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AF | PDBR | CY2013 | PD2013 02018
Original file (PD2013 02018.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX        CASE: PD1302018
BRANCH OF SERVICE: ARmy         BOARD DATE: 20140411
SEPARATION DATE: 20090627


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (15P/Aviation Operations Specialist) medically separated for bilateral knee arthritis. The CI injured his right knee playing football with his unit in 2000; no traumatic event was identified for his left knee problem. The knee condition 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/S1 profile and referred for a Medical Evaluation Board (MEB). An initial MEB in January 2009 forwarded left and right knee arthritis along with left and right plantar fasciitis and chronic low back pain (LBP) due to degenerative disc disease (DDD) at L5/S1 to the Physical Evaluation Board (PEB) IAW AR 40-501. A second MEB on 9 February 2009 added adjustment disorder with depressed mood as meeting retention standards. The CI was evaluated as part of the Integrated Disability Evaluation System (IDES) process. The PEB adjudicated the CI fit for duty. The CI did not concur and requested reconsideration. The Reconsideration PEB adjudicated bilateral knee arthritis as unfitting, without a rating percentage (--%) and adjudicated the bilateral plantar fasciitis and chronic LBP as not unfitting and the adjustment disorder with depressed mood as a condition not constituting a physical disability IAW DoDI 1332.38, Encl. 5. The CI requested his proposed VA rating prior to making his decision concerning the findings of the Reconsideration PEB. The VA proposed 10% for each knee. The CI concurred. The second Reconsideration PEB adjudicated the left and right knee arthritis as separately unfitting, rated 10% each, IAW the VA Schedule for Rating Disabilities (VASRD), and upheld the not unfitting adjudication of the plantar fasciitis, chronic LBP and adjustment disorder. The CI made no further appeals and was medically separated.


CI CONTENTION: The CI wrote: “Due to advanced symptoms and episodes of PTSD and persistent pain and problems with walking, standing and other activities resulting from plantars fasciitis.”


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 Army that his case may be eligible for review of the military disability evaluation of any mental health (MH) condition in accordance with 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 changed or eliminated during that process. Since the CI responded to this mailing, it is presumed that he has elected review by the PDBR for the MH condition contended posttraumatic stress disorder (PTSD) as he identifies PTSD on his DD Form 294. In accordance with Secretary of Defense directive for a comprehensive review of MH diagnoses that were changed during the DES process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of unfitting MH diagnoses in accordance with VASRD §4.129 and §4.130. The rating for the unfitting left and right knee arthritis condition along with the contended plantar fasciitis is 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 Military Records.


 RATING COMPARISON :

Service 2nd ReconPEB – Dated 20090401
 VA - (7 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Arthritis, Left Knee 5260 10% Degenerative Arthritis, L Knee 5260 10% 20081212
Arthritis, Right Knee 5260 10% Degenerative Arthritis, R Knee 5260 10% 20081212
Bilateral Plantar Fasciitis Not Unfitting Plantar Fasciitis (bilateral) 5299-5276 10% 20081212
Chronic Low Back Pain Not Unfitting Lumbar Strain 5237 10% 20081212
Adjustment Disorder w/Depressed Mood Not a Physical Disability Depression w/Insomnia* 9434 30% 20081216
No Additional MEB/PEB Entries
 Other x 6 20081212
Combined: 20%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 90708 ( most proximate to date of separation [ DOS ] ). * VARD of 20120719 changed the diagnosis to PTSD w/Depressive Disorder, same rating, backdated to the day after separation.


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that 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. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws. The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Arthritis, Left and Right Knee. The CI was first seen on 10 August 2000 in family practice (FP) for an injured right knee while playing football. He was treated conservatively without resolution. The 23 February 2001 FP note documented bilateral knee pain diagnosed as retropatellar pain syndrome; no additional trauma was recorded. At a 16 March 2001 physical therapy visit, he reported left > right knee pain since an injury to the left knee the previous August; left > right crepitus (audible popping sound) was present. He continued to be treated for bilateral knee pain over the next few years. On 6 June 2004, a magnetic resonance imaging showed bilateral chondromalacia patella (a degenerative change of the cartilage of the kneecap), a bilateral joint effusion (fluid in the joint space) and probable degenerative changes of the lateral (outside) femoral (the femur is the thigh bone) portion of the knee. On 9 August 2004, he had arthroscopic treatment of the left knee. Subsequently, he also had arthroscopy of the right knee on 7 August 2006. Despite surgical and conservative management, he was not able to return to full activities. He was initially issued a L3 profile which was changed to a L2 to allow him to deploy. He was seen in orthopedics on 20 October 2008 and noted to have stable knees without effusion. No range-of-motion (ROM) was documented. X-rays showed bilateral degenerative joint disease of both knees. He was reissued a L3 profile and entered into the MEB process. At the MEB examination on 24 October 2008, the CI reported ongoing knee pain. The MEB physical examiner noted stable knees with tenderness about the patella and along the joint line on the left.

