicidal behaviors nor required hospitalization. He was taking a low dose antidepressant and medication for sleep. The diagnosis of PTSD was assessed with a GAF of 61-70 (mild). The examiner opined that his condition had caused moderate to severe symptoms that “may improve” with treatment; however, he was unlikely to deploy again. The VA documented in the November 2005 rating decision (RD) that the CI was unable to present to the C&P general and mental examinations due to being called back to active duty (to evaluate his testicular cancer); however, they determined that the condition of PTSD was not service-connected and had existed prior to service (EPTS due to childhood exposure). After permanent separation in January 2007, the CI underwent both general and mental examinations at the VA.

The Board directed attention to its rating recommendation based on the above evidence. The IPEB considered the conditions of PTSD and depressive disorder not otherwise specified (NOS), as not unfitting and the CI appealed. The FPEB determined that the condition of PTSD was unfitting and rated the condition at 10% coded 9411, noting the condition as EPTS (childhood trauma exposure) but made no deductions and determined it was combat-related. The condition of depressive disorder remained not unfitting. The VA did not service-connect the condition as noted above, until 2007. All Board members agreed the record clearly demonstrated and the FPEB indicated that §4.129 was applicable in this case, although it was considered EPTS but with permanent service aggravation. Therefore, the Board in compliance with the provisions of VASRD §4.129 (mental disorders due to traumatic stress) must recommend placement of the CI on the Temporary Disability Retirement List (TDRL) with a minimum rating of 50% and a reassessment 6 months after the period of constructive TDRL. The higher 70% rating criteria requires evidence of “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Available treatment records prior to the constructive TDRL period did not include a history related to psychiatric hospitalization, or emergency room treatment. His MSE at the time of the NARSUM was essentially normal without documentation of impairment in thinking or judgment. Although the NARSUM examiner documented marked impairment for military service and assigned a GAF of 61-70 (mild), the examiner stated the CI’s symptoms of PTSD were moderate to severe and documented a moderate premorbid predisposition related to childhood abuse. The Board also considered the 25 August 2004 comprehensive fitness for duty (FFD) psychiatric examination that assessed depressive disorder NOS and PTSD with pre-existing childhood/adolescent trauma, and opined that his PTSD was service aggravated. The CI was working 20 hours per week as a security guard and volunteered at a children’s hospital cancer ward. He also volunteered to serve on the honor guard for funerals. The CI also reportedly had worked 20-hour days at the NG unit. The psychiatrist noted that the CI had been treated with several psychotropic medications to address sleep issues and anxiety but had limited benefit from them. He remained angry and irritable and was hostile towards the examiner. His MSE was normal except for his mood and affect. A GAF score was not recorded. The Board concluded the record in evidence did not support a higher than 50% rating for TDRL entry. The Board concluded there was insufficient reasonable doubt (IAW VASRD §4.3) for recommending a 70% TDRL placement rating since there was no evidence of occupational or social impairment in most areas of functioning.

