RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00808
BRANCH OF SERVICE:  Army	BOARD DATE:  20141002
SEPARATION DATE:  20060517

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV2/E-2 (52D/Power Generator Equipment Repair Specialist) medically separated for a neck, bilateral knees, right shoulder and right foot first metatarsophalangeal joint conditions.  The multiple conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  His profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent U3L3S1 profile and referred for a Medical Evaluation Board (MEB).  The conditions, characterized by the MEB as “cervicalgia,” “bilateral degenerative changes of both knees, mild,” “right should impingement, mild” and “degenerative joint disease of the right first metatarsophalangeal joint” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions, including depressive disorder, not otherwise specified (NOS), as meeting retention standards.  The Informal PEB adjudicated the “chronic cervical strain with early disc desiccation C5/C6,” “degenerative arthritis bilateral knees and right first metatarsophalangeal joints” and “right shoulder pain secondary to impingement syndrome” as unfitting, rated 10%, 10% and 0% respectively, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI listed “PTSD, cervical spine, knees, back, shoulder, depression, sleep apnea.”

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 mental health (MH) condition in accordance with the Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process 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, fitness determination, applicability of VASRD §4.129, and rating (via §4.129 or §4.130 as appropriate) of the MH condition adjudicated as not unfitting.  The ratings for the unfitting neck, right shoulder, bilateral knees, right first metatarsophalangeal joint and the above considerations for the MH condition are addressed below.  The not-unfitting tinnitus and bilateral pes planus conditions were not contended and are not within the defined DoDI 6040.44 purview of the Board.  The applicant contended a back and sleep apnea condition, but these were not identified by the MEB or PEB and are not within the Board’s purview.  These and any condition 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.

RATING COMPARISON:

Service IPEB – Dated 20060328	VA* - (1 Mo. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Cervical Strain	5237	10%	Cervical Strain	5237	10%	20060620	
Bilateral Knees and 1st Metatarsophalangeal Joint, DJD	5003	10%	Left Knee Strain	5260	10%	20060620	
			Right Knee Strain	5260	10%	20060620	
			DJD, Bilateral Great Toes	5003	10%	20060620	
Chronic Right Shoulder Pain Secondary to Impingement Syndrome	5099-5003	0%	Right Shoulder Impingement Syndrome	5201	10%	20060620	
Depressive Disorder, NOS	Not Unfitting	Anxiety Disorder	9413	30%	20060607	
Other x 2 (Not in Scope)	Other x 7	
Combined:  20%	Combined:  70%	
*Derived from VA Rating Decision (VARD) dated 20070123 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

Chronic Cervical Strain Condition.  The CI developed neck pain after wearing combat gear for extended periods of time during a deployment in 2004.  There was no history of acute injury.  Physical therapy did not provide significant benefit for his ongoing neck pain.  Magnetic resonance imaging showed minor degenerative changes with disc bulging at C5-C7.  The MEB separation examination (DD Form 2808) performed on 31 October 2005 (6 months prior to separation) reported tender paraspinal neck muscles and “limited” (but unmeasured) range-of-motion (ROM).  A neurosurgical consultant on 12 January 2006 (4 months prior to separation) reported that the CI could not do push-ups or sit-ups, or wear a helmet without severe pain.  Examination showed a normal gait and neurologic exam.  Surgical intervention was not considered to be an option at that time.  At the narrative summary (NARSUM) evaluation on 13 February 2006 (3 months prior to separation) the CI complained of bouts of pain at the base of the neck 3-4 times per week that was aggravated by pressure on the head, jumping or jarring motions.  Rest, lying down, heat and massage alleviated the pain.

At the VA Compensation and Pension (C&P) exam on 20 June 2006 (a month after separation) the CI complained of neck pain that occurred 4 times per week and lasted for 2 hours.  Pain was produced by physical activity and relieved by rest and medication.  He was able to function when pain was present.  Examination showed tenderness but no muscle spasm.  Gait and spinal contour were normal.  There was no additional limitation after repetition.

