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AF | PDBR | CY2013 | PD2013 00011
Original file (PD2013 00011.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1300011
BRANCH OF SERVICE: Army  BOARD DATE: 20130723
SEPARATION DATE: 20060831


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 ( 19D / Cavalry Scout ) medically separated for chronic right hip pain status post (s/p) shrapnel wound from an improvised explosive device ( IED ) blast in January 2006 penetrating the abdomen and causing a non-displaced fracture of the right acetabular dome, right hip joint. The Medical Evaluation Board ( MEB ) forwarded posttraumatic stress disorder (PTSD) and bilateral hearing loss to the PEB as not meeting retention standards IAW AR 40-501. The MEB also identified and forwarded three other conditions that met retention standards ( u rinary tract flow difficulties; p are s thesias to both right thighs; and s ome vague minor discomfort in the abdominal wall when lying down ) for Physical Evaluation Board ( PEB ) adjudication. The PEB adjudicated “ shrapnel wound from an IED blast (10 A/C), penetrating the abdomen and causing a non-displaced fracture of the right acetabular dome, right hip joint ” as unfitting, rated 10 %, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy . The remaining conditions were determined to be not unfitting. An administrative correction to the PEB findings a dded the following statement, “h is PTSD is essentially revolved [ sic ] and he is doing well and his hearing toss is not so great as to require hearing aid.” The CI made no appeals, and was medically separated .


CI CONTENTION: “I was part of the Ft. Carson group in 2006 whose initial med board evaluations were not properly handled. The PEB rated me 10% slight hip pain which is severe. My VA initial rating was 30% for hip and 70% for PTSD which the PEB did not rate. I have to wear hearing aids tor bilateral hearing loss. The discomfort to abdomen is 30% with VA. I have 10% from VA on abdominal scar. Nerve damage at 10% to thigh. The Med board didn't rate me tor PTSD even though l was an inpatient at Evans Army Hospital and was being seen by a Psychiatrist and going to group and continued going after I was released from the Hospital. I still go to PTSD sessions and see a Psychiatrist and a Psychologist every week. I can’t hold a relationship with a woman nor friends. I can’t hold employment unless it’s with wounded warriors or other veterans and that is temporary. I hardly sleep and I sweat from having nightmares. At the time I was on a lot of narcotics and a lot of sleep meds enough to tranquilize a horse. I failed retention standards tor PTSD and Bilateral Hearing loss yet l was not rated for it because of my rank and PMOS. The VA gave me 70 % for PTSD. My hip experiences severe pain and I have no idea how they turned into slight hip pain. I was awarded 30% for the hip. Till this day receive physical therapy for it and my right leg is shorter because of the hip damage, hip has limited range of motion and shows signs of severe trauma. The shrapnel that flew through me damaged my intestines and organs so the VA gave me 30% for that yet the med board stated some vague minor discomfort to abdominal wall which even the scar that causes pain was 10% from the VA. I had a large piece of shrapnel fly through my left groin and fly through my bladder piercing it twice, severing my large intestine and fracturing my bones. I have had a hard time since I was separated and now I visit the VA 20 to 30 times a month for appointments. I found out through my Congressman recently that in 2008 the PDBR was created for this type of issue. I would like all 6 things listed on my PEB to be reconsidered so I can be retired. I have 2 Purple Hearts.”


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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting right hip shrapnel injury condition is addressed below. The requested PTSD, bilateral hearing loss, urinary tract flow difficulties, bilateral thigh paraethesias, and lower abdominal wall pain conditions, which were determined to be not unfitting by the PEB, are likewise addressed below. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20060808
 VA - (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam

Chronic Right Hip Pain, s/p Shrapnel Wound from an IED Blast (10 A/C), Penetrating the Abdomen & Causing a Non- displaced Fracture of the Right Acetabular Dome, Right Hip Joint. Required Incision & Debridement of Right Hip Joint w/ Residuals of Chronic Right Groin & Hip Pain
5099-5003 10% Right Hip Shrapnel Injury with Acetabulum Fracture 5010-5313 30% 20061024
PTSD Not Unfitting PTSD and Depression with Sleep Impairment 9411 70% 20061030
Bilateral hearing Loss Not Unfitting Tinnitus 6260 10% 20061024
Bilateral Hearing Loss 6100 0% 20061024
Urinary tract flow difficulties Not Unfitting Urinary Tract Abnormalities 7517 0% 20061024
Paraethesias to both right thighs Not Unfitting Femoral Nerve Distribution Injury, Left Thigh 8526 10% 20061024
Ilio-Inguinal Nerve Injury, Right Thigh 8530 0% 20061024
abdominal Wall Discomfort Not Unfitting Painful Adhered Scar, Lower Abdomen 7804 10% 20061024
No Additional MEB/PEB Entries
 Other x 6 20061024
Combined: 10%
 Combined: 90%
Derived from VA Rating Decision (VARD) dated 20070214 ( most proximate to date of separation [DOS]).


ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB. However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.
Chronic Right Hip Pain, Status Post Shrapnel Injury Condition. According to the MEB narrative summary (NARSUM) and service treatment records, the CI was struck by shrapnel from an IED blast on 17 January 2006 that penetrated his lower abdomen near the left groin. He underwent surgical repair of the bladder and colon and the IED fragment was removed from the iliac fossa of the pelvis. Initial post-operative recovery was uneventful. Due to complaint of right hip pain, a CT scan exam of his abdomen and pelvis, 27 January 2006, identified a right pelvic abscess adjacent to the right acetabular dome (pelvis portion of the hip joint) and a non-displaced fracture of the right acetabular dome raising concern for extension of the abscess into the right hip joint. The pelvic abscess was successfully drained by percutaneous placement of a drain. The right hip was surgically explored, drained and irrigated. After 2 weeks of hospitalization, the CI was discharged home on 10 February 2006. His condition was considered stable and he was released to a 30-day convalescent leave and rehabilitation. Radiologic exams from March, April and June 2006 evidenced a normal right hip and sacro-iliac joint. At a 10 March 2006 follow up in the clinic (6 weeks after hip surgery), hip pain was rated 3 on a 10 scale with use of Percocet twice daily. The CI reported difficulty with right hip adduction. Examination noted decreased hip adduction and abduction. Gait was recorded as normal. A 3 April 2006 neurology examination for bilateral thigh numbness noted a limping gait and give-way weakness of both hips. There was no muscle weakness or atrophy. Electrodiagnostic testing on 10 April 2006 evidenced sensory nerve injury but no motor nerve injury. The 10 April 2006 neurology exam noted gait and stance were normal. There were no recurrent infections and after completing 4 months of physical therapy for the hip, the CI was placed on a permanent profile and MEB was initiated. An orthopedic examination on 20 June 2006 noted moderate right hip pain. On examination there was an antalgic gait. The right range-of-motion (ROM) was flexion to 110 degrees, internal rotation 20 degrees, external rotation 30 degrees, and abduction 30 degrees, with pain reported at extremes of motion. X-rays of the right hip were normal without loss of cartilage (chondrolysis) or degenerative changes. The MEB NARSUM physical exam noted the CI complained of constant pain in the right hip and groin area, rated 6/10 (10 being the maximum level of pain experienced) and exacerbated by prolonged standing. He stated he could not run, walk long distances, or carry more than 20 pounds. On examination there were “no significant abnormalities in his gait.” Right hip ROM was flexion 95 degrees, extension 38 degrees, internal rotation 10 degrees, external rotation 30 degrees, abduction 42 degrees, and adduction 29 degrees, with “some pain,” and without mechanical blocks. There was no weakness. At the VA Compensation and Pension (C&P) exam performed on 26 October 2006, 2 months after separation, the CI reported pain and stiffness of the right hip. He rated the pain as 8/10, occurring all day, daily. He was walking with a mild limp on the right leg, without any ambulatory device. He was able to do activities of daily living; however he reported that driving was limited and he needed assistance with dressing. Right hip active ROM was flexion 90 degrees extension 20 degrees, adduction 15 degrees, abduction 25 degrees, and internal rotation 20 degrees. Hip flexion was limited by pain and weakness after repetitive use. Hip extension limited by pain after repetitive use without fatigue or weakness. There was mild tenderness to palpation in the area of the right greater trochanter (lateral aspect of the hip). No inflammation was noted. There were no functional limitations on standing and walking, however the examiner concluded there was major functional impact attributed to pain, fatigue and weakness after repetition. Right hip X-ray exam noted questionable soft tissue calcification adjacent to the right trochanter (possible artifact) but no other abnormalities. A magnetic resonance imaging scan on 15 August 2007 was normal (a year after separation). VA records reflect employment as a security guard for 2 years ending in November 2008.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the right hip condition 10%, coded 5099-5003 with application of the USAPDA pain policy. The VA assigned a 30% disability rate citing moderately severe muscle disability and adjudicated the right hip condition analogously to code 5313 ( G roup XIII function- hip and knee movement). The ROM results from the orthopedic, MEB NARSUM and C&P examinations did not support a minimum rating under the codes for limitation of motion (5251, 5252, or 5253). While there was evidence of non - displaced acetabular fracture, according to subsequent exams and radiologic reports, the fracture was fully healed without arthritis or malunion . A 10% disability rating is supported considering painful motion (§4.59) or functional loss (§4.40). The Board considered the approach used by the VA for rating analogously using a muscle code. There was no muscle injury or any motor nerve injury. Examinations prior to separation did not demonstrate muscle weakness, and post separation employment as security guard was documented in VA records leading the Board to conclude the moderately severe level of impairment was not supported under the muscle code used by the VA. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right hip shrapnel injury condition.

