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AF | PDBR | CY2013 | PD2013 01160
Original file (PD2013 01160.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1301160
BRANCH OF SERVICE: Army  BOARD DATE: 20140410
SEPARATION DATE: 20041014


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SPC/E-4 (31W/Military Working Dog Handler) medically separated for a chronic left knee condition. He complained of left, then bilateral, knee pain in 2004 following a mobilization to Kuwait and Iraq; and, was placed on medical hold. He was diagnosed with chondromalacia (cartilage disease under the knee cap) of the left knee; and did not improve adequately with conservative management to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile (bilateral knees) and referred for a Medical Evaluation Board (MEB). Bilateral knee pain was addressed in the MEB narrative summary (NARSUM); but, only the left knee condition, characterized as “chronic left knee pain, chondromalacia, osteoarthritis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted. The PEB adjudicated the knee condition as unfitting, rated 10%, referencing the US Army Physical Disability Agency (USAPDA) pain policy. The CI submitted a rebuttal (referencing only combat connection), but the PEB and the USAPDA affirmed the original adjudication; and the CI was medically separated.


CI CONTENTION: The CI elaborated no specific contention in his application.


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. In addition, the CI was notified by the Service that his case qualifies for review of his mental health (MH) condition in accordance with the Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were unfavorably changed or eliminated during that process. In response to said notification, it is presumed that the CI has elected review by this Board for the MH condition. Although the CI elaborated no contention related to any MH condition, it is noted that he received a post-separation VA rating for posttraumatic stress disorder (PTSD) and listed that condition (along with sleep apnea) on his application as a VA rated condition. Accordingly, the case file was reviewed for potentially unfavorable diagnosis change, fitness determination, applicability of VA Schedule for Rating Disabilities (VASRD) §4.129, and rating (via VASRD §4.129 or §4.130 as appropriate) of any MH condition diagnosed prior to separation.

The rating for the unfitting left knee condition and the presumptively contended MH condition are addressed below. No additional conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions (including the referenced sleep apnea) or contention not requested in this application remain eligible for future consideration by the Board for Correction of Military Records (BMCR).



RATING COMPARISON :

Service IPEB – Dated 20040818
 VA - Based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Chronic Left Knee Pain… 5099-5003 10% Bilateral Knee Condition 5257 Not Service Connected
No Additional MEB/PEB Entries
 Dysthymia, Anxiety 9405 Not Service Connected
Other x 4 STR
Combined: 10%
 Combined: 0%
Derived from VA Rating Decision (VA RD ) dated 200 50923 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Bilateral Knee Issue. The Board first addressed whether a bilateral knee condition, or separate knee adjudications, should be or could be proposed in this case. The NARSUM did not describe a greater acuity of one knee versus the other and did not provide a rationale on why only the left knee condition was entered as a diagnosis and submitted on the MEB DD Form 3947. A bilateral knee condition was listed on the L3 profile and the commander’s performance statement referenced bilateral knee pain. The evidence (elaborated below) does indicate that the left knee condition surfaced first and that the right knee pain developed as a possible consequence, although that was not stated with specificity in the record. There was separate pathology by imaging, with only the right knee demonstrating osteoarthritic changes (left findings below). The CI himself in a post-separation VA history (13 December 2010) attributed the pain in his right knee “to my military service and overuse due to my bad left knee.” There is also reference in a primary care note on 24 March 2004 from the STR that the CI was placed “on Medical Hold for evaluation of left knee,” although there is no corroboration of that fact elsewhere in evidence. It remains, nevertheless, that STR entries consistently address bilateral complaints and document separate evaluations; there is no compelling evidence that the left knee condition was significantly more severe or disabling than the non-adjudicated right knee. This notwithstanding, the Board’s greatest impediment to pursuing bilateral or separate adjudications in this case are the DoDI 6040.44 scope limitations as elaborated above. Only the left knee condition was adjudicated and strictly meets the DoDI 6040.44 prescribed authority for Board purview; although, the inherent association of both joints in this case and the absence of NARSUM or PEB clarification, could be argued as a link (admittedly tenuous) to Board eligibility. All members agreed after due deliberation, however, that the jurisdiction of this issue most legitimately resides with the BMCR; should the CI wish to pursue it.

Left Knee Condition. Although there are no corroborating STR entries in evidence, Med Hold treatment notes indicate a history of knee pain preceding the 2003-2004 mobilization that was exacerbated by pre-deployment training. The condition(s) did not prohibit or shorten the deployment, although the CI suffered ongoing knee pain, he was treated with anti-inflammatories during deployment. The earliest post-mobilization entry in the STR is dated 12 February 2004 and indicates a work-up in progress for bilateral knee pain. Magnetic resonance imaging (MRI) of the left knee was obtained on 1 March 2004 (right knee MRI was 3 weeks later) and demonstrated chondromalacia patellae with possible tears of the posterior cruciate and medial collateral (joint stabilizing) ligaments. A follow-up STR entry indicated that surgery (for possible ligament damage) had been considered, but the orthopedic consultant judged that the case was “non-surgical at this time.” Physical therapy, home exercises and anti-inflammatories were continued without resolution of symptoms. Various entries note that the joint was stable and that there were no recurrent effusions. There is no probative range-of-motion (ROM) evidence in the outpatient STR entries or comments regarding gait, braces or assisted ambulation devices. The NARSUM (as previously noted) provided a history of bilateral knee pain with separate ancillary descriptions and findings. The pain was rated “slight/constant;” and, listed limitations included “unable to stand longer than ten minutes and is restricted from any significant walking or running.” The physical exam noted a “mildly antalgic gait;” joint crepitus and patellar (knee cap) tenderness; “minimal effusion” (fluid in the joint); and, no instability to stress testing in all planes or signs of cartilage impingement. The ROM measurements were 135 degrees flexion (normal 140 degrees) bilaterally. An STR entry, 2 months after the NARSUM, documented “normal stance and gait.” There was no VA rating examination for the knee condition until nearly 3 years after separation (non-probative); but, an outpatient VA intake note 1-month after separation noted a normal gait, with some knee crepitus, but no tenderness or instability. The VARD at separation denied service-connection for both knees, citing an absence of evidence that the cause was linked to any period of duty. The VA did service-connect the left knee in 2007 and the right knee in 2011, each rated 10% retro-effective to separation.