At the VA Compensation and Pension (C&P) exam performed on 12 December 2008, 7 months prior to separation, the CI reported weakness, swelling, stiffness and giving way. He denied locking or dislocation. His gait was normal. On examination, patellar compression was tender and crepitus was present bilaterally. There was no effusion, sign of instability or sign of meniscal irritation. The ROM was reduced to 115 degrees of flexion (110 degrees after repetition) on the left and 110 degrees (100 degrees after repetition) on the right. Normal flexion is 140 degrees. Extension was normal at 0 degrees. DeLuca was positive for pain.

The narrative summary was dated 3 February 2009. The examiner noted that the CI was able to deploy despite the profile (it was changed to allow deployment) and meet the requirements of his MOS, although with pain. The VA examination of the knees was cited.

The Board directs attention to its rating recommendation based on the above evidence. The VA proposed a 10% rating for each knee coded 5260 (limitation in flexion). The PEB accepted and utilized the same coding and rating for each knee. The Board noted that there was neither instability nor signs of meniscal irritation. It considered the other coding options available for the knees. None provided a better clinical description of the knee condition or a route to a higher 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 bilateral knee condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the contended not unfitting plantar fasciitis condition and the MH condition 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 plantar fasciitis condition was issued an L2 profile in 2002 to allow alternate physical fitness testing. The CI was also treated with orthotics. That year, the CI requested a permanent profile be issued to allow him to re-enlist. This was done and he was seen two more times in early 2003 for his bilateral foot condition. The record then falls silent until entry into the DES process. The commander’s statement noted limitations in basic soldiering tasks, but did not attribute these to any specific orthopedic impairment. The MEB did judge that the bilateral plantar fasciitis failed retention standards. This was reviewed by the action officer and considered by the Board. It noted that the CI carried a permanent profile for the bilateral plantar fasciitis condition and had been found to fail retention standards. However, the last entry in the record for plantar fasciitis until entry into the DES process was on the 7 June 2004 evaluation in orthopedics for knee surgery which noted only a history of plantar fasciitis. There was no performance based evidence from the record that the bilateral plantar fasciitis condition precluded satisfactory duty performance after initial treatment and issuance of orthotics. 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 plantar fasciitis condition and so no additional disability rating is recommended.

The Board then considered the contended MH condition. The CI actually contended for PTSD. The Board noted that the VA initially rated the CI for depression with insomnia and did not change the diagnosis until over 3 years after separation, based on the 10 July 2012 C&P evaluation. Review of the record reveals that the CI was first seen for MH complaints on 9 February 2008 for marital stress. He was diagnosed with an adjustment disorder with anxiety and started on medications and counseling. He carried this diagnosis for the remainder of his visits with some variation (marital problems, adjustment disorder with depressed mood, etc.) The commander stated that he was a “great soldier” on the 3 December 2008 statement. At a MH evaluation for the MEB on 9 December 2008, it was noted that he had MH issues prior to enlistment including a hospitalization for suicidal ideation. However, his current symptoms were related to marital problems. He denied any duty impairment from MH issues. The examining psychiatrist concurred and determined that he met retention standards and was continued on an S1 profile which he had maintained since accession. The CI was seen a week later for a VA MH C&P examination and reported depressed mood, insomnia, anger and disturbing dreams. He stated that it slowed him down at work and in daily functioning. He reported a good relationship with his supervisor and coworkers and denied lost duty time. He was noted to have a flattened affect and diagnosed with depression with insomnia and assigned a Global Assessment of Function of 55 indicative of moderate symptoms or impairment. A subsequent letter from the commander to the PEB on 10 February 2009 noted that the CI was “an outstanding Flight Operations Soldier” and only noted the physical limitations as duty impairing. The MEB determined that the MH condition met retention standards. The MH condition was reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that a MH condition, regardless of diagnosis, 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 the addition of an unfitting MH condition at separation and so no additional disability rating is recommended.

The Board noted that adjustment disorder with depressed mood was forwarded to the MEB and then to the PEB. However, the VA examiner made the diagnosis of depression with insomnia during the DES process as part of the pilot project. Depression is a more significant diagnosis than adjustment disorder. Therefore, the Board determined that the MH diagnosis was changed to the applicant's possible disadvantage in the disability evaluation process. This applicant accordingly did meet the inclusion criteria in the Terms of Reference of the MH Review Project. The Board also considered the diagnosis. It noted that while the VA examiner made the diagnosis of depression, the CI was consistently diagnosed with an adjustment disorder. The evidence does not support a change in the diagnosis of the MH condition.


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 bilateral knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended bilateral plantar fasciitis condition, the Board unanimously recommends no change from the PEB determination as not unfitting. In the matter of the contended MH condition, the Board unanimously agrees that it cannot recommend it for additional 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 re-characterization of the CI’s disability and separation determination.
The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131014, 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, AR20140014464 (PD201302018)


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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