RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01101
BRANCH OF SERVICE:  Army	BOARD DATE:  20150629
SEPARATION DATE:  20081219

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Information Systems Analyst and Operator) medically separated for right hip pain and anxiety condition.  These 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 U3/L3/S3 profile and referred for a Medical Evaluation Board (MEB).  Right hip pain, right shoulder pain, right elbow bursitis pain, and anxiety disorder were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded right ear hearing loss, occasional dizziness unknown etiology, dental issues seven root canals needing seven crowns, Raynaud’s Syndrome ANA’s unremarkable only effect during cold weather, pleurisy from right chest spontaneous pneumothorax, cervicalgia with spasm, low back pain with spasm, and plantar fasciitis bilateral for PEB adjudication.  The Informal PEB adjudicated right hip pain and anxiety disorder as unfitting, rated 10% and 10%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy for the right hip pain.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  He was given a higher rating for his conditions by the VA.  His complete submission is at Exhibit A.

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 condition 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 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 20081209	VA* - (<1 Mo. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Hip Pain	5099-5003	10%	Synovitis, Right Hip	5252-5020	10%	20081204	
Anxiety Disorder	9413	10%	Generalized Anxiety Disorder	9400	70%	20081203	
Right Shoulder Pain	Not Unfitting	R. Shoulder, Bicipital Rotator…	5201-5024	10%	20081204	
Right Elbow Bursitic Pain	Not Unfitting	R. Elbow, Olecranon Bursitis	5206-5019	10%	20081204	
Right Ear Hearing Loss	Not Unfitting	R. Ear Hearing Loss	6100	0%	20081204	
Pleurisy from Right Chest…	Not Unfitting	R. Lung Collapsed	6843	0%	20081204	
Low Back Pain	Not Unfitting	Chronic Thoracolumbar Spine	5237	10%	20081204	
Other MEB/PEB Conditions x 5 (Not In Scope)	Other x 2	
RATING:  20%	RATING:  90%	
*Derived from VA Rating Decision (VARD) dated 20090522(most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Anxiety Disorder.  The CI was deployed to in support of Operation Iraqi Freedom from 2007 to 2008.  The CI reported he did not have significant combat exposure other than stress of the environment.  He did have significant anxiety about an exercise (simulated drill) that he did not realize was a drill.  He genuinely thought they were under attack and “freaked out,” thinking he was going to die.  He first saw MH a week after returning from theater after he almost hit his wife.  He was referred for psychological testing that showed markedly-high scores for anxiety, phobias, and obsessive-compulsive like behaviors.  In May 2008 he began individual and couple’s counseling.  He first saw a psychiatrist in June 2008 and was started on medicine for depression/anxiety and sleep impairment.  A second psychological assessment in June 2008 was determined to be of “marginal validity” since he presented himself in an overly positive light.  He did not receive any other psychotherapy services other than couple’s therapy until September 2008.  He continued with medication management from June 2008 and experienced a reduction in anxiety, hyper arousal and improved sleep.  He had significant interpersonal dysfunction with his spouse but functioned quite well otherwise.

During the MEB Psychiatry Addendum, 2 months prior to separation, the CI reported increased mood irritability and consistent fear of assault or attack since his return from Iraq.  His MH condition was worse at night requiring him to sleep with the light on.  He had low frustration tolerance and outbursts of verbal and sometimes physical behavior but no violence.  His anxiety became so overwhelming he had incapacitating panic attacks.  He worked performing limited duties.  The mental status exam (MSE) was essentially normal except for his presentation in a somewhat regressed manner.  A diagnosis of anxiety disorder was rendered with a Global Assessment of Functioning (GAF) score of 75 (transient symptoms, slight impairment).  The examiner opined he was adapting to the anxiety and had made significant therapeutic strides and was largely capable to work full-time.  Impairment for social and industrial adaptability was mild.  The CI received a S3 profile for anxiety disorder.  The commander’s statement noted the CI was able to perform alternate duties well, work an 8-hour duty day and was able to communicate effectively with others. 

