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AF | PDBR | CY2014 | PD-2014-01677
Original file (PD-2014-01677.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2014-01677
BRANCH OF SERVICE: Army  BOARD DATE: 20141002
SEPARATION DATE: 20070215


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (13B/Cannon Crewmember) medically separated for a right ankle, left ankle and left thigh/knee pain conditions. 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 L3S3 profile and referred for a Medical Evaluation Board (MEB). The multiple conditions, characterized by the MEB as “left lower femur and left knee pain,” “left ankle pain” and “right ankle pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified “depressive disorder,” forwarding this condition to the PEB IAW AR 40-501. The MEB then found the following conditions as meeting retention standards and forwarded these to the PEB for further consideration: attention deficit, hyperactivity disorder; alcohol dependence, with physiological dependence (episodic) and personality disorder, not otherwise specified (NOS). The PEB adjudicated “left thigh and knee pain secondary to old distal femoral fracture requiring intramedullary rod,” “chronic right ankle pain” and “chronic left ankle pain” as unfitting, rated 10%, 0% and 0% respectively, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy for the left ankle condition and the Veterans Affairs Schedule for Rating Disabilities (VASRD) for the right ankle and left thigh/knee pain conditions. The remaining conditions were determined to be not unfitting and therefore not rated . The CI made no appeals and was medically separated.


CI CONTENTION: “Depression (10%) – The VA administered further testing and has determined that my chronic depression is affecting my civilian life to a greater extent than the Army initially determined and will require continued treatment for some time.”


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. Accordingly, the case file was reviewed regarding unfavorable diagnosis change, fitness determination, applicability of VASRD §4.129, and rating (via §4.129 or §4.130 as appropriate) of the MH condition adjudicated as not unfitting. The ratings for the unfitting left thigh and knee pain, right ankle pain and left ankle pain and the above considerations for the MH condition are addressed below. The contended substance abuse condition, found not unfitting by the PEB, will also be reviewed by the Board. The contended hearing loss and traumatic brain injury (TBI) conditions were not documented by the PEB and therefore not within the DoDI 6040.44 defined purview of the Board. 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 IPEB – Dated 20070205
 VA - Based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Left Thigh and Knee Pain 5099-5003 10% S/P Distal Fracture, Left Thigh and Knee 5299-5257 0% STR
Right Ankle Pain 5099-5003 0% Right Ankle, S/P Ruptured Deltoid Ligament 5271 0%* STR
Left Ankle Pain 5099-5003 0% Left Ankle 5271 0% STR
Depressive Disorder, NOS Not Unfitting NO VA ENTRY*
Alcohol Dependence Not Unfitting No VA ENTRY
Other x 3 (Not in Scope)
 Other x 0
Combined: 10%
 Combined: 0%
Derived from VA Rating Decision (VA RD ) dated 200 70816 ( most proximate to date of separation [ DOS ] ).
*VARD 20081015 increased the right ankle to 10% and added Depressive Disorder @10% effective 20080616


ANALYSIS SUMMARY:

Left Thigh and Knee Condition. The narrative summary (NARSUM) notes the CI’s left femur was injured in a motor vehicle accident in 2002, prior to enlistment in the Army. He fractured the middle of the left femur and underwent open reduction and internal fixation with a rod and screws. He was cleared for all activity without limitations by his civilian orthopedic surgeon prior to enlistment, but developed leg pain in basic training that persisted. While deployed in 2005 the CI felt immediate pain in his leg during strenuous activity and had significant pain in the leg that gradually improved, but again worsened after a march a few weeks later. Repeated imaging of the left hip and femur in August and September 2006 noted the femur fracture was well healed, with one screw broken and the other slightly raised relative to the bone. Left knee imaging on 15 September 2006 noted the surgical hardware findings and was otherwise normal. According to the NARSUM, orthopedic evaluation on 25 September 2006 noted the healed femur fracture, joint stiffness of the left hip, and joint pain of the left knee. The CI declined to have the surgical hardware removed, followed by a trial of duty.

