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AF | PDBR | CY2013 | PD-2013-02190
Original file (PD-2013-02190.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02190
BRANCH OF SERVICE: Army  BOARD DATE: 20140916
SEPARATION DATE: 20051211


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Light Wheeled Vehicle Mechanic) medically separated for anxiety disorder and bilateral anterior knee pain. The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB). The post-traumatic stress disorder (PTSD), cognitive disorder (not otherwise specified (NOS)) and bilateral anterior knee pain conditions, characterized as “does not meet retention standards” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “anxiety disorder and bilateral anterior knee pain” as unfitting, rated at 10% and 0%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy, Department of Defense Instruction (DoDI) 1332.39 and Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “The manner of discharge was unfairly done. Army did not exen consider PTSD symptoms to be severe.”


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 :

Service IPEB – Dated 20051013
 VA - Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Anxiety Disorder 9413 10% Post-traumatic Stress Disorder with Cognitive Disorder 9411 50% STR
Bilateral Knee Pain 5099-5003 0% Right Knee Chondromalacia Patella 5014 10% STR
Left Knee Chondromalacia Patella with Plica Synovitis 5014 10% STR
Other x 0 (Not in Scope)
 Other x 5 (Not in Scope) STR
Combined: 10%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 71024 (most proximate to date of separation )


ANALYSIS SUMMARY: The Board acknowledges that the original VA Compensation and Pension (C&P) examination and VARD (2005 timeframe) were referenced, but not available in the evidence before it and could not be located after the appropriate inquiries. Further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case. The missing evidence will be referenced below in relevant context and, it is not suspected that the missing evidence would significantly alter the Board’s recommendations.

Anxiety Disorder Condition. The CI deployed to Iraq from March to December 2003. In February 2004, he began to experience “memory problems,” to include inability to remember frequently driven routes, where he parked the car, or the placement of everyday items. An initial behavioral health evaluation in August 2004, although having “some” recall of his deployment experience, “he does not have much memory of Iraq.” Clinical testing clearly indicated memory impairment and his diagnosis was cognitive disorder NOS with rule out both PTSD and psychotic disorder NOS. His Global Assessment of Functioning (GAF) was 45; indicating between “major” and “serious” impairment. Due to symptoms of graphic visual hallucinations and homicidal thoughts, he was hospitalized for 3 days in August 2004. His discharge diagnosis remained cognitive disorder NOS; versus anxiety disorder NOS with sub-clinical PTSD symptoms. A neurologic evaluation cleared the CI of an organic etiology for his presenting symptoms and further diagnosed him with “psychiatric disorder (NOS).” Formal neuropsychological evaluation (October 2004) revealed marked neurocognitive dysfunction affecting attention, learning, memory, academic achievement, higher level reasoning and mental flexibility. Other areas of concern were “disturbed thought processes, affective disturbance, and symptoms of PTSD.” His final diagnoses from the neuropsychological perspective were moderate cognitive disorder, PTSD and dyssomnia NOS (a group of disorders causing a disturbance in the normal rhythm or pattern of sleep). “His severe cognitive deficits were determined to be most likely due to his severe sleep disruption, as they were more severe than what would typically be seen in PTSD and were not consistent with being the result of his previous [minor; non-combat related] head injuries. A second hospitalization of 5 days occurred in June 2005 for continued and specific homicidal ideations. His discharge diagnoses were chronic PTSD, homicidal ideation…resolved and cluster “B” personality traits (…dramatic, emotional, or erratic thinking or behavior).

At the MEB narrative summary (NARSUM) coupled with the repeat neuropsychological examination (July 2005; 5 months prior to separation), the CI continued to display significant psychiatric disturbance marked by sleep difficulty, violent visual hallucinations, irritability, agitation, severe anxiety, hyper vigilance and a hyper-startle response. An in-depth, mental status examination revealed a flat affect and mood described as “not good.” He was anxious with unintentional shaking of his lower extremities. There was no suicidal ideation, but he elaborated visual hallucinations of homicidal thoughts and urges. His diagnoses remained chronic PTSD and cognitive disorder NOS with a GAF of 45-50; noting “serious” impairment. His impairment for military duty was assessed as “marked.” There were two commanders statement in the case file. The first dated August 2005 indicated “adequate” duty performance after 23 days assignment; the second dated October 2005 (86 days assignment) noted the CI had an “…inability to interact well with and around other people. He was easily upset by others around him and became forgetful and frustrated with small tasks.” Additionally, the case file contained an e-mail from the CI’s deployed First Sergeant noting that their deployed base did receive attacks from mortars, rockets and small arms fire with estimated nearest hit at 200 meters.

Absent the original VA C&P examination and VARD, a subsequent 2 year post-separation VARD indicated an original VA rating of 50% for his PTSD with cognitive disorder NOS apparently based upon resulting in reduced reliability and productivity. The remote VARD also indicated that the CI failed to report for a scheduled repeat VA exam in October 2007 and noted, “…in the absence of symptoms indicative of deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, a 50% evaluation continues”.

