RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00406
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070506

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E6, Infantry, medically separated for “posttraumatic stress disorder (PTSD)” and “chronic pain left shoulder and left ankle,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI requests a higher rating for her service connected conditions.  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 - 20070411	VARD - 20071130	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD and MDD	9411	10%	PTSD	9411	NSC	STR	
			Major Recurrent Moderate Depression	9434	NSC	STR	
Chronic Pain Left Shoulder and Left Ankle	5099-5003	10%	Status Post Left Shoulder Surgery with Mumford and Superior Labral  Anterior Posterior  (SLAP) Lesion Repair	5201	0%	STR	
			Chondral Lesion to Weight Bearing Surface Talar Dome on the Left Foot and Ankle	5271	0%	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

PTSD.  The psychiatric narrative summary (NARSUM) documented the CI reported exposure to trauma during his 2005 (12 months) Iraq deployment.  He first presented to mental health (MH) in September 2006 with symptoms of anxiety and depression, and was subsequently diagnosed with PTSD and depression.  He had nightmares related to the deaths of fellow soldiers secondary to improvised explosive device (IED) blasts.  He had problems with sleep, anger, irritability, and mood instability.  He also reported some dissociative events related to combat, recorded as flashbacks.  The CI was seen regularly for talk therapy and medication management.  He was prescribed antidepressant medication and Ambien for sleep.  

The NARSUM was accomplished on 13 February 2007, approximately 3 months prior to separation.  The CI indicated marital stress, and reported feelings of hopelessness and depression.  The examiner stated that the CI “has fleeting suicidal ideations,” but did not plan to hurt himself; however, “fleeting” was not defined, nor were the reasons for suicidal ideation revealed.  The examiner wrote in the formal NARSUM that the CI’s affect was anxious, tearful and irritable, and mood was “angry all the time.”  It was noted that he had suicidal and homicidal ideations.  However, during the actual examination, recorded on the SF 600, Chronological Record of Medical Care, the same day of the NARSUM, the examiner documented “affect euthymic, mood “okay” and homicidal ideation was absent.  Both recorded absence of psychotic symptoms, and absent of impairment in judgment or thinking, or cognition.  The examiner assessed PTSD, severe, major depressive disorder (MDD) recurrent, moderate, and chronic insomnia.  A Global Assessment of Functioning (GAF) score of 35, which connotes some impairment in reality testing or communication or major impairment in several areas such as work, family, judgment, thinking or mood.  Service treatment record prior to and after the NARSUM did not record any report of suicidal or homicidal ideation, impairment in reality testing or communication.  During the 3 months prior to separation, at the therapist visits (3 total), symptoms related to PTSD were absent.  There was one psychiatrist note dated a day before the NARSUM that recorded PTSD symptoms triggered by a visit to the hospital to see his aunt.  The CI reported significant family issues related to health of a family member, family crisis, family interactions, and family concerns.  Clinic entry dated 29 March 2007 recorded a normal mental status examination (MSE), and although the CI complained of depression, his mood was euthymic and affect was normal.  The last mental health (MH) entry dated 5 April 2007, 1 month prior to separation, recorded a normal MSE with the exception of a dysphoric mood and restricted affect.  It was noted that the CI “appeared tired.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the conditions of PTSD, major depression and insomnia, and assigned a 10% rating, coded 9411, for mild industrial impairment.  The PEB also stated, “Unit reports that he has performed a wide variety of tasks, above standards with excellent results.”    The VASRD permits the bundling of MH diagnoses since MH conditions are rated based on symptoms and not diagnoses.  The PEB rating, as described above, was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to Veterans’ Administration Schedule for Rating Disabilities (VASRD) §4.129. The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), must consider if the definition of §4.129 is met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event”.  If the Board judges that application of §4.129 is appropriate, it will recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation, based on the facts in evidence which are most probative for that interval.  The Board noted the PEB documented that 10A/C (combat-related) was awarded, and PTSD was related to conflict in Iraq.  Therefore, all Board members agreed the provisions of §4.129 were applicable in this case.  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.  Available treatment records prior to constructive TDRL period demonstrated some impairment in occupational and social functioning; however, there was no documented evidence to support impairment in judgment or thinking.  There were no psychiatric hospitalizations, no recorded visit to the emergency room (ER) for mental health issues, and the MSE at the NARSUM documented findings that do not approach the 70% disability criteria.  The Board considered the record in evidence did not support a higher than 50% rating for TDRL placement. 

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 50%, 30% and 10% disability rating.  The 50% disability rating requires evidence of “Occupational and social impairment with reduced reliability and productivity due to symptoms such as: flat affect, panic attacks more than once a week, difficulty in understanding complex commands, impaired short and long-term memory and impairment in judgment and thinking…”  The Board found no MH treatment records correlating with the TDRL removal period, and therefore, must rely on the NARSUM and clinical notes in the 90 days prior to separation.  The MSE at the NARSUM recorded findings not documented anywhere else in the service treatment record, such as the history suicidal and homicidal ideation. The NARSUM also lacked internal consistency in regards to the MSE findings recorded in the SF600 versus findings recorded at the NARSUM, both conducted on the same day, and the CI’s overall condition (GAF representing impairment in reality testing or communication).  Therefore, that document was of limited probative value.  The record consistently documented absence of suicidal (SI) and homicidal ideation (HI); no impairment in judgment or thinking, no recorded panic attacks, or visits to the emergency room related to SI or HI.  There was no evidence of chronic sleep impairment, issues with memory, thinking, or judgment. Although the CI reported issues with his temper, there was no documented domestic violence or a legal history.  He was not hospitalized psychiatrically at any time during service.  The commander’s statement, 2 months prior to separation, did not implicate an MH condition.  It mentioned the diagnosis of PTSD along with 4 other non-MH conditions.  The commander stated he was an “outstanding soldier, and had always performed his duties above standard with excellent results”.  It was noted that he had “personal challenges,” but had continued to make improvements.  The evidence demonstrated the CI’s condition was stable at the time of separation, and his disability was most reflective of the 10% level 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.”  After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 50% disability rating at TDRL placement and a permanent 10% disability for the condition of PTSD.