At the MEB examination on 20 November 2006, approximately 3 months prior to separation, the CI reported significant left leg and knee pain increased with activity, including standing, walking, running, and lifting. He reported a left hip popping sensation that was not disabling. The MEB physical exam noted limited left hip range-of-motion (ROM) of 0 degrees internal rotation and flexion of 5 to 10 degrees existing prior to service (EPTS) factor and rated 10%, coded 5099-5003 (analogous to degenerative arthritis with loss of motion). The VA rated it 0%, coded 5299-5257 (analogous to knee impairment due to instability). The Board noted that the evidence in record supports that the CI had residual limited motion of both the left hip and knee at the MEB examination, with pain of the hip noted on PT ROM evaluation, but no pain of the knee noted by the MEB examiner or on PT ROM evaluation. The CI reported pain with use of the left leg thought by the CI and his treating physicians to be due to the retained surgical hardware. The Board opined that the CI’s disability associated with the left femur fracture was due to left leg pain, primarily felt in the lower thigh/knee region. The Board considered that the CI reported pain of degrees less than the right, with pain with all motion. Knee ROM was noted as extension of 15 degrees and flexion of 70 degrees, with the hip extended and 90 degrees, with the hip flexed. The knee was stable and there was no tenderness of the lower thigh or knee noted. The CI was noted to extend his left leg completely when walking. Physical therapy (PT) left hip ROM for the MEB on 21 December 2006 noted flexion of 100 degrees, 100 degrees, 100 degrees (normal 125 degrees), with pain and abduction of 20 degrees, 20 degrees, 20 degrees (normal 45 degrees) with pain and left knee ROM of extension-flexion 0-125 degrees, 0-125 degrees, 0-125 degrees (normal 0 degrees – 140 degrees), without pain. The initial VARD was based upon service medical records. There was no VA Compensation and Pension (C&P) examination within 12 months of military separation.

The Board directs attention to its rating recommendation based on the above evidence. The PEB adjudicated the left thigh and knee pain as service aggravated with both the left hip and knee but concluded that only one rating could be provided for the leg pain IAW §4.14 (Avoidance of pyramiding). The Board agreed that the painful leg condition met a 10% rating utilizing any of several codes, including the PEB’s coding choice of 5003; limited ROM codes 5252, 5253, or 5260 (limitation of hip motion, flexion or abduction or of knee motion, flexion) IAW §4.59 (Painful motion); or, 5255 (femur impairment) and reviewed to see if a higher evaluation than 10% was achieved with any applicable coding IAW §4.71a. The evidence did not support a 20% rating either under 5003 for X-ray evidence of degenerative joint disease of two joints with evidence of limited motion or any ROM code for hip or leg and there was no left knee instability documented. The Board next considered the rating criteria of 5255, which are subjective and described as 10% for femur impairment with slight knee or hip disability, 20% for moderate and 30% for marked. The Board agreed that the CI’s due to pain with weight bearing activities was best described as mild. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left thigh and knee pain condition, coded 5299-5255.

Right Ankle Condition. Notes in the STR indicate the CI injured his right ankle during basic training and tore ligaments. He had surgery on 23 February 2004 to place a screw to stabilize the fibula and tibia (syndesmotic screw). Following surgery and PT the CI was returned to basic training. He experienced a re-injury of the right ankle 2 months later with swelling noted and he was given a brace for repeat occasions of ankle instability. The NARSUM notes that following hardware removal the CI continued to have right ankle pain. Right ankle X-rays on 20 November 2006 noted post-traumatic changes. At the MEB exam, the CI reported right ankle pain worse during the day and with activity. The MEB physical exam noted right ankle full ROM with tenderness of the outside of the ankle joint (lateral malleolus). Gait was slow, but normal. PT ROM for the MEB noted right ankle dorsiflexion of 10 degrees, 10 degrees, 10 degrees (normal 20 degrees) and plantar flexion of 60 degrees, 60 degrees, 55 degrees (normal 45 degrees), without painful motion. The initial VARD was based upon service medical records. There was no VA C&P examination within 12 months of military separation.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the right ankle condition 0%, coded 5099-5003 and the VA rated it 0%, coded 5271 (limited ankle motion). The later VARD on 15 October 2008 increased the rating to 10% based on moderate loss of ROM. The CI had a right ankle injury that required surgery, with residual pain, instability and limited ROM of dorsiflexion (DF) of 10 degrees (with pain on use of the ankle). The Board agreed that this met the 10% rating, coded as 5271 for moderate, painful, ankle limited ROM but did not meet the higher 20% rating for marked limited ROM and did not meet a higher evaluation than 10% with any applicable §4.71a code. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right ankle condition.