As detailed below, the Board recommends an unfit determination for PTSD with application of §4.129. By policy and precedent the Board will assess a permanent rating recommendation for the unfitting chronic right hip pain status post shrapnel injury condition based on the highest probative value information available describing the condition at 6 months post separation (per retroactive application of §4.129 as above). Based on the evidence previously reviewed above, all Board members agreed no change in the rating at the end of the constructive period of retroactive Temporary Disability Retired List (TDRL) was warranted.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that contended PTSD, bilateral hearing loss, urinary tract flow difficulties, bilateral thigh paresthesias, and lower abdominal wall pain conditions were not unfitting. The Board’s threshold for countering fitness determinations 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.

Contended PTSD. The CI participated in two combat deployments with his unit and incurred superficial shrapnel injuries from an IED in May 2005, and a serious IED shrapnel injury in January 2006 (described above). While in the hospital in February 2006, the CI underwent psychiatric evaluation as he complained of flashbacks, nightmares, trust issues, and discomfort in crowded spaces. He was treated with medication, individual and group therapy. The commander’s letter noted the CI was slightly depressed and withdrawn due to his physical condition. At the time of the 23 June 2006 MEB mental health evaluation the CI reported ongoing re-occurring nightmares, insomnia, flashbacks, difficulty with memory and concentration, irritability with angry outbursts, a sense of detachment, anxious and sadness. Medication had helped with sleep “considerably.” Mental status examination noted the CI to be cooperative, engaged, and attentive without evidence of thought disorder. Testing reflected intact cognitive functioning consistent with functioning prior to injuries. The psychiatric diagnosis was PTSD, chronic, with marked impairment for military duty and definite impairment for social and industrial adaptability. The examining psychiatrist noted the two combat deployments and concluded the CI would not be able to return to combat duties. An S3 profile was recommended. The CI was not considered an imminent danger to himself or others, and was competent for pay purpose and participation in the MEB process. At the time of the MEB NARSUM examination on 29 June 2006, the CI reported “irritability and impatience” after his first deployment to Iraq (2004). He did not request any mental health evaluation or treatment and went for a second deployment to Iraq (2006) when he received a lower abdominal and right hip injury caused by an IED fragment. The CI stated that during his second deployment he witnessed his best friend being shot. Following initial psychiatric evaluation while hospitalized for the IED injury, the CI was treated with medication and psychotherapy. No inpatient psychiatric admission was recommended at any time. The CI reported he felt “improved 80% overall.” Medications (Prozac and Restoril) were well tolerated and effective. He was sleeping 7 hours per night, denied any suicidal or homicidal ideations. The CI stated his other symptoms improved as well and he stated “I’m a much better person to be around now.”