At the VA Compensation and Pension (C&P) exam, performed 2 weeks prior to separation, the CI reported his anxiety was like “being worried all the time, on guard, unable to relax, and always expects the worst.”  He said he was depressed because he hurt his hip and had limited activities.  He had to investigate any unfamiliar noise, slept with a large knife by the bed and put Christmas bells on the front door.  When irritated he would throw things across the room but does not hurt anyone or break anything.  He said he had road rage.  He had mild to moderate anxiety daily, and sleep problems, depression, and irritability were intermittent.  He had not worked since he returned from Iraq but he took classes.  His medications helped but he did not feel further psychotherapy would help.  He had not missed classes due to anxiety or depression.  His marriage was good and he was looking forward to being a father.  The MSE noted he occasionally saw things out of the corner of his eye, sometimes thinking he saw people, and heard doors closing 3-4 times per week.  When these things occurred, he thought someone was going to hurt him.  He had some compulsive type behaviors but denied panic attacks.  He was excessively worried on a daily basis and had distressing dreams 2-3 times each month.  He reportedly sees someone once a month for therapy and medication.  The medicine helped him to argue less with his wife and to sleep better.  His wife confirmed he was less irritable.  He became bored with visiting friends.  A diagnosis of generalized anxiety disorder (GAD) was rendered with a GAF of 68 (mild impairment, symptoms).  The examiner opined the CI had mild to moderate anxiety but appeared to be generally functioning pretty well and had some meaningful relationships.  The examiner also opined he had an occasional decrease in work efficiency or productivity.

The Board directed its attention to its rating recommendation based on the above evidence.  Disability associated with any psychiatric condition, regardless of the diagnosis(s), is subsumed under a single rating using the same criteria IAW VASRD §4.130 General Rating Formula for MH Conditions.  The PEB rated the condition at 10% under the code 9413 (anxiety disorder) and the VA rated the condition at 70% under the code 9400 (GAD).  Anxiety disorder and GAD can be equal in severity and impact so neither diagnosis is predominate.

The Board considered whether the provisions of VASRD §4.129 (mental disorder due to a highly stressful event) were applicable for the unfitting MH condition.  Regardless of final PEB MH diagnosis, §4.129 does not require a PTSD diagnosis, but is utilized to determine if a mental disorder is due to a highly stressful event that is severe enough to bring about the veteran’s release from active military service.  The Board determined the CI’s unfit MH condition had a highly stressful onset while he was in a combat zone, and therefore §4.129 is applicable.  Accordingly, the CI must then be place into constructional Temporary Disability Retired List (TDRL) with a minimum 50% rating followed by a TDRL removal MH rating 6 months later IAW the VASRD, DoDI 6040.44 and DoD guidance.  All members agreed that the VASRD §4.130 (MH rating) for the CI’s TDRL placement was not assessed higher than a 50% rating.  After due deliberation and consideration of all of the evidence, and mindful of the VASRD §4.3 (Reasonable doubt), the Board unanimously recommends a rating of 50% for the anxiety condition at TDRL placement.

The Board then determined the §4.130 MH rating at TDRL removal (end of the constructional TDRL) for the permanent rating recommendation.  The Board determined the most proximate source of comprehensive evidence to TDLR removal was the VA (C&P) MH examination performed 2 weeks prior to separation.  There were no subsequent MH examinations for Board consideration.  A 10% rating specifies “occupational and social impairment due to mild or transient symptoms which decrease work efficiency…only during periods of significant stress, or; symptoms controlled by continuous medication.”  The next higher 30% rating specifies “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.”  The Board noted the C&P MH MSE documented the CI saw something out of the corner of his eye which startled him.  He sometimes thought he saw people but blinked and they were gone.  He reported he heard doors close 3-4 times a week.  When he had these symptoms, he believed someone was going to hurt them [his family].  Sometimes he heard a siren when he drove.  He had several chronic 30% threshold symptoms (anxiety, sleep, and depression) reported prior to the MEB and during the VA C&P exam.  The VA examiner opined the CI appeared to be functioning pretty well, had some meaningful relationships and was taking medication with good response.  However, the CI was diagnosed with Axis I GAD and a GAF of 68 (mild symptoms) and determined to have mild to moderate anxiety.  The Board therefore concluded that the 30% rating most accurately depicted the condition at the time of removal from TDRL.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a TDRL placement rating of 50% and permanent disability rating after removal from TDRL of 30% for the anxiety disorder.

Right Hip Pain.  Service treatment records noted the CI had fractured his right proximal femur in 1995 at age 14.  He began having right hip problems after service entry.  While the CI was deployed various activities including squats, climbing ladders, weight bearing and sitting for extended periods irritated his hip.  He was diagnosed with right hip synovitis.  In April 2008, a magnetic resonance imaging showed a superior labral tear (torn cartilage) with extension into the posterior labra.  The examiner determined the injury occurred during the CI’s deployment.  He was treated with physical therapy and anti-inflammatory medication without improvement.  An orthopedic surgeon repaired the tear but the CI reported the pain was about the same.  Examination of the hip showed “normal strength” in all directions of motion.  Functionally, the commander’s statement noted the soldier was not able to perform his duties without a reasonable number and duration of rest periods.