Left Ankle Condition. The NARSUM notes that the CI reported left ankle pain which he related to the upper leg pain and previous fracture. He had no history of left ankle injury and X-rays on 22 August 2006 were normal. A note in the STR on 11 April 2006 noted pain in the back of the ankle near the Achilles tendon and the CI was given anti-inflammatory medication and put on a 3-day profile. At the MEB examination on 20 November 2006, the CI reported bearing most of his weight on the right due to pain he felt in his ankle. He reported left ankle pain with weight bearing, generally rated 1-3/10. The MEB physical exam noted tenderness of the medial malleolus of the left foot, with DF of 5 degrees to 10 degrees and normal plantar fasciitis (PF). Standing on his left toes caused left knee pain. PT ROM for the MEB noted left ankle DF of 5 degrees, 10 degrees, 5 degrees and PF of 55 degrees, 55 degrees, 55 degrees, without painful motion. The initial VARD was based upon service medical records. There was no VA C&P examination within 12 months of military separation.

The Board directs attention to its rating recommendation of the left ankle condition based on the above evidence. The PEB adjudicated the left ankle condition as unfitting, rated 0%, coded 5099-5003 and cited the USAPDA pain policy. The VA rated it 0%, coded 5271 (limited ankle motion), noting that it was associated with the left femur fracture. The CI had a left ankle limited ROM of DF of less than 10 degrees (with pain on use of the ankle). The Board agreed that this met the 10% rating, coded as 5271 for moderate, painful, ankle limited ROM but did not meet the higher 20% rating for marked limited ROM, and did not meet a higher evaluation than 10% with any applicable §4.71a code. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left ankle condition. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left ankle condition, coded 5271.

Contended MH Conditions. Under the Terms of Reference of the MH Review Project the Board considers the appropriateness of changes (if any) in MH diagnoses, and provides remedial recommendations if it is judged that there were any elimination or unfavorable change s in MH di agnosis by the Service. The Board will assess the fitness determination for MH conditions determined to be not unfitting; further consider whether the provisions of VASRD §4.129 were applicable to any unfitting MH condition (PEB adjudicate d or SRP recommended), and make rating recommendations in accordance with VASRD §4.13 0 (and §4.129 as appropriate).

According to the MEB psychiatric addendum on 20 December 2006, the CI began seeing a therapist after his return from deployment for anger issues involving his unit and at home. He presented to MH in October 2006 for “medication intervention and fitness for duty concerns.” The CI reported sleep problems and nightmares related to the civilian motor vehicle accident ( MVA ) noted above and to Iraq experiences. He reported anxiety and losing time while working or driving. The CI reported a history of a ttention d eficit h yperactivity d isorder ( ADHD ) with brief treatment with medication during childhood . The CI reported heavy alcohol use since high school and currently drinking alone every night, but declined a sub stance abuse referral because he wanted to stop drinking on his own . On mental status exam ( MSE ) the CI had a depressed mood and affect with an otherwise normal examination without suicidal ideation (SI). Neuropsychological (NP) testing was performed on 27 October 2006 due to a reported history of multiple head injuries throughout the CI’s life. At the NP examination the CI reported a history of attention problems and hyperactivity as a child and nine head injuries. Three of the head injuries resulted in loss of consciousness, with one reportedly occurring in Iraq, due to hitting his head on a vehicle , but the most significant one was due to the civilian MVA . The examiner noted that aft e r all the CI’s head injuries he w as able to return to school, work , or military duties and he denied any seizure disorder or cognitive deficits. D uring the interview the CI was noted to be hyperactive and anxious. Based upon the self-reported academic history an d standardized testing his cognitive function was judged to be unchanged. Short- term memory deficits were in evidence but the examiner indicated they may be related to his lack of attention and concentration. The CI was noted to be treated by a psychiatrist for symptoms of depression, anxiety, anger control, and sleep problems with nightmares. He reported being on sleep medication, but denied any previous MH treatment. The diagnoses were ADHD and medication was recommended; a possible learning disorder; and, further evaluati on was recommended for post-traumatic stress, anxiety, depression and alcohol dependence. The examiner noted that the CI’s cognitive defic its were developmental, chronic attention problems and did not appear to be related to multiple head injuries. Accordin g to the MEB p sych NARSUM the CI was not compliant with psychotropic medications. While in the MEB process the CI w a s noted to be working within his physical profile limitations. The Axis I dia gnoses were d epressive disorder NOS , medically unacceptable ; ADHD an d episodic a lcohol dependence, medically acceptable. The Axis II diagnosis was p ersonality d isorder (PD) NOS , EPTS , not service aggravated.