The Board considered whether the PTSD condition was unfitting for continued military service. The Board discussed the significant differences between the reported symptoms at the time psychiatry evaluation when continued symptoms with only a little improvement were reported as opposed to the MEB NARSUM where symptoms were reported by the CI to be 80% improved. The commander’s letter reported observing slight symptoms while in-garrison. The Board carefully considered the psychiatry NARSUM discussion regarding the CI’s prognosis for the ability to return to combat duty and concluded the PTSD condition rendered the CI unfit for full duty. In accordance with DoDI 6040.44 and DOD guidance, which applies current VASRD §4.129 to all Board cases, the Board is obligated to recommend a minimum 50% rating for a retroactive 6-month period of TDRL for unfitting PTSD cases where grant of relief is appropriate. The Board must then determine the most appropriate fit with VASRD §4.130 criteria at 6 months for its permanent rating recommendation. All Board members agreed that the §4.130 criteria for a rating higher than 50% were not met at the time of separation, and therefore IAW §4.129 the minimum 50% TDRL rating is applicable. The Board then turned its attention to the permanent rating at the end of the 6-month constructive period of TDRL. The most proximate sources of comprehensive evaluation upon which to base the permanent rating recommendation in this case are the MEB NARSUMs and a VA psychiatric C&P evaluation performed 2 months after separation. At the VA C&P exam, 2 months after separation, the CI had been recently hospitalized for 4 days with suicidal ideation and his fiancé had broken up with him. He complained of “horrible anxiety,” impaired concentration, paranoia, and recurring nightmares. He stated he first noticed the symptoms in 2003 after first tour to Iraq. After second tour to Iraq, he felt his symptoms were worse and expected to die young. He stated he had no motivation and experienced crying spells. He had low motivation to do household chores or involve in social life. The CI was living with his girlfriend and had just started his first job (security). On examination, the CI was clean and neatly dressed and groomed, cooperant and pleasant with normal communication and thoughts process. He was fidgety and the examiner noted he tended to be histrionic in his response to life events. There was no history of panic attacks, long term memory was intact, no history of obsessive or ritualistic behavior. The CI had good insight and judgment, good cognition, and no evidence of psychosis. He described his mood as “depressed,” with low energy and had difficulties concentrating. The examiner diagnosed the condition as PTSD and depression, assigned a Global Assessment of Functioning of 50 with a fair psychosocial functioning and fair prognosis. VA evaluations from 2009 record continued employment in security for 2 years until he was terminated in November 2008 for not following procedures for family medical leave of absence; however, according to the March 2009 C&P examination, “…he was told he could be rehired shortly but finds their system too stupid to tolerate.” The examinations also record persistent chronic symptoms of PTSD and prescription drug abuse.

