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AF | PDBR | CY2013 | PD2013 00097
Original file (PD2013 00097.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1300097
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20130725
SEPARATION DATE: 20080630


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SGT/E-5 (1371/Combat Engineer) medically separated for left posterior horn medial meniscus tear (knee) and anterior inferior left shoulder labral tear. The CI sustained injuries when diving over a radio inside his Humvee during a blast while serving in Operation Iraqi Freedom in November 2004. Subsequent to this episode, he developed chronic pain in his ankle, knee and shoulder that was refractory to conservative management and physical therapy. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was placed on limited duty [LIMDU] and referred for a Medical Evaluation Board (MEB). The left posterior horn medial meniscus tear and anterior inferior left shoulder labral tear conditions, were forwarded to the Informal Physical Evaluation Board (IPEB) IAW SECNAVINST 1850.4E. The MEB also identified and forwarded two other conditions for PEB adjudication. The IPEB adjudicated left posterior horn medial meniscus tear, anterior inferior left shoulder labral tear and remote contusion of left talus and proximal first and second metatarsals with residual stiffness as unfitting, due to “overall effect” IAW SECNAVINST 1850.4E. The CI appealed to the Formal PEB (FPEB), which changed the IPEB findings and ratings to left posterior horn medial meniscus tear and anterior inferior left shoulder labral tear rated at 10% for each (combined 20%) with application of Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting and determined to be C ategory III . The CI then appealed to the Navy Review Board but was informed that he did not meet the threshold requirements for consideration.


CI CONTENTION: “My separation from active duty after deployment in 2005 was unlawful and I did not have a thorough evaluation. The law mandates when a wounded service-member returns from a combat zone he/she is to remain on active duty till a medical board can determine if the service member’s injury, illness, or disease has become unfit to perform his/her duties. Furthermore the law states anything that transpires within one year after a deployment can be attributed and related to the service-members combat experience. The Chain of Command informed us that we would be removed from active duty and that our status would change to a medical hold without pay. Which is not what the law states. Also, my service related & unfitting conditions (6399-6354-Chronic Multi-symptom Undiagnosed Illness Manifested by Fatigue, Muscle/Joint Pain, Neuropsychological Symptoms, Sleep Disturbance. Gastrointestinal Symptoms, Abnormal Weight Loss, and Headaches. 7328-Midgut Malrotation, Status Post Resection of Small Intestine claimed as Small Gut Syndrome) were direct correlation to this law. I returned from deployment in June 2005. My service related & unfitting conditions occurred in April of2006. These combat related conditions were not thoroughly considered and evaluated. Also, I should have been better evaluated for my Post-Traumatic Stress Disorder (9411), Residuals, contusion of left talus and proximal first and second metatarsals (5271-5024), Pseudo folliculitis Barbae (7899-7806), Residuals of traumatic Brian Injury (TBI) (8045).”


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 ratings for the unfitting Left knee and left shoulder conditions; as well as the contended remote contusion of left and proximal 1st and 2nd metatarsals with residual stiffness (left foot); posttraumatic stress disorder (PTSD); and, resection of small intestine (abdominal) conditions; are addressed below. No additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 Naval Records.


 RATING COMPARISON :

Service FPEB – Dated 20080131
 VA - (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Left Posterior Horn Medial Meniscus Tear 5257 10% Posterior Horn Medial Meniscus Tear of the Left Knee 5204 10% 20080214
Anterior Inferior Left Shoulder Labral Tear 5201 10% Residuals, Anterior Inferior Left Shoulder Labral Tear 5201 10% 20080214
Remote Contusion of Left and Proximal First and Second Metatarsals with Residual Stiffness CAT III Residuals, Contusion of Left Talus and Proximal First and Second Metatarsals 5271-5024 10% 20080214
Post-Traumatic Stress Disorder CAT III Posttraumatic Stress Disorder 9411 30%
20090420		 20090623
Resection of Small Intestine CAT III Midgut Malrotation, Status Post Resection of Small Intestine 7328 NSC 20080214
No Additional MEB/PEB Entries
 Other x 2
Combined: 20%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 20 110324 ( DRO ratings backdated to date of separation, combined changed to 50% effective 20090420 then 60% effective 20101004) .


