RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00873
BRANCH OF SERVICE:  Army	BOARD DATE:  20150319
Separation Date:  20090427

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Tracked Vehicle Mechanic) medically separated for a left knee condition and Bipolar II disorder.  The two conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty; however, his profile indicated he could take a modified physical training test.  He was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB).  The knee and mental health conditions, characterized as “chronic left knee pain” and “bipolar II disorder,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded six other conditions.  The Informal PEB adjudicated “chronic left knee pain,” and “bipolar II disorder” as unfitting, rated 10% each, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  Five of the six remaining conditions were determined to be not unfitting, with the sixth, obesity, adjudicated as not constituting a disability and not ratable IAW DoDI 1332.38, E5.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 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/Naval 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 confined to review of medical records and all available evidence for application of the 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:

 IPEB – Dated 20090120	VA - (3 & 4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Knee Pain	5099-5003	10%	Patellofemoral Syndrome, Left Knee	5014-5260	10%	20090810	
Bipolar II Disorder	9432	10%	Bipolar II Disorder, with Depression	9432	50%*	20090730	
Other x6 (Not in Scope)	Other x 3	
Combined:  20%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20091020 (most proximate to date of separation [DOS])
*Decision Review Officer Decision of 20100412 increased rating to 70%, combined to 90%, day after separation.

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VASRD standards, based on ratable severity at the time of separation.

Chronic Left Knee Pain Condition.  The CI injured his left knee when a fellow service member was carrying him during a fireman’s carry and the fellow service member tripped and fell and the patient struck his left knee in August 2007.  He was evaluated by Primary Care with left knee constant pain and numbness.  There were physical exam findings of tenderness, swelling, crepitus and tenderness to palpation (TTP).  A left knee X-ray performed at this visit was normal.  A left knee MRI was essentially normal.  The physical therapist (PT) noted that the CI reported left knee give away, numbness popping and swelling at the end of the day with pain rated at 5/10 at best and 9/10 at worst.  There were physical exam findings of range-of-motion (ROM) flexion limited to 0-85 degrees, TTP of the inferior/lateral patellar region and entire peripatellar; patellar grind, ballottement; guarding and pain.  The PT further documented that the CI was unable to single limb stand on left leg, and unable to squat to 30 degrees.  The Rheumatologist examined the CI and opined that this injury was not a rheumatologic condition.  The left knee MRI was normal as was the left knee arthrogram.  The Orthopedist noted that the left knee pain was unchanged.  There were physical exam findings of medial and lateral joint line tenderness.  The MEB narrative summary (NARSUM) exam approximately 5 months prior to separation documented that the CI reported sharp pain that progressively throbbed with exacerbation; flare-ups daily which lasted all day and was exacerbated with prolonged standing or lifting.  The CI rated the pain at a baseline 5/10 and exacerbated 7/10.  The ROM flexion and extension was decreased with exacerbation.  The MEB NARSUM physical exam findings are summarized in the chart below.  The pain specialist documented that there was anteromedial TTP which reproduced the CI’s pain and radiation up the thigh and down the leg.  The specialist recommended a Lidoderm patch for the left knee pain.  The VA Compensation and Pension (C&P) exam approximately 3 months after separation documented constant pain in the anterior patella worse with physical activity, going up-steps and any prolonged sitting or squatting.  The VA C&P physical exam findings are summarized in the chart below.

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

Left Knee ROM (Degrees)	MEB ~6 Mo. Pre-Sep	VA C&P ~4 Mo. Post-Sep	
Flexion (140 Normal)	131	125	
Extension (0 Normal)	4	0	
Comment	Normal gait; Pos. painful motion, TTP, & crepitus; Normal strength & reflexes; No instability	Pos. painful motion; Normal reflexes & strength; No instability	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic left knee pain condition as 5099 analogous to 5003 arthritis, degenerative (hypertrophic or osteoarthritis) and rated at 10%.  The VA coded the patellofemoral syndrome, left knee condition as 5014 (Osteomalacia) with 5260 (Leg, limitation of flexion) of and rated at 10%.  All exams proximate to separation documented painful motion of the left knee.  VASRD §4.71a specifies for 5003 that “satisfactory evidence of painful motion” constitutes limitation of motion and specifies application of a 10% rating “for each such major joint or group of minor joints affected by limitation of motion” and VASRD §4.59 painful motion provides an alternate justification for a 10% rating.  The left knee condition could not be reasonably rated higher than 10% using any exam proximate to separation or any alternate rating schema.  VASRD codes 5257, 5258 and 5259 require knee instability, meniscal pathology or symptomatic meniscal removal, none of which were present in this case.  The Board considered coding as 5260 and 5262; however, no other coding schemas would result in a higher rating.  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 left knee pain condition.

