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AF | PDBR | CY2014 | PD-2014-02006
Original file (PD-2014-02006.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2014-02006
BRANCH OF SERVICE: Army  BOARD DATE: 20150312
SEPARATION DATE: 20060719


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (M1 Armor Crewman) medically separated for left knee pain and posttraumatic stress disorder (PTSD). These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB). The left knee pain and PTSD were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other medically acceptable condition (bilateral tinnitus with unknown cause) for PEB adjudication. The Informal PEB adjudicated “left knee pain, without neurologic abnormality” and “posttraumatic stress disorder” as unfitting, rated 10% and 10%, c iting application of the US Army Physical Disability Agency (USAPDA) pain policy for the left knee. The remaining condition was determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “Please consider all conditions”


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

IPEB – Dated 20060620
 VA* - (~2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Left Knee Pain, without Neurologic Abnormality 5099-5003 10% Left Knee Sprain 5257 10% 20060927
Scar, Left Knee 7805 0% 20060927
Posttraumatic Stress Disorder Requiring Psychotropic Medication and Outpatient Treatment 9411 10% Post Traumatic Stress Disorder 9411 30% 20060922
Bilateral Tinnitus Not Unfitting Tinnitus 6260 10% 20061002
Other x 0
Other x 4
Combined Rating: 20%
 Combined Rating: 50%
* Derived from VA Rating Decision (VA RD ) dated 200 70215 (most proximate to date of separation [ DOS ] ) .


ANALYSIS SUMMARY:

Left Knee. The MEB examiner recorded the CI’s history of chronic left knee pain associated with an injury sustained in January 2004 while on active duty. The narrative summary (NARSUM) dated 4 January 2006 documented that the CI injured his left knee after jumping off of a tank with full battle gear. However, treatment records documented the complaint of left knee pain since March 2002 that resulted from twisting of the knee. The CI was treated conservatively with physical therapy (PT), non-steroidal anti-inflammatory medication with little benefit, and later treated with narcotic agents with some noted benefit. In addition to pain, the CI reported episodes of knee instability, catching and swelling, and was recommended for surgery. On 26 August 2005, he underwent left knee arthroscopy with synovectomy (removal of inflamed joint tissue lining the joint to reduce symptoms). The record documented surgery also included repair of a partial tear of the ACL. The examiner, who was also the treating physician, documented, that following surgery, the CI participated in PT and demonstrated some progress. However, 4 months later in December 2005, he sustained a fall which caused weakness in the left knee but did not cause instability. He was examined and was noted to have good range-of-motion (ROM) with no ligamentous laxity. He was able to do straight leg raises and his patella and quadriceps tendon were intact to palpation. The CI continued therapy; however, despite efforts of rehabilitation it was decided that he had reached maximum benefit. He continued to have pain and episodes of giving way that led to more falls. The examiner documented that the CI’s ROM had “always showed left 0-150 (140, NL) degrees” with negative tests of knee instability, and no evidence of ligament injury. The physician noted the presence of quadriceps atrophy, and that the CI was not a good candidate for repeated arthroscopy since maximum improvement had been achieved.

The VA Compensation and Pension (C&P) evaluation dated 27 September 2006 2 months after separation, documented left knee flexion of 104 degrees and 0 degrees of extension. There was no limitation with repetitive motion but pain was present after the seventh repetition of flexion. The examination identified free movement of the patella without effusion, and a positive drawer test.

The Board directed attention to its rating recommendation based on the above evidence. The PEB coded the condition of left knee pain under the analogous coding of 5099-5003 and assigned a 10% rating for pain that was moderate and frequent (Pain policy). The VA coded the condition diagnosed as left knee sprain under the 5257 (knee, other impairment [recurrent subluxation, or lateral instability, slight]) code and assigned a 10% rating. A higher rating of 20% under the 5257 code requires evidence of moderate degree of impairment documented as evidence of knee instability, which was not supported by the evidence. The Board noted the absence of compensable ROM loss, and therefore, ROM codes were not applicable. The Board considered the 5258 code; however, there was no objective evidence of frequent episodes of locking and effusions to support the use of this code. There is no VASRD sanctioned pathway to a rating higher than the minimal compensable rating. As noted below, the Board placed the CI on a constructive TDRL period of 6 months for his PTSD; therefore, the TDRL period applies to the left knee condition. The Board noted that during the constructive TDRL period the CI’s condition remained unchanged. 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 determination for the chronic left knee pain condition at TDRL entry and at permanent separation.

PTSD. The psychiatric NARSUM documented that the CI was deployed to Iraq in March 2004, and subsequently developed symptoms consistent with PTSD. Mental health (MH) treatment records were not available for review. The psychiatric NARSUM dated 17 May 2006, 3 months prior to separation, recorded the CI’s report of combat related symptoms consisting of nightmares, flashbacks, anger, emotional numbness, anxiety, poor sleep and avoidance behavior. The CI reported he had witnessed fellow Soldiers being “blown to pieces” and he had to sort through remains to find ID tags. The CI reported he had participated in over 300 combat missions and had earned the Combat Action Badge. In regards to his social history, the CI was married and was helping to raise four children. At the time of the NARSUM, he and wife had separated; she reportedly had issues of addiction and had stolen his narcotic medications. Mental status examination (MSE) documented mildly depressed and anxious mood and affect, and no other abnormalities. The CI indicated that the medication prescribed for anxiety had improved his nightmares; they were less intense and less frequent. However, his sleep remained poor and he had constant daytime anxiety. His anger had caused interpersonal problems both at home and at work. The examiner noted that his condition was stable but symptomatic, and will require “indefinite medication management and counseling.” The diagnosis of PTSD was assessed, and Global Assessment of Functioning (GAF) was not recorded.

