RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00870
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20070124

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Infantryman, medically separated for “major depression disorder” and “chronic right ankle pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI submitted a lengthy contention that essentially requested the Board consider a diagnosis of Posttraumatic Stress Disorder (PTSD) as his unfit mental health (MH) disability.  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 - 20061215	VARD - 20070307	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Ankle Pain	5271	10%	Right Ankle Sprain	5271	10%	20061116	
Major Depression Disorder	9434	10%	PTSD w/Depression	9411	30%	20061025	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Major Depression Disorder (MDD).  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s mental health (MH) condition began during deployment to Iraq in 2003-2004 after traumatic combat exposures.  He received a Purple Heart and a Combat Infantryman Badge.  The CI self-referred to Behavioral Health (BH) due to severe anxiety and depression symptoms that after deployment to Iraq.  He was also deployed in 2003-2004.   In addition to the stress of the Iraqi deployment, his father died from cancer just prior to 9/11 and his brother died in a car accident in October 2005.  He initially described weekly nightmares related to his deployment to Iraq, poor sleep, panic attacks, low energy, loss of pleasure, and passive thoughts of suicide.  He also reported irritability and extreme feelings of guilt.  He was treated with anti-depression medication that was later augmented with another anti-depression medication to target residual depression symptoms.  He also participated in group and individual therapy.  The CI reported that in 1996 he suffered significant depressive symptoms after the loss of a 6-year relationship.  He consulted his family practitioner and was treated with an anti-depression medication.  He denied evaluation by a psychologist or psychiatrist prior to enlistment, denied inpatient psychiatric hospitalization and denied a history of self-injurious behavior.  Despite treatment, the major depression disorder condition could not be adequately rehabilitated to meet the requirements of the CI’s military specialty and the CI was referred for MEB. The MEB forwarded “major depressive disorder” for PEB adjudication.  

The MEB NARSUM examination on 13 June 2006, 7 months prior to separation, noted complaints of moderate depressive symptoms, markedly improved panic attacks, and rare thoughts of suicide.  He noted some PTSD symptoms and reported a 30% to 40% improvement in his symptoms. The CI had multiple medical problems and had recently learned of his mother and brother’s diagnosis of cancer.  He worked with his unit but did not participate in any field training exercises since his return from Iraq due to the severity of his symptoms.  He was currently on light duty.  Family history was significant for depression.  He was happily married for 4 years and had a good relationship with his wife.  He had some financial difficulties.  Mental status examination (MSE) noted a moderately constricted affect and a denial.  A diagnosis of MDD, moderate to severe, precipitated by duty as an Infantryman in Iraq with a Global Assessment Of Functioning (GAF) score of 60 (moderate bordering mild symptoms, impairment).  He would likely require continued intensive outpatient treatment for depression.

At the 25 October 2006 VA Compensation and Pension (C&P) evaluation, performed 3 months before separation, the CI reported occasional disruptions in focus and concentration but no marked impairment and mild sleep difficulty.  He has two nightmares per week with flashbacks less frequently, panic attacks in social situations, some decline in enjoyment of activities, and emotional attachment from others, causing marital problems.  MSE showed a mildly anxious mood, mildly constricted affect and no suicidal or homicidal ideation.  Diagnoses of PTSD and depressive disorder NOS were rendered with a GAF score of 60 (moderate bordering on mild impairment.)

The Psychiatric Addendum, dated 8 November 2006, 2 months prior to separation, noted the CI’s current treatment included individual psychotherapy, two anti-depression medications and one anxiolytic medication weekly for the past year.  Current symptoms included sleep difficulty, anxiety with panic-like attacks that worsened without medication.  He reported low grade intermittent depression due to recent losses, including the death of his mother 2 weeks previously.  He was receiving an anxiolytic due to restless legs.  He worked 20 hours per week and per supervisor report, his work performance was excellent.  Diagnosis was MDD in partial remission with mild social and industrial impairment. Psychiatry outpatient note, dated 27 August 2007, noted the CI reported he was not in love with his wife.  Stressors included housing, primary support, social environment and financial.  He reported no prior history of psychiatric problems and no family history of psychiatric problems.

At the 7 September 2007 VA Compensation and Pension (C&P) evaluation, performed 8 months after separation, the CI reported marital difficulties due to his anxiety and irritability.  He had sleep difficulties, hypervigilance, some homicidal thoughts and difficulty driving in heavy traffic.  He was planning to see a counselor in one week and had recently sought medication management with a psychiatrist.  The CI was still working at a car dealership and he and his supervisor had a good work relationship.  He presented well socially and had no unusual behaviors, was not guarded nor defensive, expressed himself well, and had no cognitive difficulties.  MSE showed underlying irritability and anxiety, mild psychomotor agitation, and intact memory.  A diagnosis of PTSD was rendered with a GAF score of 55 (moderate symptoms, impairment.)  The examiner noted he had limited social support and marital difficulties.  