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Cervical ROM
(Degrees)	PT ~ 8 Mos. Pre-Sep	VA C&P ~ 1 Mo. Post-Sep	
Flex (45 Normal)	Within Normal Limits	35	
Extension (45)	“	40	
R Lat Flexion (45)	“	45	
L Lat Flexion (45)	“	45	
R Rotation (80)	“	80	
L Rotation (80)	“	80	
Combined (340)	--	325	
Comment	+Tenderness; painful motion end-rotation	+Tenderness; end-range painful motion	
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA each assigned a 10% rating under the 5237 code (cervical strain).  Board members agreed that a 10% rating, but no higher, was supported by the presence of tenderness and painful motion noted on the exam (IAW VASRD §4.59), and by the limitation of flexion and combined ROM reported by the C&P examiner (flexion greater than 30 degrees but not greater than 40 degrees; combined ROM greater than 170 degrees but not greater than 335 degrees).  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet even the 10% criteria under that formula.  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 chronic cervical strain condition.

Degenerative Arthritis, Bilateral Knees and Right First Metatarsophalangeal Joint Conditions.  The PEB combined the right knee, left knee and right first metatarsophalangeal joint (MTP) degenerative arthritis (DJD) conditions under a single disability rating, coded 5003 (degenerative arthritis).  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  To that end, the evidence for the knee and metatarsophalangeal joint conditions are presented separately; with attendant recommendations regarding separate unfitness and separate rating if indicated.

Review of the service treatment record (STR) showed a clinical visit for a left knee injury in December 2003 that resulted in a diagnosis of a ligament sprain.  The record was otherwise silent regarding knee problems until a single assessment in July 2005 (10 months prior to separation) for complaints of right knee pain for two months.  On the MEB separation exam DD Form 2807, the CI checked “No” for “Knee trouble,” but wrote that his “knee swells” and he used a knee brace.  The MEB physical exam noted “ROM full” and bilateral knee tenderness.  There was no examination evidence of ligament instability.  At an MEB orthopedic addendum evaluation on 23 November 2005 (6 months prior to separation), the CI reported bilateral knee pain, right greater than left.  Pain occurred “primarily at the end of a long day.”  Running and rucking could cause the pain.  The examiner stated that “he has had no treatment for this and no injections.”  Medication and activity modification were helpful.  He denied instability symptoms.  Physical exam showed moderate obesity.  Mild tenderness of the lateral aspect of the right knee was present, but there was no tenderness of the left knee.  ROM was noted to be “full;” actual measurements are reflected in the table below.  All ligament testing was normal.  Bilateral knee X-rays showed mild medial compartment narrowing.  The orthopedist’s diagnosis was mild bilateral degenerative joint disease.  The commander’s statement on 5 December 2005 (5 months prior to separation) implicated the neck and shoulder conditions as impediments to duty, but did not mention the knees.  The NARSUM examiner 3 months prior to separation noted bilateral tightness and swelling after long runs, jumping exercises or climbing stairs.  The CI reported that severity had increased over the previous 2 years.

At the VA C&P exam performed a month after separation, the CI reported that his bilateral knee pain was present for 3 years; and that the condition was not due to injury but developed gradually over time.  He noted that pain occurred 3 times per week and lasted 2 hours.  Physical activity caused the pain, while rest and medication alleviated it.  Examination showed obesity and a normal gait without use of assistive devices.  There was no tenderness or swelling of either knee.  Repetitive motion did not cause additional limitation.  The ROM evaluations in evidence are summarized in the chart below.

Knee ROM
(Degrees)	MEB ~ 6 Mos. Pre-Sep	VA C&P ~ 1 Mo. Post-Sep	
	Left	Right	Left	Right	
Flexion (140 Normal)	130	130	130	130	
Extension (0 Normal)	0	0	0	0	
Comment	--	Mild tenderness	Painful motion at end range	
§4.71a Rating	0%	0%	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The Board first considered if either knee condition, having been de-coupled from the combined PEB adjudication, remained unfitting as established above.  The Board determined that, based on the above evidence, there was a questionable basis for arguing that either knee was reasonably justified as separately unfitting.  The well-established principle for fitness determinations is that they are performance-based.  The Board consensus could not find evidence in the commander’s statement or elsewhere in the STR that documented any significant interference of bilateral knee degenerative arthritis with the performance of duties at the time of separation, nor were any physical findings documented by the MEB or VA examiners which would logically be associated with significant disability.  After due deliberation, the Board consensus determined that the evidence does not support a conclusion that the functional impairment from bilateral knee degenerative arthritis was integral to the CI’s inability to perform his MOS; and accordingly cannot recommend a separate rating for it.