The Board next determined the most appropriate fit with VASRD §4.130 criteria for its permanent rating recommendation at the end of the TDRL period. The Board deliberated the evidence for the 30% versus 10% disability rating. The 30% disability rating requires evidence of “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to symptoms such as depressed mood, anxiety, panic attacks, chronic sleep impairment, and mild memory loss. Both the NARSUM and the FFD examinations were in evidence, as well as the two MH treatment entries in 2006 and the April 2007 C&P mental evaluation. The C&P exam was considered most probative since it was the only examination proximal to separation. The NARSUM indicated that the CI had benefited from talk therapy but had continued to have problems with sleep. The FFD examination a month later documented continued problems with sleep, irritability and anger but noted the CI was working long hours at the NG unit, 20 hours a week as a security guard at a clothing store, and engaged in volunteer activities. Although the CI’s unit was being investigated for possible abuse of prisoners during his deployment, a personal legal history was not documented. The CI had a permanent S2 profile that did not restrict his ability to carry or fire an individual weapon, or contain any other duty restrictions related to MH. The MH entries in 2006 documented that the CI briefly de-stabilized after the pain management physician discontinued his psychotropic medications; however, once re-introduced, he was able to regain symptom stability. The 2007 C&P examination noted that the CI reported he slept with a weapon under his pillow, cried easily, and avoided contact with the news or other things that reminded him of the war. He was irritable, easily angered, and had difficulty in interpersonal relationships. However, the examiner also noted that the CI was working at the municipal court in a clerical job and was recently notified that he would be promoted to become a court enforcement officer. His daily activities consisted of getting up at 5 a.m., leaving for work at 6:30 a.m. and working until 4 p.m. with the city before returning home to prepare to present to a second job where he worked until midnight. The second job was at the same retail store he reported working at during the August 2004 NARSUM. He noted he would return home and have difficulty sleeping. The MSE was unremarkable except that his affect was “nearly flat”. The record in evidence demonstrated absence of psychiatric hospitalization, absence of suicidal and homicidal ideation, no recorded panic attacks, no impairment in memory, and although the CI reported chronic sleep impairment, he maintained steady employment over the years with the same employers. There were no documented incidents of inappropriate on-the-job behaviors (in fact, he was going to be promoted), workplace violence, or history of domestic violence. The CI reported he was notified that he was being considered for promotion. After careful deliberation, Board members agreed that the totality of evidence best reflected the 10% level of disability. After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 10% permanent disability rating for the condition of PTSD.

Right Knee Condition. It was documented that the CI sustained an injury to his right knee in August 2002 after he jumped over a wall during a military operation. The injury was initially treated as a strain with medication and restriction of certain activities. In September 2002, magnetic resonance imaging (MRI) documented “classic anterior cruciate ligament tear”. In October 2002, the CI underwent reconstructive surgery without complications using an autogenous hamstring graft, and had an uneventful postoperative course. He participated in a brief course of physical therapy (PT) before being deployed to Iraq. The MEB dated 1 September 2004 documented that while in Iraq, the CI was injured during a land mine detonation near the vehicle in which he was riding. The injury occurred in June 2003, and by his report, he suffered loss of consciousness and began having right knee pain but had not recalled a specific injury to his knee. The CI indicated he had swelling of the right knee with increased activity and reported that his quadriceps strength was very poor. He denied knee locking, giving way or buckling. At the time of the MEB the CI was enrolled in PT three times a week and noted that he was improving, but was still unable to run. On physical examination, the examiner documented absence of effusion, no evidence of infection, good patellar mobility, and no evidence of knee instability. The area of the graft was noted to be well healed, and the examiner observed “notable atrophy” of the quadriceps. Lower extremity muscle strength recorded right knee strength of 4/5 in flexion and extension, compared to 5/5 on the left. Dorsiflexion, plantar flexion, eversion and inversion of the right lower extremity had 5/5 strength. Range-of-motion (ROM) recorded flexion to 120 degrees. The examiner noted good knee stability and good prognosis but indicated the CI was not deployable and was not capable of running or walking for long distances due to knee pain. As noted above, after permanent separation in January 2007, the CI underwent a C&P exam on 11 April 2007 which showed right knee ROM flexion to 95 degrees with pain developing at 95 degrees, and extension “lacked 8 degrees of full extension”. However, there were additional losses of ROM after repetitive movement with flexion decreased by 10 degrees, and extension was limited to 15 degrees (DeLuca).

