RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301125
BRANCH OF SERVICE:  Army	BOARD DATE:  20130220
SEPARATION DATE:  20070428

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B/Infantry) medically separated for a right ankle condition.  He had a history of chronic right ankle pain and repetitive sprain injuries, which was later suspected of a fracture on X-ray, and underwent surgical stabilization in 2005.  Post-operatively he suffered worsening pain diagnosed as complex regional pain syndrome (CRPS).  Despite a protracted attempt at pain control and repeat surgery, the condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The CRPS condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified two mental health (MH) conditions, “adjustment disorder with depressed mood” and “anxiety disorder, not otherwise specified (NOS) in remission,” which were forwarded to the PEB as medically acceptable.  The Informal PEB adjudicated “complex regional pain syndrome, right lower limb s/p open reduction and internal fixation (ORIF) of right ankle fracture” as unfitting, rated 20%, with application of the VA Schedule for Rating Disabilities (VASRD).  The MH conditions were determined to be not unfitting.  After withdrawing an initial non-concurrence with the PEB findings, the CI was medically separated.

CI CONTENTION: The CI writes: “Increased limited mobility, pain of ankle.  Increase in symptoms of PTSD, school problems related to PTSD [posttraumatic stress disorder], job loss, insomnia, sense of humor not S/S of remission.  Best at hiding problem.  Sleep, mood nightmares, job & school problems have cont. to worsen since discharge—PTSD should be found unfit and added to discharge.  Symptoms were not in remission but my [illegible word] to treatment was.  I stopped going to treatment while on active duty because at the time it made symptoms worse not better”.

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 MH condition in accordance with the Secretary of Defense directive for a comprehensive review of Service members who were referred to the military Disability Evaluation System (DES) 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 (specifically with reference to PTSD or downgrade of MH conditions to non-rated adjustment disorder); applicability of VASRD §4.129; and, rating (via §4.129 or §4.130 as appropriate) of MH conditions.  Under the Terms of Reference of the MH Review Project, the Panel considers the criteria for diagnosis of PTSD as specified in the Diagnostic and Statistical Manual for Mental Disorders IV - Text Revision (DSM IV-TR): the evidence for the stressor (criterion A), re-experiencing of the event (criterion B), persistent avoidance of stimuli associated with the trauma (criterion C), hyperarousal (criterion D), duration and onset (criterion E), and presence of significant distress or impairment in social, occupational or other important area of functioning (criterion F).  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.  The rating for the unfitting ankle condition 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.

The Board acknowledges the CI’s information regarding the worsening impairment with which his service-connected conditions continue 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.  The Board likewise acknowledges the CI’s implied contention for rating of his MH condition which was determined to be not unfitting by the PEB; and, emphasizes that the disability compensation may only be offered for those conditions that cut short the member’s service career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD, and based on the degree of disability evidenced at separation, will be recommended.

RATING COMPARISON:

Service IPEB – Dated 20070116	VA - (3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
CRPS/Surgical Residuals, Right Ankle	8720	20%	Fracture, R Ankle w/ CRPS	5271	10%*	20070730	
Adjustment Disorder/Anxiety Disorder	Not Unfitting	PTSD	9411	30%	20070801	
No Additional MEB/PEB Entries	Other x 1 / NSC x 5	20070730	
Combined:  20%	Combined:  40%*	
Derived from VA Rating Decision (VARD) dated 20070925 (most proximate to date of separation [DOS]).
*Increased on appeal to 20%, retroeffective to DOS, by VARD dated 20110818.

ANALYSIS SUMMARY:

Right Ankle Condition.  There are conflicting accounts regarding the history of the condition.  The narrative summary (NARSUM) and post-separation VA Compensation and Pension (C&P) examinations describe a discrete twisting injury and fracture of the right ankle in 2005 requiring an ORIF in April 2005.  The earliest associated entry in the available service treatment record (STR) is from December 2004 and documents “right ankle weakness due to repeated inversion injuries for 6 years unresponsive to conservative therapy.”  This history is repeated in a subsequent note, although an X-ray from that period raises the question of a non-displaced malleolar (ankle bone) fracture.  A pre-operative note states “pending surgery for ankle instability”; and, the operative note for the first ankle surgery on 15 April 2005 confirms that it was a Broström procedure for ligamentous instability, not an ORIF for fracture stabilization.  This confusion notwithstanding, it is clear that the CI began developing severe pain within a month of the surgery and was diagnosed with CRPS early in the post-operative course.  He required narcotic analgesics and was referred for specialty pain management.  His treatment included local nerve blocks and procedure notes indicate that the anterior tibial (deep peroneal) nerve (or tributaries) was targeted with transient relief.  On 3 May 2006 (less than 12 months prior to separation), a second surgical intervention was performed (laparoscopic ankle stabilization), but with minimal success in relieving pain or restoring function.  Subsequent STR entries note persistent, although improving, pain; hypersensitivity to touch; painful ankle motion; and an antalgic gait.  Follow-up X-ray after the second surgery demonstrated normal alignment with no visible fracture or arthritis, and indicated that previous orthopedic pins had been removed.  There are serial range-of-motion (ROM) examinations which reflect dorsiflexion from 0 degrees to 10 degrees (normal 20 degrees) and plantar flexion from 35 degrees to 40 degrees (normal 45 degrees).  The last STR entry (still 6 months prior to separation) documented, “Overall symptoms with severe pain and swelling are reduced, but continues to have discoloration, sweating, burning pain and swelling with prolonged activity or standing.  He has weaned himself off all medications [clarifying that minimal relief did not outweigh side effects].”  The NARSUM characterized the pain as “constant moderate,” and, the physical exam recorded an antalgic gait and tactile hypersensitivity over the lateral ankle/lower calf (deep peroneal nerve distribution).  The examiner referred to the profile for physical limitations.  The profile narrative stated, “No impact.  No ruck march.  Limit standing to tolerance.  Must be allowed to sit and elevate right foot as needed for swelling.”  The VA C&P examiner (3 months post-separation) recorded symptoms of pain rated 8/10, weakness, stiffness, swelling and “giving away” of the right ankle.  Functional impairment was characterized as “limited mobility” and a history was elicited of “incapacitating episodes as often as 2 times per month, lasting 1 day.”  The VA physical exam noted antalgic gait and non-specific “tenderness” of the joint without swelling, weakness, or guarding.  The ROM measurements were dorsiflexion 20 degrees and plantar flexion 45 degrees (both normal), noting decreased endurance and pain with repetition.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating was for “moderate” impairment under the peripheral nerve code 8720 (neuralgia, sciatic); and, the next higher rating under that code is 40% for “moderately severe” impairment.  The VA’s 10% rating was for “moderate” limitation of motion under 5271 (the sole ROM code for the ankle); and, the only higher rating under that code is 20% for “marked” limitation.  There are no ankle joint codes under VASRD §4.71a, barring ankylosis which was not present, which would yield a rating higher than 20%.  Analogous coding to 5299-5262 (tibia and fibula, impairment of) confers a 30% rating for “marked” ankle disability; although, malunion (no visible fracture in this case) is specified for that rating, and analogous application would be tenuous.  Members agreed that the dominant (and only unfitting) disability in this case was the pain associated with CRPS, and peripheral nerve coding for neuralgia is clearly a clinically logical and fair pathway for rating.  Since the ROM limitation (arguably not itself unfitting) was secondary to pain (barring a very speculative attribution to scar tissue), members agreed that separate ratings for neuralgia and ROM limitation would violate VASRD §4.14 (avoidance of pyramiding).  Having concurred that peripheral nerve rating was appropriate to the case, members considered whether a rating higher than 20% was justified by that route.  First it is recognized that although the PEB chose the sciatic nerve for rating, the clinical evidence establishes that the involved nerve was the anterior tibial (deep peroneal).  VASRD §4.124a provides a maximum rating of 20% under 8723 (neuralgia, anterior tibial nerve) for “severe” impairment.  Furthermore VASRD §4.124 (neuralgia, cranial or peripheral) stipulates that the maximum rating be for ‘moderate’ impairment (which would be 10% under 8723).  If sciatic coding were conceded and the pathology were recharacterized as neuritis, a 40% rating for “moderately severe” impairment could be entertained IAW VASRD §4.123 (neuritis, cranial or peripheral); but, §4.123 stipulates “loss of reflexes, muscle atrophy, [and] sensory disturbance” which were not in evidence.  Members agreed that this option for a higher rating could not be supported.  Analogous coding to 5299-5262 with a 30% rating for “marked” ankle disability, as elaborated above, was also deliberated; and, members agreed that neither that coding approach nor the “marked” characterization of severity could be supported by the evidence.  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 of the right ankle condition.