At the VA C&P PTSD evaluation dated 22 September 2006, 2 months after separation, the CI indicated he was living with his wife and four children and had driven himself to the interview. He had continued his treatment at the VA, and had no history of psychiatric hospitalization. The CI reported he had continued to have nightmares, anxiety, and angry outbursts. He reported a few depressive symptoms of wanting to self-isolate, weight loss and depressed mood. However, he noted that his relationships within his family were good, and he had just started to work and indicated he did not anticipate problems with co-workers. He had a few friends that he enjoyed “hanging out” with, and he played games with his children and went to the movie theaters. An MSE documented dysphoric mood with affect recorded as “dysthymic with mild anxiety, blunted, flattened and constricted throughout.” There was no evidence of psychosis, or impairment in judgment or cognition. The examiner diagnosed PTSD and assigned a GAF of 60 (borderline moderate-mild).

The Board directed attention to its rating recommendation based on the above evidence. The both the PEB and VA rated the condition of PTSD under the code of 9411; however, the PEB assigned a 10% disability rating and the VA assigned a rating of 30%. Additionally, the PEB noted that 10A/C was awarded and commented that the PTSD was related to armed conflict in Iraq. The Board also acknowledged the absence of §4.129 application. The Board in compliance with the provisions of VASRD §4.129 (mental disorders due to traumatic stress) noted the provision was applicable in this case and therefore, must assign a disability rating of not less than 50% for an initial period of 6 months following separation, with subsequent fitness and ratings based on the applicable evidence. The Board considered if there was evidence for a §4.130 rating higher than 50% at the time of TDRL entry. The higher 70% rating criteria requires evidence of “Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.” The Board noted the absence of psychiatric hospitalizations, no recorded visit to the emergency room for MH issues, and no evidence of impairment in judgment or thinking. His MSE at the NARSUM and VA were essentially normal and presented no evidence of impairment in thinking or judgment. The Board considered the record in evidence did not support a higher than 50% rating for TDRL entry. The Board concluded there was insufficient reasonable doubt (IAW VASRD §4.3) for recommending a 70% TDRL entry rating. The Board next determined the most appropriate fit with VASRD §4.130 criteria at the end of TDRL for its permanent rating recommendation. The Board deliberated the evidence for the 30% versus 10% disability rating. The 30% disability rating requires evidence of “Occupational and social impairment with occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks.” The Board considered the VA MH examination; 2 months after separation and December 2006 clinic notes (5 months after separation). The C&P examination recorded the CI was working, had good family relationships and engaged socially with friends. He had symptoms; however, his symptoms had not impaired his ability to seek employment or be hired. The examiner noted the absence of suicidal thoughts, hospitalizations, and although he reported significant anxiety, panic attacks were absent. The treatment records dated approximately 5 months after separation, noted he had issues of domestic violence, his wife had assaulted him and he had taken out a restraining order. There were two additional entries; both discussed his physical pain, neither documented PTSD symptoms. Board members agreed there was insufficient evidence to support the 30% rating criteria. The 10% disability rating for “Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication,” was supported, and therefore, all Board members agreed that the preponderance of evidence best reflected the 10% level of disability. After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 10% permanent disability rating for the condition of PTSD.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral tinnitus condition was not unfitting. The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The bilateral tinnitus was not profiled or implicated in the commander’s statement and was not judged to fail retention standards. The condition was reviewed and considered by the Board. There was no performance based evidence from the record that the 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 bilateral tinnitus condition and so no additional disability ratings are 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 knee pain was operant in this case and the condition was adjudicated independently of that policy by this Board. In the matter of the PTSD condition, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DoD directed; and a 10% permanent rating IAW VASRD §4.130. In the matter of the left knee condition, the Board unanimously recommends an initial TDRL rating of 10% and a 10% permanent rating IAW VASRD §4.71a. In the matter of the contended bilateral tinnitus condition, 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 to reflect that the applicant was placed on the TDRL at 60% for a period of 6 months IAW §4.129 (50% for PTSD and 10% left knee pain), and then permanently separated with severance pay by reason of physical disability with a final 20% rating as indicated below:

UNFITTING CONDITION
 VASRD CODE TDRL RATING PERMANENT
RATING
Chronic Left Knee Pain
 5099-5003 10% 10%
Posttraumatic Stress Disorder
 9411 50% 10%
COMBINED 60% 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140502, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record





XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review


SAMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB / Mr. Brower), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXX , AR20150013694 (PD201402006)
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 no recharacterization of the individual’s separation or modification of the permanent disability rating of 20%.

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 as follows:

         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 separated with a permanent combined rating of 20% effective the day following the six month TDRL period with no recharacterization of the individual’s separation.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will provide 60% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service.



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                                                  XXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

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