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the MDD condition 10%, coded 9434 (MDD), citing mild social and industrial capabilities.  The VA rated PTSD with depression condition 30%, coded 9411 (PTSD), based on the VA C&P examination 3 months before separation.  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.  Board members agreed that the provisions of VASRD §4.129 were applicable in this case due to the traumatic combat exposures.  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 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% were 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 was the 7 September 2007 VA C&P examination. 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.”  The CI reported continued anxiety, sleep difficulties, irritability and marital difficulties and had contacted MH to resume treatment in August 2007.  He was experiencing a number of personal stressors, including marital difficulties and social support but was working at a car dealership and had a good relationship with his supervisor.   Members agreed he met criteria for a 10% disability rating.  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 MDD condition.

Chronic Right Ankle Pain.  According to service treatment records and the MEB NARSUM, the CI’s right ankle condition began in June 2005 while doing physical training with his unit in Iraq.  He was evaluated, given a wrap and non-steroidal anti-inflammatory drugs.  He was seen for follow-up for the right ankle pain with symptoms of burning pain and a dull pain with walking.  Physical examination showed minor tenderness to palpation along the ankle, decreased range of motion (ROM) with pain and pain with voluntary motion.  The CI was referred to physical therapy (PT) for evaluation and treatment of the right ankle.  The right ankle magnetic resonance imaging (MRI) demonstrated evidence of a bone bruise of the right ankle with effusion.  

At the time of the orthopedic appointment on 3 March 2006, the examiner noted that the CI had undergone 9 weeks of PT without improvement with physical examination findings of effusion, weakness and instability, pain with dorsiflexion, and difficulty during running and rucking.  A repeat right ankle MRI demonstrated decreased marrow edema in the talus and a sub osteochondral lesion; however, there was no change in the lateral stabilizing ligament chronic injury.  At a follow up orthopedic appointment on 24 April 2006, the examiner noted that the CI reported ankle joint pain, swelling, stiffness, and a snapping, grating, popping, clicking sensation in the right ankle.  There were physical examination findings of right ankle soft tissue swelling laterally, ankle joint pain with movement, and abnormal gait and stance. 

At the time of the orthopedic appointment on 19 July 2006, the CI complained of pain, instability and swelling.  The examiner note ROM measurements of dorsiflexion of 10 degrees (normal 20) and plantar flexion of 25 degrees (normal 45).  There was tenderness to palpation and negative anterior drawer and negative talar tilt test.  
There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty. The MEB forwarded “ankle pain” for PEB adjudication.  The MEB NARSUM on 14 August 2006, 5 months prior to separation documented no improvement in the CI’s chronic right ankle pain.  PT performed the ROM measurements for the MEB examination which showed a dorsiflexion of 8 degrees and a plantar flexion of 20 degrees.  

The 16 November 2006 VA C&P examination, performed 2 months prior to separation documented pain with walking and activities such as driving when he would go from the gas pedal to the brake which caused shooting pains around the lateral ankle.  He had chronic ankle stiffness and sensed instability when he walked on uneven surfaces.  ROM measurements showed a dorsiflexion of 8 degrees and a plantar flexion of 35 degrees.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic right ankle pain condition at 10%, coded 5271 (limitation of ankle motion), citing consistent with “moderate.”  The VA used the same coding and rating for the right ankle condition.  All examinations proximate to separation documented limited dorsiflexion and plantar flexion ROM’s and motion limited due to pain.  The Board considered the criteria for “moderate” disability connotes significant or near constant pain with functional limitations on some occupational tasks and domestic chores; but little interference with routine activities, and no interference with essential activities of daily living.  The Board agreed that the CI met the subjective “moderate” disability criteria.  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 right ankle pain condition at TDRL placement.

The Board then determined the rating recommendation for the right ankle condition at TDRL removal assigned at the 6 months TDRL interval.  The Board determined the most proximate source of comprehensive evidence, to evaluation the CI at TDLR removal, was the MEB NARSUM examination performed 5 months prior to separation. There were no subsequent examinations for Board consideration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a TDRL placement rating of 10% and permanent disability rating after removal from TDRL of 10% for the right ankle pain condition.

BOARD FINDINGS:  In the matter of the MDD condition, the Board unanimously recommends a disability rating of 50%, coded 9432 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 chronic right ankle pain condition and IAW VASRD §4.71a, the Board unanimously recommends a disability rating of 10%, coded 5271 IAW VASRD §4.71 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 §4.71.  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	
Major Depression Disorder	9432	50%	10%	
Chronic Right Ankle Pain 	5271	10%	10%	
COMBINED	50%	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140214, w/attachments
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

08 DEC 2016

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20160018205 (PD2014-00870)

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 
50% 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 re-characterization 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 re-characterization of the individual’s separation.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will provide 50% 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:

Enclosures

CF: 
(  ) DoD PDBR
(  ) DVA