The MEB narrative summary (NARSUM), performed 2 months prior to separation, noted the CI walked with a cane.  He reported his average daily level of pain was 5-6 and worst was 6-7 of 10.  The pain intensity progressed from morning to night.  If he engaged in activities like going to a movie, he had to increase his narcotic pain medication.  Exam of the right hip showed a normal range-of-motion of the hip, pain on palpation of the greater trochanter, and pain with abduction, especially against resistance.  He had always been active but was no longer able to sit for over 30 minutes without changing position or stand for 30 minutes without motion.

At the VA Compensation and Pension (C&P) exam performed 2 weeks prior to separation, the CI reported constant daily pain in the anterior and lateral hip that usually ranged from 4-8 out of 10.  The hip felt weak, unstable, and gave way at times.  He used a cane for long distance weight bearing activities and to prevent falls.  He denied stiffness, swelling, redness, and locking.  He had flare-ups weekly with pain 8/10 that lasted 24-36 hours.  Treatment with pain medication, sitting, and heat provided some relief.  Physical exam showed a normal posture but he walked with a mild limp, gait antalgic, and used a cane.  His leg lengths were equal.  Exam of the right hip showed a normal appearance with no atrophy.  He had pain at rest that increased on motion and with repeated use.  There was no evidence of swelling, effusion, instability, weakness, heat, and ankylosis.  Strength of internal and external rotation of the right hip was mildly less than the left.  There was no right lower extremity weakness observed.

The Board directed its attention to its rating recommendation based on the above evidence.  Based on the anxiety disorder and §4.129 constructional TDRL requirements outlined above, the Board must determine a rating recommendation for the right hip condition at TDRL placement and removal.  The PEB utilized code 5003 (degenerative arthritis) at 10% IAW VASRD §4.59 (Painful motion), §4.40 (Functional loss), and §4.10 (The joints).  The VA used codes 5252 (Thigh, limitation of flexion) and 5020 (Synovitis [joint lining inflammation]) rated 10% IAW §4.59 (Painful motion).  Neither code is predominate and all exams were rated at 10%.  The PEB was unable to determine if the condition existed prior to service.  There was no ankylosis (code 5250) or flail joint (code 5254) present nullifying the use of these.  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 right hip pain condition at TDRL placement.

The Board then determined the rating recommendation for the right hip condition at TDRL removal assigned at the 6 months TDRL interval.  The Board determined the most probative evidence to evaluate the CI at TDRL removal was the VA (C&P) General examination performed 2 weeks prior to separation.  There were no subsequent examinations for Board consideration.  During the VA examination the CI stated he had pain at rest that increased on motion and with repeated use.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a TDRL placement rating of 10% and permanent disability rating after removal from TDRL of 10% for the right hip pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that right shoulder pain, right elbow bursitis pain, right ear hearing loss, pleurisy from right chest spontaneous pneumothorax, and low back pain with spasm were 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.

Right Ear Hearing Loss, Pleurisy from Right Chest Spontaneous Pneumothorax, and Low Back Pain with Spasm.  The Board reviewed all these conditions and determined none of these conditions were profiled and none were implicated in the commander’s statement and were not judged to fail retention standards.  There was no performance based evidence from the record that any of these conditions 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 right ear hearing loss, pleurisy from right chest spontaneous pneumothorax, and low back pain with spasm contended conditions and so no additional disability ratings are recommended.

Right Shoulder and Right Elbow.  The MEB NARSUM stated the right shoulder pain was related to the dysfunction of the right hip.  The NARSUM stated the CI fell on his right elbow and developed right elbow post-traumatic bursitis.  Functionally, the commander’s performance statement implicated the right shoulder and elbow conditions by referencing to the CI’s profiled conditions and limitations.  The right shoulder and right elbow conditions were given a U3 profile and assigned functional and physical fitness restrictions; unable to:  carry and fire individual assigned weapons; move with a fighting load at least 2 miles; construct an individual fighting position; do 3-5 second rushes; perform physical fitness activities; and lift or carry more than 20 pounds.  The MEB NARSUM examiner corroborated these performance based restrictions, stating the soldier:  “is not able to carry and fire individual assigned weapon because of the weight of the armor, and his elbow will not accommodate firing his rifle, and the shoulder won't handle the load from his armor either without exacting a price; is not able to move with a fighting load at least 2 miles both from hip and shoulder problems; is not able to construct an individual fighting position this activity limits  him in all three areas [right hip, shoulder and elbow]; is not able to do 3-5 second rushes under direct and indirect fire this activity also limits him in all three areas [right hip, shoulder and elbow].”  Additionally, the examiner stated, “The soldier is not able to physically perform to the level required all of a soldier.”

