RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00169
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070123

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Indirect Fire Infantryman, medically separated for “posttraumatic stress disorder (PTSD)” and “chronic left knee instability” rated 10% and 10% respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI was given a higher rating by the VA for the PTSD and contends he was not evaluated for traumatic brain injury (TBI).  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 based upon a 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:  

SERVICE PEB - 20070103	VARD - 20070227	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Posttraumatic Stress Disorder (PTSD)	9411	10%	Posttraumatic Stress, Left Knee Partial Tear of the Medial Collateral Ligament, and Shrapnel Injury, Scars to the Buttock and Left and Right Thigh	5260-9411	50%	20060831	
Chronic Left Knee Instability	5257	10%					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Posttraumatic Stress Disorder (PTSD).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s PTSD condition began in April 2006 after a series of combat actions in Iraq that included firefights and improvised explosive device (IED) detonations.  He deployed to Iraq from November 2005 - April 2006.  The MEB forwarded “posttraumatic stress disorder, chronic…” and “shrapnel wounds to buttocks and leg, & medial collateral ligament left knee sprain” for PEB adjudication.  

The CI described several traumatic events, one of which he was injured by shrapnel to his buttocks and both thighs, leaving him in chronic pain.  He self-referred to Behavioral Health on 26 April 2006 due to “nightmares, weird thoughts and weird feelings.”  He described flashbacks, sleep difficulties, olfactory hallucinations, avoidance, and difficulties with concentration, attention and memory.  He was taking medication for sleep, depression and for nightmares with some improvement, but difficulty functioning in a military environment.  Mental status examination (MSE) was essentially normal.  A diagnosis of PTSD was rendered with a Global Assessment of Functioning (GAF) score of 60-65 (mild to moderate symptoms, impairment.)  At a 31 August 2006 VA Compensation and Pension (C&P) evaluation, performed, 5 months before separation, the CI reported nightmares, sleep walking, and anxiety.  The VARD noted the CI worked as a clerk/jailer, was married and attended Junior college after separation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 9411 code (Post-traumatic stress disorder), citing “mild social/industrial impairment.”  The VA assigned a 50% pre-stabilization rating coded 9411 based on the VA C&P examination 5 months before separation, stating that there was “likelihood of improvement, the assigned evaluation is not considered permanent and is subject to a future review examination.”  The VA later assigned a permanent 50% rating for the PTSD approximately 2 years later.

The Board first considered if application of VASRD §4.129 with a 6 month (50% minimum) period on the temporary disability retired list (TDRL) was indicated in this case (per Board directive from DOD).  Board members agreed that the provisions of VASRD §4.129 were applicable in this case due to the combat experiences.  Disability associated with any psychiatric condition, regardless of the diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130 general rating formula for mental health (MH) conditions.  The Board then considered if there was evidence for a §4.130 rating higher than the §4.129 minimum mandated 50% at time of TDRL placement.  The Board agreed that the §4.130 criteria for a rating higher than 50% was not met near the time of separation, and therefore the minimum 50% initial TDRL rating is applicable.

The most proximate source of comprehensive evidence on which to base the permanent rating is the NARSUM examination.  The CI reported symptoms of anxiety, depression, and sleep disturbance that seemed to be responding to treatment, although the military environment remained stressful.  The §4.130 criteria for a 10% rating is “symptoms controlled by continuous medication,” for a 30% rating is “occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks,” while criteria for a 50% rating requires “occupational and social impairment with reduced reliability and productivity.”  Board members therefore concluded that the 10% rating most accurately depicted the condition at the time of removal from the TDRL.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for 6-months of constructive TDRL and a 10% permanent rating thereafter for the PTSD condition.

Chronic Left Knee Instability.  According to the STR and MEB NARSUM, the CI’s left knee condition began in November 2004 while playing football.  He had pain in the knee for several months and was treated conservatively.  He reinjured the knee in 2005 and again in 2006 after a blast injury in Iraq.  The pain returned and imaging in November 2006 showed disruption of the superficial medial collateral ligament.  

The MEB examination noted a normal gait with no ambulatory aids.  All joints showed a full range of motion (ROM), muscle strength 5.5, no pain, weakness, fatigue, swelling or effusion.  The MSE examination noted he walked with a slow, altered gait secondary to having a left knee injury.  The commander noted his performance in Rear Detachment was satisfactory.

At the VA C&P examination performed on the same day as the MEB examination in August 2006, the CI reported pain to level 6/10 and swelling weekly.  The injury was precipitated/aggravated by prolonged standing and walking.  Alleviating factors were medication and ice.  Examination showed a normal gait with no ambulatory aids utilized.  All joints showed a full ROM, muscle strength 5.5, no pain, weakness, fatigue, swelling or effusion.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5257 (knee, other impairment of), citing instability and laxity.  The VA subsumed the left knee condition with the above mentioned PTSD rating coded 5260 (Leg, limitation of flexion) based on the VA C&P examination 5 months before separation, citing “significant limitation of movement and chronic pain.”  Approximately 2 years later, the VA rated the left knee separate from the PTSD condition and awarded a 10% rating using the same 5260 code(Leg, limitation of flexion).

While there was no evidence of compensable limitation of motion, the Board agreed that the PEB’s 10% rating was supported under the 5003 coding pathway by sufficient evidence of painful motion and or functional loss (§4.40.)  Absent surgical intervention, or abnormal boney union, alternative knee codes of 5258 and 5262 were not applicable.  There is no evidence of incapacitating episodes to support the 20% higher rating under 5003.  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 left knee condition.  

BOARD FINDINGS:  In the matter of the PTSD condition, the Board unanimously recommends a disability rating of 50%, coded 9411 IAW VASRD §4.129 for 6 months from the time of discharge consistent with a constructive period of TDRL and then a permanent separation rating of 10% IAW VASRD §4.130.  In the matter of the left knee condition and IAW VASRD §4.71a, the Board recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	Rating	
		TDRL	Permanent	
Post-traumatic stress disorder (PTSD)	9411	50%	10%	
Left Knee	5257	10%	10%	
Combined Rating	60%	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140102, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

01 AUG 2016

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, AR20160011980 (PD201400169)

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:
CF:
( ) DoD PDBR
( ) DVA