Degenerative Arthritis, Right First Metatarsophalangeal Joint Condition.  The CI developed a painful protrusion at the base of his right great toe while deployed in 2004.  He sought evaluation due to worsening of the pain and an increase in size of the protrusion, and was diagnosed with degenerative disease of the first MTP joint.  X-rays showed degenerative changes of the first MTP joint and an exostosis (bony outgrowth).  The commander’s statement on 5 December 2005 (5 months prior to separation) implicated the neck and shoulder conditions as impediments to duty, but did not mention the right great toe.  At a podiatry evaluation on 14 December 2005 the CI complained of increased pain of the right great toe with running, jumping, marching and kneeling.  The use of shoe inserts was partially helpful, and pain was lessened with use of tennis shoes in place of boots.  Exam showed tenderness of the right great toe at the dorsal aspect of the MTP joint, and pain with dorsiflexion and plantar flexion.  A prominence was present at the dorsal aspect of the first metatarsal head (near the MTP joint).  Dorsiflexion was limited.  Stance was noted to be antalgic in order to off-weight the first MTP joint.  The examiner opined that future surgical intervention could be required if conservative treatment failed.
At the VA C&P exam a month after separation noted that the feet showed no signs of abnormal weight bearing.  Gait was normal and he did “not have any limitation with standing and walking.”  There was tenderness of the right foot, but the location on the foot was not specified.  X-rays of the right foot were normal.

The Board first considered if the right first MTP DJD condition, having been de-coupled from the combined PEB adjudication, remained unfitting as established above.  Board members determined that, based on the above evidence, there was a questionable basis for arguing that the MTP arthritis condition was reasonably justified as separately unfitting.  The well-established principle for fitness determinations is that they are performance-based.  The Board could not find evidence in the commander’s statement or elsewhere in the STR that documented any significant interference of right first MTP arthritis with the performance of duties at the time of separation, nor were physical findings logically associated with significant disability.  After due deliberation, the Board determined that the evidence does not support a conclusion that the functional impairment from right first metatarsophalangeal joint arthritis was integral to the CI’s inability to perform his MOS; and, accordingly cannot recommend a separate rating for it.

Right Shoulder Condition.  The right hand dominant CI first presented for right shoulder pain after performing heavy lifting in 2003.  His next evaluation for shoulder pain was in July 2005 (10 months prior to separation) when he complained of a 2-month history of right shoulder pain with lifting above shoulder height.  The CI reported that there was “no clear traumatic event” that precipitated the problem.  Examination showed “full active range of motion” of the right shoulder with mild tenderness posteriorly and no sign of rotator cuff impingement.  The MEB separation examiner (6 months prior to separation) noted the right shoulder to be tender and display decreased ROM.  At the MEB orthopedic addendum 6 months prior to separation the CI reported that shoulder pain was present for the previous 3 years.  He experienced ongoing difficulty carrying heavy objects or doing frequent work overhead.  A profile restriction resulted in some improvement.  Examination showed some tenderness and a mildly positive impingement test (suggesting rotator cuff tendon impingement and pain).  The diagnostic assessment was mild right shoulder impingement.  Shoulder X-rays were normal.

At the VA C&P exam a month after separation the CI stated the right shoulder pain was present for 5 years and was the result of injury incurred during physical training.  Pain was present 5 days per week and lasted 2 hours.  He experienced impairment in performing overhead work.  Examination showed painful motion at the extremes of ROM.  After repetitive use, there was additional limitation due to pain, but measurements after repetition were not provided.  Shoulder X-rays were normal.