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s 10% rating analogous to 5003 (degenerative arthritis) was supported by the USAPDA pain policy, but was compliant with VASRD §4.71a criteria for the finding and ROM in evidence. There is no evidence for compensable ROM impairment, ligamentous laxity, frequent effusions, or locking which would support a rating higher than 10% under any applicable code; or grounds for additional rating of instability. Thus 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 knee condition.

Contended PTSD Condition. There is an early STR entry that notes a history of depression dating to 1992 and some VA and STR evidence of depressive and anxiety symptoms in the period 1994-1995 following a Gulf War deployment. The CI was prescribed an antidepressant (Zoloft); but, there is no evidence of hospitalizations or significant acuity and no MH condition was ever profiled. There are two VARDs from 1996 noting denial for “dysthymia.” Following this period, there is no STR evidence of any clinical MH issues leading up to and during, the Kuwait/Iraq deployment (March 2003 – February 2004). There is, in isolation, a “report of mental status evaluation” from 24 October 2003 while still in theater. This documents a completely normal mental status exam (MSE), provides (without elaboration) an Axis I diagnosis of “occupational problem” and Axis II “rule-out paranoid personality disorder,” and states that the condition(s) met AR 40-501 retention standards. There is no post-deployment health assessment in evidence. There are no MH provider notes from the period following deployment, although it is possible that they are not included in the available file; but, members agreed that the missing evidence was not sufficiently probative (i.e., would not affect recommendation) to warrant the processing delay for attempts at retrieval. The outpatient primary care and orthopedic notes during the Med Hold period document that the CI was referred to Behavioral Health for “depression;” and, subsequent entries note that the symptoms had “resolved” and that he had been “cleared by Mental Health.” There are no psychoactive medications listed on the medication profile.

On the MEB DD Form 2807-1 report of medical history, the CI responded affirmatively to some of the MH questions and the examiner entered a diagnosis of “anxiety/depression” (without elaboration) on the DD Form 2808 report of medical examination. The NARSUM noted anxiety and insomnia “since he got off active duty following Desert Storm,” but did not elaborate any concurrent MH symptoms or diagnosis. There was no psychiatric addendum. The STR entry 2 months pre-separation which confirmed normal gait, as per the knee discussion, also documented a normal MSE and cognitive functioning. The profile was S1 throughout service. The commander’s performance statement specified that the CI was “physically incapable of performing the duties of [his MOS]” due to the knee condition and made no reference to MH issues or impairment.

There was not a formal psychiatric evaluation for PTSD by the VA until 2008, but the intake note a month following separation (referenced in the knee discussion) documented positive responses to all questions specific to PTSD and depression. A VA primary care outpatient note 4 months later listed a diagnosis of PTSD, noting depressed mood, but an otherwise normal MSE; and listed an anti-depressant under medications. Post-separation VA evidence documents that the CI remained employed and there was no record of psychiatric hospitalization or crisis. The VARD at separation noted that the CI had submitted the MSE in Iraq (referenced above) as evidence for renewing his claim for dysthymia and depression, but ruled that this was insufficiently substantiated as a basis for claim. Although the specific VARD is not in evidence, subsequent VARDs indicate that the CI was granted a 10% rating for PTSD sometime after the 2008 psychiatric evaluation.

The Board directs attention to its rating recommendation based on the above evidence; and, it’s first assessment with regard to the MH condition, under guidelines of the MH Review Project, is to judge (based on a preponderance of evidence) whether a diagnosis was changed to the disadvantage of the applicant or whether a diagnosis of PTSD was changed or unfairly eliminated. The evidence in this case demonstrates that various MH diagnoses were made and treated in service and such evidence was included in documents before the PEB; but, there is no evidence for a diagnosis of PTSD or related complaints during service. This case does not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

Although ideally the MH condition would have been addressed directly and forwarded by the MEB, there is no evidence that the acuity was such that it was not a reasonable judgment call on the part of the MEB physician to not do so; nor, is there any indication that the CI was desirous of such action. Although there was evidence of PTSD symptomatology arising soon after separation, all members agreed that there was scant evidence in support of a recommendation for adding PTSD as a diagnosis. It was likewise agreed that even if another diagnosis (anxiety or depression) was conceded for consideration; there would be insufficient evidence for recommending it as unfitting and eligible for rating; noting the S1 profile, the lack of indication by the commander that there were MH limitations on performance and the lack of any performance-based evidence in the record suggesting that such limitations existed. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend the addition of any MH diagnosis for disability rating.


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 the knee condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended MH condition, the Board unanimously agrees that it cannot recommend any psychiatric diagnosis for disability rating. 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.
The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130821, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX, AR20140014460 (PD201301160)


I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

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