Two weeks prior to separation, the C&P examination reported right shoulder intermittent pain with flare-ups with lifting, pulling, or overhead use.  Shoulder pain occurred on movement, beginning at 100 degrees for flexion and 90 degrees for abduction.  The C&P examination also reported the CI experienced mild right elbow pain at rest.  He had full range-of-motion without painful motion, but had some loss of function due to pain with use during flare-ups and intermittent pain if he puts pressure on it.

The Board directed its attention to its fitness recommendation based on the above evidence. The PEB determined the CI’s right shoulder and elbow conditions were not-unfitting stating, “Although the conditions exist, there is insufficient evidence that the conditions cause significant limitation in performance of duty expected of an Information Technology Specialist.  The Board agreed with the MEB NARSUM examiner fitness comment that stated due in part to the right shoulder and elbow conditions, the soldier is not able to physically perform to the level required all of a soldier regardless of MOS.  The Board determined the CI’s right shoulder and elbow conditions were exacerbated by the physical activities and interfered with the satisfactory duty performance and soldiering physical requirements.  After due deliberation, members agreed that the preponderance of the evidence with regard to the functional impairment of the right shoulder and elbow conditions favors their recommendation as additional unfitting conditions for Service disability rating.

The Board directed its attention to its rating recommendation based on the above evidence.  The Board must determine the rating recommendation for the right shoulder and elbow conditions based on §4.129 constructional TDRL requirements cited in the anxiety disorder above.  The C&P General examination performed 2 weeks prior to separation is the most proximate and probative source of comprehensive evidence to evaluation the CI at TDRL placement and removal; since there is no subsequent examination for the Board’s consideration.  The C&P examination, 2 weeks prior to separation, reported right shoulder intermittent pain with flare-ups with lifting, pulling, or overhead use; and painful motion at 100 degrees flexion and 90 degrees abduction.  The C&P examination reported the CI had full range- of-motion without painful motion, but had some loss of function due to pain with use during flare-ups and intermittent pain if he puts pressure on it.

After due deliberation, and considering the preponderance of the evidence, the Board recommends the right shoulder pain appropriately coded 5201-5024 (Arm, limitation of motion and Tenosynovitis) IAW §4.59 (Painful motion) at a 10% rating at TDRL placement and removal (permanent separation).  Likewise, the Board recommends the right elbow bursitis appropriately coded 5206-5019 (Forearm, limitation of motion and Bursitis) rated 0% at TDRL placement and removal (permanent separation).

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 anxiety disorder, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129, as DOD directed, and §4.130; and a 30% permanent rating at 6 months IAW VASRD §4.130.  In the matter of the right hip pain, the Board unanimously recommends an initial TDRL rating of 10% in retroactive compliance with VASRD §4.129, as DOD directed, and §4.71a; and a 10% permanent rating at 6 months.  In the matter of the contended right shoulder pain condition, the Board unanimously recommends the condition as unfitting and recommends an initial TDRL and permanent separation disability rating of 10%, coded 5201-5024 IAW VASRD §4.71a.  In the matter of the contended right elbow bursitis condition the Board unanimously recommends the condition as unfitting and recommends an initial TDRL and permanent separation disability rating of 0%, coded 5206-5019 IAW VASRD §4.71a.  In the matter of the contended right elbow bursitis pain the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 0%, coded 5206-5019 IAW VASRD §4.71a.  In the matter of the contended right ear hearing loss, pleurisy from right chest spontaneous pneumothorax, and low back pain with spasm conditions, the Board 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Anxiety Disorder	9413	50%	30%	
Right Hip Pain	5099-5003	10%	10%	
Right Shoulder Pain	5201-5024	10%	10%	
Bursitis, Right Elbow	5206-5019	0%	0%	
COMBINED	60%	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130521 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXX, AR20160000073 (PD201301101)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40%.

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 temporary disability 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 day following the six month TDRL period.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, provide 60% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 40% effective the day following the constructive six month TDRL period.  

	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:

CF: 
(  ) DoD PDBR
(  ) DVA