The Board directed attention to its rating recommendation based on the above evidence. It must be noted that the available “actual” VA evidence in this case was fairly remote from separation (nearly 2 years) and what transpired near the time of separation (in regards to VA) was summarized from the remote documents. DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence; but, limits the Board’s authority to evaluating the fairness of Disability Evaluation System fitness determinations and rating decisions for disability at the time of separation. Therefore, examination probative value in this case is exclusively given to the NARSUM and other appropriate service treatment records based upon the close time reference to service separation. Board members first acknowledged that the PEB’s statement in regards to “duty performance” was old information based upon the commander’s first and early evaluation of the CI, which dramatically changed in the commander’s second statement, which potentially could result in a greater degree of disability compensation. The Board then considered if application of VASRD §4.129 with a constructional 6 month (50% minimum) period on the temporary disability retirement list (TDRL) was indicated in this case (per Board directive from DoD). It was easily conceded that the CI’s symptoms with documented Criterion A stressors was justified as a “highly stressful event” per §4.129. The question arises in this case, however, whether it satisfies the §4.129 requisite that the mental health condition was “a result of” the service stressor. Members agreed that based upon the corroborated e-mail from the CI’s First Sergeant acknowledging enemy attacks near their position did support the CI’s condition being the result of a service stressor and therefore concluded that the cause-and-effect nexus for application of §4.129 was supported and practical in this case and the Board will provide a recommendation for a §4.130 based separation rating based on evidence. Board members then deliberated the appropriate §4.130 rating recommendation for the mental health condition at separation. The deliberation settled on arguments for a 50% versus a 70% impairment rating recommendation. Board members considered the CI’s history of two psychiatric hospitalizations (last hospital admission was within 6 months of separation), repetitive homicidal ideations associated with “urges” to act upon such ideas, poor impulse control affecting his ability to function independently and the inability to maintain effective relationships clearly exceeded the 50% impairment level.

Therefore, the Board unanimously agreed that the §4.130 threshold for a 70% rating was met in this case and that the criteria for the mandated 50% was exceeded. In regards to the permanent rating recommendation, all Board members agreed that the §4.130 rating remain the same (70%) in light of the lack of evidence to show any improvement, or worsening of the unfitting mental health condition. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a 6 month retroactive TDRL rating of 70% and a permanent rating of 70% for the anxiety disorder/PTSD condition.

Bilateral Knee Pain Condition. The CI’s STR indicated a 3-week history of right knee pain secondary to ruck marching and running in June 1999. On initial evaluation, he was diagnosed with retro-patellar joint syndrome (RPJS), and treated conservatively with medication and physical therapy. An additional complaint of left knee pain (without new injury) surfaced in December 2001. Bilateral knee X-rays and left knee MRI were normal. Most record entries focused on the left knee complaint, with few notes referring to a bilateral condition. Clinical notes consistently documented knee ROM as full or at least 120 degrees of flexion. The NARSUM dated 29 March 2005 cited the CI’s limitations and specifically stated, “…he may take an alternate PFT event.” The examination revealed bilateral painful motion and patellar grind. There were no findings of knee crepitus, guarding, instability, or effusion. There was no surrounding atrophy or edema. Although the NARSUM did not comment on the CI’s gait, the DD Form 2808 (4 months later) documented an “antalgic gait.” The permanent profile implicated bilateral painful knees. Although the VA separately rated each knee at 10%, absent post-separation VA documents it cannot reasonably be assumed that there was no compensable ROM impairment or ratable instability captured at the VA examination.

The Board directed attention to its rating recommendation based on the above evidence. The Board first considered if each knee, having been de-coupled from the combined PEB adjudication, could be reasonably justified as separately unfitting. The well-established principle for fitness determinations is that they are performance-based. In this case, the evidence of clinical encounters revealed that the left knee was assessed more often as the sole condition as compared to the right knee possibly implying a worse medical condition. However, the STR revealed that the attendant physical findings were exactly the same when compared bilaterally. It is speculative to conclude that the disability confined to a single knee would not have rendered the CI incapable of performing his MOS; but, it is also reasonable to surmise that it was the combined effect of both knees which rendered him unfit. Furthermore, the bilateral diagnosis supported a single 5003 based rating for “2 or more major joints”; thus there is VASRD §4.71a latitude for a bilateral rating. The board reviewed the evidence for the bilateral knee condition at the time of separation which is the time of the retroactive entry onto the TDRL and consensus was that the condition most closely met the 10% criteria for painful motion. The board then reviewed the evidence to determine the most accurate rating for the bilateral knee condition at the end of the notional 6 month TDRL period and determined the condition remained at the combined 10% rating for painful motion applying VASRD 4.59.


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. As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating the bilateral knee condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the anxiety disorder/PTSD condition, the Board unanimously recommends an initial TDRL rating of 70% in retroactive compliance with VASRD §4.129. The Board unanimously recommends a permanent disability rating of 70% at 6 months following separation, IAW VASRD §4.130. In the matter of the bilateral knee condition and IAW VASRD §4.71a, the Board unanimously recommends a rating of 10%, coded 5099-5003 IAW VASRD §4.71a. 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: TDRL at 70% for six months following the CI’s prior medical separation and then permanent disability retirement with a final 70% rating as indicated below.


UNFITTING CONDITION VASRD CODE TDRL RATING PERMANENT
RATING
Anxiety Disorder/PTSD 9411 70% 70%
Bilateral Knee Condition 5099-5003 - 10%
COMBINED 70% 70%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131104, 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, AR20150011169 (PD201302190)


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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 70% effective the date of the individual’s original medical separation for disability with severance pay.

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 permanent disability retirement 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 date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 70% effective the date of the original medical separation for disability with severance pay.

         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                       XXXXXXXXXXXXXXX
                           Deputy Assistant Secretary of the Army
                           (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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