ANALYSIS SUMMARY: The FPEB findings dated 26 March 2008 with its attached rationale signed 29 February 2008 detailed the CI’s traumatic injuries of the left shoulder, knee and foot, as well as fitness considerations for the foot, PTSD, and abdominal conditions.

Left Posterior Horn Medial Meniscus Tear [Left Knee] Condition. At the MEB exam and FPEB appearance, the CI reported difficulty walking up and down stairs, squatting, running or jumping. He could not walk greater than one quarter mile. He denied swelling and used non-narcotic pain medication, ice and elevation to relieve pain. He was recommended for arthroscopic knee surgery, which did not occur. The MEB physical exam noted left knee medial joint line tenderness, full range-of-motion (ROM), stability to Lachman test as well as varus and valgus. There was no posterior sag or patellar instability. The DD Form 2808 noted a click with left knee tenderness. Magnetic resonance imaging (MRI) scan and plain films in November 2005 revealed a posterior horn medial meniscal tear.

At the VA Compensation and Pension (C&P) exam performed 4 months prior to separation, the CI reported trauma to his left knee with instability, pain, stiffness, weakness, tenderness and flares. He denied giving way. Exam demonstrated normal gait and ROM was 0-135 degrees (normal 0-140 degrees) with no painful motion. The examiner commented on the musculoskeletal exams as: “(The CI) performed very purposeful movements during the exam yet was relaxed and active otherwise given the level of pathology found on radiographic exam it is this examiner's opinion this veteran was less than motivated during the exam. No effusion to knees or ankles, no redness or warmth, patella mobile and no lateral instability, able to flex and extend hallux to each foot without difficulty. No muscle atrophy.”

The Board directs attention to its rating recommendation based on the above evidence. The FPEB rated the knee as 5257 (knee, other impairment of: recurrent subluxation or lateral instability) at 10% (slight). The VA rated the knee as 5024 (tenosynovitis) at 10%. The Board considered both meniscal and ROM-based rating codes [5257-5262] for the left knee. There were no compensable ROM limitations for direct coding under flexion or extension. There was no evidence of frequent episodes of “locking,” pain, and effusion into the joint for a higher meniscal rating, and meniscal rating at 10% under 5259 includes painful motion, so no dual rating is achievable. Although ideal coding would be under 5259 at 10%, there is no benefit to the CI for changing the code, and 5257 coding at 10% was reasonable. 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 FPEB adjudication for the left knee condition.

Anterior Inferior Left Shoulder Labral Tear Condition. The record indicated that the CI is right-hand dominant. At the MEB exam and FPEB appearance, the CI reported pain in his shoulder and inability to do pull-ups. He reported a pinching sensation over the anterior aspect of the left shoulder. Work above the level of the shoulder was difficult and he related occasional popping with pain in the upper back. He was not taking medications and was engaged in therapy. MEB physical exam, 9 months prior to separation, noted no apprehension. No formal ROM was recorded in the narrative summary (NARSUM). The examiner stated there was “pain at the extremes of external rotation and internal rotation, positive labral signs but no impingement signs. He appears to have a stable shoulder without any evidence of anterior-posterior subluxation.” The examiner stated “the (CI) does not wish to proceed with operative intervention, although based upon his diagnostic studies and physical exam, diagnostic and therapeutic arthroscopy could be indicated.” The DD Form 2808 noted tenderness to palpation at the insertion of the teres minor and “abduction to 90⁰ (normal 180⁰) stopped due to pain internal/external rotation and forward flexion bony(?) – full ROM but tender at same point as abduction.” Prior MRI scan reported a tear in the glenoid labrum and X-rays showed no bony abnormalities. The diagnosis was anterior inferior left shoulder labral tear.