As regards to the permanent rating recommendation, all members agreed that the §4.130 threshold for a 70% rating was not approached. The Board noted the VA 70% rating was based on the C&P examination 2 months after separation when the CI had just experienced a breakup with his fiancé. However immediately following that examination he remained continuously employed for 2 years. Social and occupational impairment consistent with a 50% evaluation “occupational and social impairment with reduced reliability and productivity” could be surmised from some of the documented symptoms at the time of the C&P examination including anxiety, depressed mood with low energy, difficulties concentrating, paranoia, recurring nightmares, crying spells and low motivation. However, on examination the CI was observed to be pleasant with normal communication and thought processes. There were no panic attacks, no history of obsessive or ritualistic behavior, and no evidence of psychosis. Long term memory was intact with good cognition. Insight and judgment were also considered good by the examiner. Further, this examination was performed at a time of a transient stressor, the break-up with his girlfriend and evidence indicates full time employment for 2 years following this examination. All members agreed the 50% rating was not approached. While the CI was able to gain employment subsequent VA examinations documented continued problems with symptoms of PTSD with intermittent inability to perform occupational tasks consistent with the 30% rating. All members agreed that the disability picture did not more nearly approximate the 10% rating than the 30% rating. Therefore, the Board recommends an unfit determination with application of §4.129, a period of TDRL with a 50% rating and a permanent 30% rating at the time of removal from TDRL for the PTSD condition.

Contended Bilateral Hearing Loss, Urinary Tract Flow Difficulties, Bilateral Thigh Paresthesias, and Lower Abdominal Wall Pain.

Bilateral Hearing Loss. Audiology report from 7 February 2006 noted severe high frequency sensorineural hearing loss in both ears at 4000 Hertz and above. Speech discrimination was normal and a hearing aid was not indicated. An H3 profile was assigned. The VA audiometry C&P examination in October 2006 recorded similar results with good speech recognition (100% right, 96% left ear). In accordance with Army Regulation 40-501, hearing loss with an H3 profile is not disqualifying for continued military service.

Urinary Tract Flow Difficulties. The CI experienced difficulties with reduced urinary flow. Urinary tract flow difficulties: cystogram and voiding cystourogram study from February 2006 evidenced an intact bladder without rupture, extravasation or any other abnormal findings. A 9 June 2006 urology evaluation noted an abnormal urine flow and recommended cystoscopy followed by additional urodynamic study if needed. However, the CI declined to have any additional evaluation or intervention done.

Bilateral Thigh Paresthesias. The CI complained of tingling and decreased sensation over both thighs. Neurology evaluation with electrodiagnostic studies confirmed sensory nerve injury without motor neuropathy or evidence of any radiculopathy. Neurologic exam did not find evidence of any weakness and the CI stated he did not feel his symptoms interfered with his ability to do his MOS or be a soldier.

Lower Abdominal Wall Pain. At the time of the MEB NARSUM, the CI stated it felt like a “pull” when he lied down, did not hurt to touch, and that his symptoms were minor and that he had no problems with his abdomen. He reported he could do 50 sit-ups at a time. On examination the abdominal scars were non tender without diastasis (separation defect) or ventral hernia noted.

The hearing loss, urinary tract flow difficulties, thigh paresthesias and abdominal wall pain were
reviewed and considered by the Board. There was no performance based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance. After due deliberation 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 contended hearing loss, urinary tract flow difficulties, thigh paresthesias and abdominal wall pain, and no additional disability rating is 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. As discussed above, PEB reliance on the USAPDA pain policy for rating right hip shrapnel injury was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the right hip shrapnel injury condition, the Board unanimously recommends a disability rating of 10%, coded 5010-5313 IAW VASRD §4.71a, at time of placement on TDRL and permanent disposition. In the matter of the contended PTSD, the Board unanimously recommends an unfit determination with an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed, and a 30% permanent rating at 6 months IAW VASRD §4.130. In the matter of the contended bilateral hearing loss, urinary tract flow difficulties, bilateral thigh paresthesias, and lower abdominal wall pain 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 as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
TDRL PERMANENT
Right Hip Pain s/p Shrapnel Injury 5099-5003 10% 10%
PTSD 9411 50% 30%
Bilateral hearing Loss Not Unfit -- --
Urinary tract flow difficulties Not Unfit -- --
Paresthesias to both right thighs Not Unfit -- --
Lower Abdominal Wall Pain Not Unfit -- --
COMBINED
 60% 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130113, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130019928 (PD201300011)


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 40%.

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 40% 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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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