The CI indicated in three p ost-deployment health assessments (PDHA) between Janu ary 2005 and January 2006 that he had not seen anyone wounded, killed, or dead during deployment; had not engaged in direct combat and had never felt that he was in great dang e r of being killed . On PDHA in 24 August 2006 , the CI indicated that he was having relationship problems, sleep problems, depression symptoms, and was dr inking more than he wanted . The commander’s statement noted that the CI was a good soldier but was unable to perform the duties of his MOS due to physical limitations. The first permanent profile written following the MEB DD Form 2808 examination on 17 October 2006 noted an S1 profile, 4 months prior to separation. The psych NARSUM on 20 December 2006 noted the CI was working within the limits of his physical profile. Following the psych NARSUM, the psychiatric profile was changed to S3, a month before separation.

 The origi nal VARD was based on service medical records. The first VA treatment note after separation in the records dated 5 June 2008, 14 months after separation, indicated that the CI presented to primary care for an initial evaluation and reported heavy alcohol use and depression , both of which he reported had increased since his separation from the military. He reported suicidal ideation without a plan. He reported that because his drinkin g he was un able to hold down a job. He had recently lost a job due to the drinking and it was causing relationship problems with his girlfriend. The assessment was severe depression, alcohol abuse, and possible TBI. At the MH evaluation he reported depression, anxiety, being easy to anger with some episodes of physical violence, nightmares a few times per week, with vivid memories of deployment experiences. He reported having frequent bl ac ko uts. The impression was m ajor d ep ressive d isorder; rule out (r/o) posttraumatic stress disorder (PTSD) , r/o i ntermittent e xplosive d isorder . T he applicant was aga in referred for substance a buse treatment, but declined it beca use he was starting a new job . At the VA C&P m ental d isorders examination on 15 August 2008, 16 months after separation, the CI noted that his depression st arted in basic training wh e n he had to repeat it due to an ankle injury, but he talked to the chaplain and then “ got on wi th his life . ” He reported he was not able to keep a job because he would become bored, “There was no adrenaline rush,” but that his agitation and concentration were much improved with medication s for ADHD (Ritalin), nightmares and insomnia , (Prazosin) and an antidepressant (Effexor) . On MSE he was noted to be in constant motion during the interview, but toward the end began to “nod off” if he was not talking. The CI also r eported short and long term mem ory problems since the MVA at age 17. The Axis I diagnoses we r e d epressive disorder NOS, alcohol abuse and a ttention d eficit d isorder. The original VARD on 16   August 2007 denied service - connection for a claimed diagnosis of PTSD. The VARD on 15   October 2008 rated d epressive disorder 10%, coded 9434, approximately 20 months after separation.

The Board reviewed the records for evidence of inappropriate changes or elimination of diagnosis of the MH condition during processing through the Disability Evaluation System. The DD Form 2808 did not indicate a MH diagnosis, but noted symptoms of “sleep disorder, short term memory loss, anger issues, anxiety” and noted the CI was currently seeing MH. The psych NARSUM Axis I diagnoses were d epressive disorder NOS, medically unacceptable and ADHD and episodic a lcohol depend ence, both medically acceptable and an Axis II diagnosis of PD NOS. The MEB forwarded the same four Axis I and Axis II diagnoses to the PEB a nd the PEB adjudicated all four MH conditions as not unfitting. This case did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.
The depressive disorder, ADHD, PD, and episodic alcohol dependence were determined to be not unfitting by the PEB. The Board’s charge with respect MH conditions referred for review that were determined to be not unfitting by the PEB is an assessment of the appropriateness of the PEB’s fitness adjudication. The Board’s threshold for countering PEB not-unfit determinations requires a preponderance of evidence. The Board notes that even if the ADHD, PD, or alcohol dependence conditions were unfitting for continued military service, IAW DoDI 1332.38, enclosure 5, they are conditions not constituting a physical disability and would not be eligible for disability ratings. The Board considered that the MEB psychiatrist noted the CI was working within the limits of his physical profile; the commander’s statement noted that the CI was a good soldier and did not implicate any MH condition as impairing duty performance and, the psychiatric profile was S1 until a month prior to separation. There was no indication from the record that any MH 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 MH conditions and, therefore, no disability ratings can be 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 the left ankle condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the left thigh and knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5255 IAW VASRD §4.71a. In the matters of the right and left ankle conditions, the Board unanimously recommends a disability rating of 10% each, coded 5271 IAW VASRD §4.71a. In the matters of the contended MH 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
Left Thigh and Knee Pain 5299-5255 10%
Chronic Right Ankle Pain 5271 10%
Chronic Left Ankle Pain 5271 10%
COMBINED (w/ BLF)
 30%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140408, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                 
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX , AR20150006592 (PD201401677)


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 30% 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 30% 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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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