Contended MH Condition.  The CI was deployed to Iraq for 8 months, December 2005 – April 2006, and received the Combat Infantry Badge.  There is an STR entry for a primary care visit in March 2005 (9 months prior to deployment) noting that the applicant was seeking counselling for “depression X 6-8 months.”  There is a follow-up entry from a psychologist that antidepressants were being prescribed, and that visits would be scheduled, but there is no further MH evidence in the STR preceding or during deployment.  There are STR entries noting that the applicant was being treated for depression after deployment and the medication log confirms periods of treatment with various psychoactive medications.  However, there are no directed behavioral health notes in evidence.  The post-deployment health reassessment (PDHRA) dated 29 March 2007 was significantly delayed (11 months) after redeployment and a month prior to separation.  The provider indicated a “major concern” for “PTSD symptoms” and “anger/aggression.”  The assessment did not provide elaboration of DSM IV-TR Criterion A; and, the applicant endorsed symptoms of Criterion D, but denied symptoms for Criteria B and C.  There is no evidence of suicidal ideation or attempts, serious disciplinary or legal issue, or psychiatric crisis/hospitalization.  There is no psychiatric addendum to the NARSUM, but there is a formal memorandum on 5 January 2007 from a staff psychiatrist to the MEB, which is excerpted below.
1. Diagnosis:
Axis I: Adjustment Disorder with Depressed mood; Anxiety Disorder, NOS, in remission …
Axis V: Current GAF [Global Assessment of Functioning] = 65 [mild range]

2. [Applicant Name] was evaluated by the undersigned psychiatrist in August and October 2006, and again on 05 January 2007.  Evaluation included a clinical interview, review of records, and mental status examination.  According to the records he exhibited symptoms consistent with but not meeting full criteria for [PTSD] after evacuation from theatre (Spring 2006).  Those symptoms have largely remitted.  His main stressor at this time is his constant pain.  He is experiencing occupational and relationship stressors that are causing occasional insomnia and irritability, but these symptoms are not causing functional impairment.  He does not exhibit symptoms that meet criteria for any mood or anxiety disorder.  In fact he is showing adaptive mature coping skills and a sense of humor.  From a psychiatric point of view, he meets retention standards in accordance with AR 40-501 chapter 3, thus does not require any addendum to his Medical Board process.
The MEB history and physical examination documented the presence of MH symptoms and the examiner entered PTSD and depression in the summary of diagnoses.  The NARSUM listed depression under medical history and Wellbutrin (antidepressant) under medications.  The commander’s performance statement noted only physical limitations to MOS performance.  The profile throughout service was S1.

A VA psychiatric C&P evaluation was performed on 1 August 2007 (less than 3 months after separation).  The applicant related a history of witnessed deaths and other combat stressors (Criterion A); and, endorsed symptoms requisite for DSM IV-TR Criteria B – E.  The examiner entered an Axis I diagnosis of PTSD and an Axis II diagnosis of personality disorder, NOS.  The latter was not identified in service, but was supported by features and observations elaborated by the VA psychiatrist.  The GAF assignment was 65, unchanged from that of the MEB psychiatric consultant.  The VA conferred a 30% rating for PTSD based on this exam.

The Board directs attention to its recommendations based on the above evidence.  The Board’s first assessment with regard to the MH condition, under MH Special Review Panel guidelines, is to judge whether the diagnosis of PTSD was changed or unfairly eliminated during DES proceedings.  There is evidence for a diagnosis of PTSD and depression on the MEB physical.  There was not an Axis I diagnosis of PTSD or depression by a Service MH provider in the available record.  There was no prior to separation corroboration of the requisite DSM IV-TR criteria; and, evidence from the PDHRA near separation indicated that all PTSD criteria were not satisfied; in addition, a directed psychiatric opinion indicated that PTSD criteria were not met.  Although the diagnosis of adjustment disorder was forwarded by the MEB, which would not have been ratable IAW DoDI 1332.38 (E5), the concomitant diagnosis of anxiety disorder would have merited Service rating (had it been determined to be unfitting).  This case does not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Panel.  The Board considered the evidence of record, including the source VA examination documenting differing diagnoses (PTSD versus anxiety disorder).  There was not a preponderance of evidence for changing the PEB’s MH diagnoses to PTSD.

Regardless of the MH Review Panel considerations, the Board is left with its main charge of assessing the fairness of the PEB’s determination that the forwarded MH conditions 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 MH conditions were not profiled or 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 MH impairment 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 (regardless of diagnostic considerations).

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 right ankle condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended MH conditions, the Board unanimously recommends no change from the PEB diagnoses or determination as not unfitting.  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, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Complex Regional Pain Syndrome, Surgical Residuals, Right Ankle	8720	20%	
Adjustment Disorder with Depressed Mood
Anxiety Disorder, Not Otherwise Specified	Not Unfitting	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130812, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			  
SFMR-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, AR20140007581 (PD201301125)

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