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Shoulder ROM
(Degrees)	MEB ~ 3 Mos. Pre-Sep	VA C&P ~ 1 Mo. Post-Sep	
Flexion (180 Normal)	“Full range of motion”	160	
Abduction (180)	“	170	
Comments	+Painful motion	+Painful motion, tenderness, crepitus	
§4.71a Rating	10% (PEB 0%)	10% (VA 10%)	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under an analogous 5003 code, while the VA rated the condition at 10% using the 5201 code (limitation of arm motion).  The VASRD §4.71a threshold for compensable ROM impairment is “at shoulder level” (90 degrees from the side), but the ROM in evidence demonstrated motion above this level.  Although limitation of motion was non-compensable, the Board debated if there was sufficient evidence of functional loss (§4.40) or painful motion (§4.59) to support a 10% rating.  Board members agreed that examination findings did support a 10% rating using these pathways.  There was no evidence of recurrent dislocations to justify a rating under the 5202 code (other impairment of humerus with recurrent dislocation).  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 chronic right shoulder pain condition, coded 5099-5003.

Given the rating recommendations as elaborated above, the Board concluded that the CI derives no benefit from changing the PEB’s adjudication of the bilateral knee, right first metatarsophalangeal joint and shoulder pain conditions.  Therefore, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board consensus concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral knees and right first metatarsophalangeal joint degenerative arthritis condition, and chronic right shoulder pain condition.

Contended Mental Health Condition.  The CI self-referred for MH treatment in June 2005 with complaints of sleeping difficulty, startle response and nightmares after his 1-year deployment to Iraq that ended in January 2005.  He reported combat exposure, and experienced war-related nightmares every night since his return.  The assigned Axis I diagnosis was adjustment disorder and treatment with psychotropic medication was planned.  On the MEB separation DD Form 2807 on 24 October 2005 (6 months prior to separation) the CI checked “No” for “Nervous trouble of any sort” and for “Depression or excessive worry.”  However, he wrote that he had a diagnosis of PTSD.  The examiner listed a diagnosis of PTSD on the DD Form 2808 and assigned an S1 profile.  At the MEB psychiatry addendum exam on 30 November 2005 (5 months prior to separation) the CI reported that he stopped taking psychotropic medications after a short time because of sedating side effects, and that his mood substantially improved after his unit deployed earlier in the month.  The only bad memories he now had from his previous deployment were related to lack of command recognition for his hard work.  He reported a good home life and marriage, and felt that he was doing well emotionally.  He endorsed bad dreams about Iraq 5-6 times per month.  He enjoyed multiple activities and was taking some college courses.  The mental status exam was normal.  The Axis I diagnosis was depressive disorder NOS, resolved.  An assigned Global Assessment of Functioning (GAF) was 75, connoting transient symptoms and no more than slight impairment.  Retention standards were considered to be met.  The commander’s statement did not mention any mental health condition as an impediment to performance of duty.  The NARSUM examiner noted the diagnosis of depression rendered by the MEB psychiatric addendum.

At a VA C&P exam on 7 June 2006 (3 weeks after separation) the CI complained of sleep problems, distressing dreams, irritability, avoidance and depression.  He denied thoughts of harm, or emergency care or hospitalization for psychiatric reasons.  The Axis I diagnosis was anxiety disorder NOS, and an assigned GAF was 60 (moderate symptoms or impairment).

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military Disability Evaluation System.  The MEB separation exam listed a diagnosis of PTSD, but the psychiatric addendum, MEB and PEB listed a diagnosis of depression.  Therefore, a MH diagnosis was changed to the applicant’s possible disadvantage during that process.  This applicant therefore did appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board noted that the MEB separation examiner did not list any symptoms of PTSD or examine the criteria necessary for a diagnosis of PTSD.  The subsequent MEB psychiatric evaluation provided a preponderance of evidence that the diagnosis of depression was correct.

The Board’s main charge is to assess the fairness of the PEB’s determination that depressive disorder was 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 depressive disorder condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  It was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that depressive disorder, or any mental condition regardless of diagnosis, 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 depressive disorder condition and so no additional disability rating is recommended.

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 chronic cervical strain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the degenerative arthritis, bilateral knees and right first metatarsophalangeal joints condition, and the chronic right shoulder pain condition, the Board by a majority vote recommends no change in the PEB adjudication.  In the matter of the contended depressive disorder condition, the Board unanimously recommends no change from the PEB 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140713, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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 XXXXXXXXXXXXXXXXXX AR20150006632 (PD201400808)

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						
						         
CF: 
(  ) DoD PDBR
(  ) DVA