RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX		CASE:  PD-2013-01589
BRANCH OF SERVICE:  Army		BOARD DATE:  20140612
SEPARATION DATE:  20050228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (11B/Infantryman) medically separated for bilateral knee pain.  The bilateral knee condition 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/S2 and referred for a Medical Evaluation Board (MEB).  Chronic bilateral knee pain due to patellofemoral syndrome/patellar chondromalacia, characterized as not meeting retention standards, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated bilateral knee pain secondary to patellofemoral syndrome as unfitting, rated 0%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “10% - knees 10% PTSD.” 

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 applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the MH Review Terms of Reference.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20041220	VA* - (2 Mos. Pre -Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
BILATERAL  Knee Pain	5009 5003	0%	BILATERAL Knee Pain	5009 5010	10%	20041202	
Mental Health Condition	Not Adjudicated	Adjustment D/O	9440	10%	20041130	
Other x 0 (Not in Scope)					
Rated:  0%	Combined:  20%	
* Derived from VA Rating Decision (VARD) dated 20050233 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  The PEB combined the left and right knee pain conditions as a single unfitting condition rated as 5099-5003 (analogous to arthritis) at 0%.  The PEB relied on AR 635.40 (B.24 f.) and the USAPDA pain policy for not applying separately compensable VASRD codes.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD rating guidelines.  If the Board judges that two or more separate ratings are warranted in such cases; it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself.  Therefore, the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

Bilateral Knee Pain Condition.  The narrative summary (NARSUM) noted the CI had chronic aching of both knees without history of specific trauma for a couple (2002-2003) years, worsening in 2004.  Bilateral knee X-rays were normal.  Orthopedic consultation on 28 September 2004, 5 months prior to separation, noted that the CI had bilateral knee pain, right worse than left, with patellar crepitus and positive grind test of both knees, without other abnormality.  He was diagnosed with bilateral patellofemoral pain syndrome and patellar chondromalacia.  Surgery was not recommended and the CI had physical therapy without resolution of his symptoms.  Magnetic resonance imaging (MRI) of both knees performed the day after the NARSUM examination showed degenerative changes with small joint effusions and possible stress changes of the femoral condyles of both knees and an area of swelling in the left quadriceps muscle just above the knee.  At the MEB exam on 28 October 2004, 4 months prior to separation, the CI reported pain, swelling, and stiffness of both knees, with “cracking and popping” with bending or squatting, but no giving out.  The MEB physical exam of both knees noted tenderness to palpation of the patellae and joint lines, with minimal swelling.  Bilateral knee range-of-motion (ROM) was 0 degrees extension (normal 0) and 120 flexion (normal 140) without pain.  There was no instability noted.  The examiner provided a pain rating of slight/constant.

At the VA Compensation and Pension (C&P) examination on 2 December 2004, 2 months prior to separation, the CI reported bilateral knee pain with stiffness and cracking, difficulty standing, climbing stairs and walking more than a mile or running.  He reported he was not receiving any treatment, had no periods of incapacitation and had not lost any work time.  The VA examination showed normal gait and posture.  Both knees were normal in appearance with full ROM, with no additional loss of ROM with repetition, instability or evidence of cartilage damage and normal motor and sensory examinations.  Bilateral knee X-rays were noted to be normal.  The examiner indicated the CI experienced daily pain with activity due to the knee conditions.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the right and left knee pain conditions and rated as a single unfitting condition of bilateral knee pain at 0%, coded as 5099-5003 (analogous to degenerative arthritis), and cited the USAPDA pain policy.  The VA rated patellofemoral syndrome and patellar chondromalacia of both knees at 10%, coded 5099-5010 (analogous to traumatic arthritis), due to MRI evidence of degenerative joint disease of both knees, without painful motion.  The Board first reviewed to see if both knees remained unfitting when separated from the PEB’s combined adjudication.  The CI was treated for pain in both knees throughout the service treatment record (STR) and MRI of both knees the day after the MEB examination demonstrated abnormalities consistent with the CI’s reported pain.  The permanent profile was for bilateral knee pain and the commander’s statement referenced only chronic knee pain.  The Board agreed that the evidence in the record reasonably supported that both the right and left knees were unfitting for continued military service at the time of separation.  The Board deliberated the rating of the right and left knee pain conditions.  The Board considered coding with 5260 (limitation of leg flexion) or 5261 (limitation of leg extension); but the knees did not reach a compensable rating under the ROM rating criteria according to the DoD instruction, patellofemoral syndrome analogized to 5261.  The Board noted that the VA specified that there was no evidence of painful motion on examination.  However, the Board considered that the totality of the evidence in the record supported that the CI had degenerative changes with chronic pain of both knees that limited activity and concluded both the left and right knees met the 10% rating IAW §4.40 (functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.40, the Board recommends a disability rating of 10% for the right knee and 10% for the left knee conditions separately, both coded as 5299-5261.