At the C&P exam performed 4 months prior to separation, the CI reported left shoulder instability, pain, stiffness, weakness, swelling and tenderness with flare-ups. Examination showed the left shoulder appeared normal with no objective evidence of abnormalities. ROM testing revealed flexion and abduction to 170 degrees (normal 180 degrees) with no evidence of pain on motion. The examiner stated “given the level of pathology found on radiographic exam it is this examiner's opinion this veteran was less than motivated during the exam.” X-ray was normal. The examiner did not provide a diagnosis and indicated there was no pathology. Remote VA exam in October 2010, 20 months after separation documented ROM with abduction of 0-100 degrees (normal 0-180 degrees) and flexion of 0-90 degrees (normal 0-180 degrees).

The Board directs attention to its rating recommendation based on the above evidence. The PEB and the VA coded the left (minor) shoulder as 5201 (arm, limitation of motion) at 10%. All exam documented painful motion of the shoulder to warrant a 10% rating IAW VASRD §4.59 (painful motion). The only exam documenting motion limited to the shoulder level (~90 degrees for 20% rating) was the separation exam. The Board considered the probative value of the exams and adjudged the VA pre-separation exam was closest to the date of separation and had the highest probative value for rating at separation. The Board deliberated between the 10% and 20% ratings and considered the tenants of VASRD §4.7 (higher of two evaluations). However, the Board adjudged that the CI’s disability picture at the time of separation did not more nearly approximate the criteria required for the higher rating. The ideal coding would be an analogous code to 5024 (tenosynovitis) at 10%, as code 5201 does not have a 10% rating criteria. However, as the FPEB and VA rated the condition similarly, it was adjudged a historically acceptable application of the VASRD 5201 coding and rating. 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 left shoulder condition.

Contended PEB Conditions (Remote Contusion of Left and Proximal First and Second Metatarsals with Residual Stiffness [left foot]; Posttraumatic Stress Disorder [PTSD]; and, Resection of Small Intestine [Abdominal]). The Board’s main charge is to assess the fairness of the PEB’s determination that the left foot, PTSD, and abdominal contended not unfitting 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. The left foot, PTSD, and abdominal conditions were not implicated in the commander’s non-medical assessment statement and were not listed on any LIMDU.

Left Foot Condition: The left foot condition was forwarded on the MEB and was part of the overall effect unfitting determination by the IPEB. The CI had chronic ankle and foot pain with and a history of a contusion to his talus and his proximal metatarsal. At the MEB exam the CI was unable to do a toe rise, had normal ROM in dorsiflexion and plantar flexion and “modest stiffness at inversion and eversion.” There was no neurologic or vascular abnormality. The DD Form 2808 documented mild pes cavus. An MRI in 2005 was significant for contusion of the talus and the metatarsals, without fracture. Plain radiographs of the left foot proximate to the NARSUM revealed no significant osseous abnormalities. At the C&P exam performed 4 months prior to separation, the CI reported instability, pain, stiffness, weakness, tenderness, and flares every 2 to 3 weeks with activities being the precipitator. Exam documented normal ankle ROM of 20 degrees dorsiflexion and 45 degrees of plantar flexion with no objective evidence of painful motion. Gait was normal. Remote VA exam in October 2010, documented dorsiflexion limited to 10 degrees and plantar flexion to 35 degrees with a normal gait which the VA rated at 10% for moderate limitation of motion.

The Board considered that there may have been overlap of symptoms and duty impairment from the left knee condition impacting the left foot/ankle condition. 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 FPEB fitness determination for the contended left foot condition and so no additional disability rating is recommended.

PTSD Condition: The PTSD condition was not noted in the NARSUM, MEB or IPEB, but was determined to be Category III [conditions that are not separately unfitting and do not contribute to the unfitting condition(s)] by the FPEB. The CI’s Petition for Relief was not accepted for review and there was no evidence of a BCNR application.