Chronic Pain Left Shoulder and Left Ankle Pain.  The PEB combined the shoulder and ankle condition as a single unfitting condition, coded analogously to 5003 and rated 10%.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW applicable VASRD sections.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the reasonable requirement that each ‘unbundled’ condition was unfitting in and of itself or at least an indispensable element of a combined effect rating.  Thus the Board must maintain 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. The Board agreed that the evidence reasonably supports that both conditions were separately unfitting.  The Board undertook an evaluation of each condition separately for rating purposes.  Additionally, as noted above, the CI was placed on constructive TDRL.

Chronic Pain Left Shoulder.  The service treatment records and the NARSUM indicated the CI sustained an injury to his left shoulder while deployed to Iraq, August 2005.  He was evaluated and assessed with left shoulder strain.  Radiographs taken in January 2006 documented a tear in the rotator cuff and a paralabral cyst.  The CI underwent surgical repair in April 2006 without complications; however, there was no improvement in his shoulder pain, despite medication and physical rehabilitation treatment.  The NARSUM was conducted in December 2006, 5 months prior to separation.  Physical examination of the left shoulder demonstrated weakness and “full range of motion” (ROM).  Specifically, flexion was 125 degrees (normal 180) and abduction was 92 degrees (180).  There was diffuse tenderness, and strength and fatigability limited by pain only.  Sensation and reflexes were normal.  The examiner noted that the CI had some subjective weakness while lifting, and occasional stiffness, and some instability when picking things up due to pain, but no locking.  The diagnosis of left shoulder pain was assessed. The CI was non-attendant at the VA C&P examination.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB combined the conditions of left shoulder pain and left ankle pain, and assigned a 10% under the pain policy, coded analogous to 5003 (degenerative arthritis). The VA separated the conditions and used the available treatment records to assign a 0% rating coded 5201 (arm, limitation of motion) for the left shoulder pain.  The VARD noted that an examination was required to rate current ROM and pain, and thus, the only rating option was 0%.  The Board then undertook to rate the shoulder pain condition.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  Applicable diagnostic codes include: 5003 (degenerative arthritis) 5201 (limitation of arm motion); 5202, (humerus, other impairment), and 5203 (dislocation of clavicle or scapula).  The Board considered all of the applicable codes and was unable to find a pathway to a compensable rating.  However, the record sufficiently documented pain and weakness, compensable under VARSD §4.59, §4.45, or §4.40.  Thereupon, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left shoulder pain condition at TDRL placement and removal.

Chronic Pain Left Ankle. The Board next proceeded to the rating of the left ankle pain condition.  There were two goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation.  The NARSUM recorded left ankle dorsiflexion of -2 degrees (0-20), and plantar flexion to 40 degrees (45), compared to right ankle dorsiflexion of 0 degrees and plantar flexion to 45 degrees.  The examiner noted that the CI’s ankle pain worsened with prolonged standing, and on examination, there was pain on motion.  The examiner opined the condition did not meet retention standards.  He was evaluated at the orthopedic clinic and diagnosed with tendonitis. MRI of the left ankle demonstrated tendonitis and damage to the cartilage of the heel.  The orthopedic evaluation was performed 7 months before separation.  Treatment records consistently documented left ankle pain, stiffness and tenderness, and no evidence of weakness, or instability.  

The Board considered rating code options 5257 (subluxation), 5258 (dislocation, cartilage), and 5260 (limitation of flexion) and determined the preponderance of evidence did not support a rating under any of these codes.  There was no recorded ratable limitation in ROM in any of the treatment records before separation.  Additionally, there was no evidence of knee instability.  There was no other applicable VARSD code to a compensable rating.  However, the Board noted the application of VASRD §4.59, painful motion was supported by the evidence.  Thereupon, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left ankle pain condition at TDRL placement and removal.  

BOARD FINDINGS:  In the matter of the posttraumatic disorder condition, the Board recommends a disability rating of 50%, coded 9411 for the TDRL placement and a permanent disability rating of 10%, coded 9411 IAW VASRD §4.130.  In the matter of the left shoulder pain condition, the Board recommends a disability rating of 10%, coded analogously 5003 for TDRL placement and a permanent disability rating of 10% IAW VASRD §4.71a.  In the matter of the left ankle pain condition, the Board recommends a disability rating of 10%, coded analogously 5003 for TDRL placement and a permanent disability rating of 10% IAW VASRD §4.71a.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Posttraumatic Stress Disorder	9411	50%	10%	
Left Shoulder Pain	5099-5003	10%	10%	
Left Ankle Pain	5099-5003	10%	10%	
COMBINED	70%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140107, 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 XXXXXXXXXX, AR20160010613 (PD201400406)

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 
70% 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 re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30%.

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 70% 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 30% 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