Contended Mental Health Conditions.  MH notes in the STR indicated that the CI was deployed to Iraq from January to July 2003 and received a combat infantry badge.  In September 2004, 5 months prior to separation, the CI waved a knife at a non-commissioned officer who was reprimanding him for walking and talking on a cell phone.  He was admitted as a psychiatric inpatient for safety and further assessment.  At the intake evaluation on 14 September 2004, approximately 5 months prior to separation, he reported that since returning from deployment he had difficulty sleeping with nightmares.  He said that he felt trapped when he was being reprimanded and it took him back to events during deployment and he did not know what he was doing.  He reported irritability, frequent violent thoughts and sleeping with weapons near his bed for protection.  In addition, the CI and his family were victims of a financial scam and suffered serious financial losses, which had led to the incident that resulted in the disciplinary action a few months earlier.  On mental status examination (MSE), he was anxious and at times smiled inappropriately, but was otherwise normal without evidence of suicidal or homicidal ideation (SI/HI), or psychotic features.  He denied any past suicide attempt.  The examiner noted that the CI’s command reported that prior to his demotion he was an excellent soldier and “had been on a fast track as a highly regarded soldier in his unit.”  The working diagnosis on intake was PTSD, rule out depression.  The CI was evaluated by the Chief of Inpatient Psychiatry for an MSE because discharge was being considered for the threatening behavior.  The examiner’s Axis I diagnosis was adjustment disorder with mixed disturbance of emotions and conduct and Axis II was narcissistic personality disorder.  An expeditious administrative separation was recommended and the psychiatrist indicated that “the diagnosis does not require disposition through medical channels.”  The examiner noted that the CI was making vague homicidal threats, but was not considered an imminent danger and recommended that he should be held administratively and legally responsible for his actions.  The Chief of Psychiatry dictated the hospital discharge summary and indicated that despite some reported symptoms of PTSD, the treatment team thought that the CI’s symptoms were due to the diagnoses noted.  At discharge his Global Assessment of Functioning (GAF) was 70 and he was willing to face his pending Article 15 and looking forward to going home.  Following hospital discharge he was on psychotropic medications for sleep and anxiety and the diagnosis remained the same on the remaining MH visits in record.  The DD Form 2808, Report of Medical Examination, listed MH diagnoses of anxiety and depression.  There was no psychiatric MEB consult because the service psychiatrist’s opinion was that there was no indication for an MEB and the NARSUM examiner noted that according to psychiatry the CI had no psychological reasons for an MEB.  The final permanent psychiatric profile was S-2.

At the initial VA C&P psychiatric evaluation on 30 November 2004, 3 months prior to separation, the CI reported stressful combat-related events with sleep difficulties, nightmares, anger and irritability.  The examiner noted that the CI’s records indicated that he reported no difficulties following his return from deployment until a sequence of events occurred: he was the victim of a financial scam, with concomitant stress on his family members who were also victims and he received an Article 15 with a demotion for engaging in activities on base to make money.  A few months after this, the knife wielding incident noted above occurred.  On MSE, the CI had a normal mood and affect and the examination was otherwise normal without suicidal ideation, thought/speech disturbance, hallucinations/delusions or other acute features.  The psychiatrist indicated that DSM-IV criteria for PTSD were not met because the CI did not report “fear, helplessness, or horror,” or being stunned or shocked by traumatic events during deployment.  The examiner noted the CI reported being angry and irritable but attributed the symptoms mainly to his personal problems, evidenced by his excellent performance as a soldier after deployment until the personal crises occurred.  The examiner noted the absence of any physiological reactivity or distress at exposure to reminders of the combat events, as well as “no evidence of avoidance which is critical in making a diagnosis of PTSD.”  The Axis I diagnosis was adjustment disorder with mixed disturbance of mood and conduct and Axis II was personality disorder, not otherwise specified (NOS) with a GAF of 80 to 85 (no significant impairment range).

The Board directs attention to its recommendations based on the above evidence; and, its first assessment with regard to the MH condition, under MH Review Project guidelines, is to judge whether a diagnosis was changed or unfairly eliminated during DES proceedings.  The DD Form 2808 listed anxiety and depression, the service psychiatrist diagnosed adjustment disorder and a personality disorder with no indication for an MEB and no MH condition was entered into the DES process.  Therefore, this case did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

Members next considered the diagnosis of the MH condition and noted that both the service and the VA psychiatrists directly addressed a diagnosis of PTSD and provided expert opinion that the CI did not meet diagnostic criteria for PTSD; likewise, both MH examiners diagnosed a single Axis I condition of adjustment disorder.  All members agreed that DSM IV-TR Criteria A – F for a diagnosis of PTSD were not satisfied by a preponderance of evidence.  The PEB and VA psychiatrists likewise provided mutually corroborating evidence that there was not a service disability ratable Axis I MH diagnosis, with both examiners providing an Axis I diagnosis of adjustment disorder.  The PEB conferred MH diagnosis of adjustment disorder was not eligible for disability rating IAW DoDI 1332.38 (E5, conditions not constituting a physical disability).  The Board agreed that even if a service ratable MH condition was conceded; the commander’s statement and the report of MSE by the service psychiatrist provided strong support that no MH condition was unfitting.  After due deliberation in consideration of the preponderance of the evidence, the Board therefore concluded that there was insufficient cause to recommend any MH condition for disability rating.

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 bilateral knee pain was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the bilateral knee condition, the Board unanimously recommends a disability rating as follows: a right knee condition of 10%, and a left knee condition of 10%, each coded 5299-5261, IAW VASRD §4.71a.  In the matter of the contended MH condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board 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	
Right Knee Pain	5299-5261	10%	
Left Knee Pain	5299-5261	10%	
RATED/COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130508, 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 XXXXXXXXXXXXXXX, AR20150006994 (PD201301589)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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		

CF: 
(  ) DoD PDBR
(  ) DVA