The CI was referred for evaluation “to help document cognitive deficit secondary to IED blast” and was tested on 24 October 2007, 8 months prior to separation. “He reported concentration problems and distractibility but not attention difficulty on organizing/planning problems. Mood was reported as good in general and affect was appropriate. He reported symptoms of PTSD (violent movies bring back bad memories), but not thoughts or suicide or homicide.” Testing was considered valid and the examiner indicated that “while he endorsed some PTSD-related items on PA1, these were insufficient to suggest a diagnosis of PTSD on the one hand but when compared to clinical groups his overall profile is closer to PTSD patients than to other clinical groups. … He does not see himself as markedly distressed and is less motivated for treatment than most people seen in clinical settings despite the fact that his cognitive symptoms are likely due to his level of distress.” The clinical psychologist examiner opined that the CI was unfit for full duty and recommended treatment. The FPEB rationale stated that the CI endorsed “that he still experiences nightmares, avoids movies with violence, has become more forgetful and that retaining information has become more difficult. Additionally, he related some panic attacks and depression. He missed 10 days of work from his job as an academic advisor at Liberty University. He has participated in both marital counseling and a Bible Study group which he has found helpful. He is not on any medication and has not sought care on an emergent basis or been hospitalized.”

The first VA PTSD exam was on 23 June 2009, a year after separation. The exam documented moderate symptoms including insomnia, dreams, anxiety, avoidance, isolations and panic attacks. Mental status examination demonstrated no evidence of a thought disorder or psychotic process. Mood was dysthymic with a sad affect. There was no significant suicidal ideations; the CI reported anxiety, panic attacks about once per month. There was poor insight and judgment appeared to be intact. The diagnosis was PTSD and the examiner stated: “While the (CI’s) PTSD symptoms appear to be moderate and impact on his cognitive, somatic, and affective functioning to at least a minimal extent, the impact on his behavioral and employment potential is unclear and undetermined presently.” The VA awarded a 30% rating based on that exam.

There was no performance based evidence from the record that any mental health condition 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 FPEB fitness determination for the contended PTSD condition and so no additional disability rating is recommended.

Abdominal Condition: The abdominal condition was not noted in the NARSUM, MEB or IPEB, but was determined to be Category III [conditions that are not separately unfitting and do not contribute to the unfitting condition(s)] by the FPEB. The CI underwent emergent abdominal surgery in 2006 for severe abdominal pain undergoing resection of a portion of the small intestine for a malrotation of the intestine. His symptoms proximate to separation were diarrhea from 6-8 times per day and intolerance to fatty foods. The FPEB rationale indicated: “His preoperative weight was 147 lbs and his current weight is 130 lbs and has been so for some time. At the present time, with the exception of the diarrhea, he is asymptomatic.” Per specialists, symptoms were compatible with "short bowel syndrome." The FPEB listed the abdominal condition as Category III (not unfitting), while the advisory indicated the condition was not related to military service. The abdominal condition was reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that any abdominal condition 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 abdominal condition and so 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. The Board did not surmise from the record or FPEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the left posterior horn medial meniscus tear and anterior inferior left shoulder labral tear condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the FPEB adjudications. In the matter of the contended remote contusion of left and proximal first and second metatarsals with residual stiffness (left foot); PTSD; and, resection of small intestine (abdominal) conditions, the Board unanimously recommends no change from the FPEB determinations as not unfitting. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Left Posterior Horn Medial Meniscus Tear 5257 10%
Anterior Inferior Left Shoulder Labral Tear 5201 10%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130301, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review







MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) CORB ltr dtd 17 Dec 13

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:
- XXXXXXXXXXXXXXXXXX former USMC


                                                      XXXXXXXXXXXXXXXXXX
                                                     Assistant General Counsel
                  (Manpower & Reserve Affairs)

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