The Board directed attention to its rating recommendation based on the above evidence. The I PEB rated the condition of right retropatellar pain syndrome at 0% coded 5003 . As noted above the CI appealed to the FPEB and the condition of right knee pain rating was increased to 10% coded 5003 for limitation of motion . Though the CI did not repo rt to the scheduled VA appointment because he was recalled to active duty , the 2005 R D was based on the STR and the CI was assign ed a disability rating of 10% for the knee condition, coded 5257 (knee, other impairment ). As noted above , the Board placed the CI on the TDRL for PTSD in compliance with the provisions of § 4.129. Therefore, all other unfitting conditions must receive a rating both at the time of placement on TDRL and a permanent rating at TDRL removal. In the case of his right knee condition, the Board agreed with a rating of 10% at TDRL placement. A higher rating of 20% under the 5003 code requires radiographic evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations ; neither of these options were supported by the evidence. The rating of 20% under the 5257 code requires evidence of moderate lateral instability or moderate recurrent subluxation. Although the VARD stated , “Last reports were the knee had mild laxity”, t he MEB NARSUM recorded absence of knee instability, and knee instability was not recorded in any of the STRs in evidence prior to separation. The Board concluded that the evidence in consideration of the 5257 code did not support a higher rating . On review of the records the Board noted that even though the flexion was reduced it was not compensable under 5260 and 5261. The Board next considered the 5258 code; however, there was no objective evidence of frequent episodes of locking and effusions to support the use of this code. The Board found no other codes for consideration at TDRL placement. 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 adjudication for the right knee pain condition at TDRL placement.

The Board next determined the most appropriate rating at the end of TDRL for its permanent rating recommendation. The Board considered the September 2004 NARSUM and the 2007 C&P examination in evidence at the time of TDRL removal however members agreed the C&P exam was more probative since it was the most proximate to separation. The Board considered the 5260 code and determined the condition was not compensable under that code. The Board next considered the 5261 code (leg, limitation of extension). The C&P examination documented a decrease in motion after repetitive movement of the right lower extremity that caused leg extension limited to 15 degrees. The Board noted that the condition was compensable under the 5261 code. A 10% rating is granted for extension limited to 10 degrees and a 20% rating is assessed with extension limited to 15 degrees. Board members agreed the ROM was compensable at 10%; however, the examiner documented further decrease in ROM with repetitive testing (De Luca criteria), with extension limited to 15 degrees, thereby, meeting the description for 20%. There were no other applicable codes leading to a higher rating. Therefore, after due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 20% permanent disability rating for the condition of right knee pain.


Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the conditions of testicular cancer, lumbar strain, and degenerative desiccation of L5/S1 were not unfitting. The Board’s threshold for countering fitness determination requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The lumbar strain and the degenerative desiccation of L5/S1 were not profiled in the October 2004 physical profile and were not judged to fail retention standards. There was no performance-based evidence from the record that either condition significantly interfered with satisfactory duty performance. The Board acknowledged that the condition of testicular cancer was profiled; however, the profile was influenced by the specific need for access to urology and oncology. There was no performance-based evidence from the record that the testicular cancer 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 determination for the any of the contended conditions and so no additional disability ratings are 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 PTSD condition, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed; and a 10% permanent rating IAW VASRD §4.130. In the matter of the right knee pain condition the Board unanimously recommends an initial TDRL rating of 10% in retroactive compliance with VASRD §4.129 as DOD directed; and a 20% permanent rating IAW VASRD §4.71a. In the matter of the contended testicular cancer, lumbar strain, and degenerative desiccation L5-S1 conditions, the Board unanimously recommends no change from the PEB determinations 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 to reflect that the applicant be retroactively placed on the TDRL at 60% for a period of 6 months IAW §4.129, and then permanently separated with severance pay by reason of physical disability with a final 30% rating as indicated below.

UNFITTING CONDITION VASRD CODE TDRL RATING PERMANENT
RATING
Right Knee Pain 5003 10% 20%
Posttraumatic Stress Disorder 9411 50% 10%
COMBINED 60% 30%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131001, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record


XXXXXXXXXXXXXXXXXXXX
 President
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 xxxxxxxxxxxxxxxxxxxxxxxxxxx , AR20150012520 (PD201301695)
1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to constructively place the individual on the Temporary Disability Retired List (TDRL) at
60% disability for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30%.

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:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay:

         b. Providing orders showing that the individual was retired with permanent disability effective the day following the six month TDRL period.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, provide 60% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 30% effective the day following the constructive six month TDRL period.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.



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                                                  xxxxxxxxxxxxxxxxxxxxxxxx
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA







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