Bipolar II Disorder Condition:  The CI was followed by multiple providers in the Restoration and Resilience clinic since April 2008 for diagnoses of adjustment disorder and depression.  The CI had a Psychosocial History and Assessment performed on 23 July 2008 which was completed by the CI and reviewed by a Psychiatrist.  The CI noted his problems as depression, anxiety and stress.  The commander’s statement noted that the CI was given minimal duties while assigned to the Warrior’s Transition Unit and his squad leader had to call the CI daily after he failed to make formation after falling into a self-conversation mode.  The Psychiatric Addendum to the MEB NARSUM exam completed 4 months prior to separation documented that the CI had undergone medication trials of Seroquel for insomnia, anxiety and auditory hallucinations; however, this medication made him more anxious and feeling numb in the left side of his body; and the Welbutrin made him angry.  At the time of this exam, his medication regimen was Paxil, Elavil and Klonopin which had moderate results in treating the anxiety and depressed mood.  The Psychiatrist noted that the CI’s mood was “pretty good,” sleep was limited to 4 hours per night (he was up for 72 hours on the weekend); he ate once daily; there was short-term memory loss; his squad leader called him daily because he forgot about work; he fixated on counting items around him; and his libido was “little too high.”  He further reported frequent anxiety episodes, irritability with people in public and crowded spaces, violent; lack of intimacy; outbursts with threats to harm another and admitted to a history of being a pyromaniac.  The mental status exam (MSE) demonstrated mood “pretty good”; a restricted range non-congruent affect with poor insight but good judgment.  The CI noted a progressive impairment in short term memory.  The examiner diagnosed Bipolar II disorder that manifested manic symptoms of decreased sleep with increased energy; irritability; racing thoughts; distractibility; reckless behavior for 4 days and less than 7 days consecutively with significant social and occupational impairment.  The Global Assessment of Functioning (GAF) was 65 (some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships).  The Psychiatrist documented that the CI had violent outbursts at home over little things, and visual hallucinations.  The examiner diagnosed bipolar disorder based on an increase in irritability and explosive anger after addition of Elavil to the Paxil accompanied by racing thoughts.  The Psychiatrist noted that he was sleeping better and had more energy and motivation, felt calmer without agitation or mood swings.  The VA C&P exam approximately 3 months after separation documented that the CI was still married but was reluctant to go out because he became anxious in crowded places.  He was gainfully employed in a new job.  The examiner made the following statements:

“[The CI} and his wife socialize with friends in their neighborhood.  He keeps in touch with his brothers and sisters by telephone.  He keeps in touch with some of his friends from high school.  The veteran spends his leisure time working on cars.  He enjoys going bowling and shooting pool with friends, however, he is often reluctant to go out because he becomes anxious in crowded places.”

The MSE showed a constricted affect, bland mood, difficulty comprehending what he was reading, difficulty following a conversation and failed to remember what people said to him, judgment and insight were good as he understood that he had a problem and he understood the outcome of his behavior; mild memory impairment.  He had difficulty with sleep, concrete reasoning and would have panic attacks when he was in crowded places.  He was easily angered and when he lost his temper, he would throw things.  He had a moderate problem with performing activities of daily living, slight with grooming, slight with bathing, moderate in engaging in sports, severe with travelling, driving and moderate with other activities.  He was quickly angered when driving in traffic.  At this evaluation, the CI underwent neuropsychological testing with a Beck Depression Inventory which showed severe symptoms of depression and a Million Clinical Multiaxial Inventory III which suggested exaggeration of symptoms and problems as a plea for help; clinically significant symptoms of anxiety and depression, all results were consistent with Bipolar disorder.  The examiner noted that the CI continued to experience depressed mood with irritability and angry outbursts that affected his interpersonal relationships, a low tolerance for frustration and a quick anger; anxiety in crowds, avoidance of social gatherings, insomnia, and panic attacks.  The examiner diagnosed Axis I- Bipolar disorder, depressed and assigned a GAF of 55 (moderate difficulty in social, occupational, or school functioning in social, occupational, or school functioning).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the Bipolar II Disorder as 9432 and rated at 10%.  The VA coded the Bipolar II Disorder, with Depression with Depression as 9432 and rated as 50%.  A Decision Review Officer Decision of 12 April 2010 increased the rating to 70%, effective 28 April 2009.  There was no evidence present for review to support application of VASRD §4.129.  After review of the evidence, Board members agree that the CI’s psychiatric symptoms exceeded the 10% rating criteria (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) as applied by the PEB.  Additionally, at the time of separation, they did not rise to the 70% (occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood level) and therefore, Board deliberations settled on 30% vs 50% rating recommendation.  The Psychiatric NARSUM and C&P exam both documented sleep impairment, anxiety and impaired short term memory, all symptoms related to the 30% disability level.  The evidence supports that the CI was employed as a cable installer, had an intact family life, he socialized with friends, and had good judgment and insight, also consistent with the 30% rating level.  However, the record also documented a restricted affect, impairment of short-term memory, and some disturbance of mood, which are symptoms consistent with the 50% rating level.  The Board also considered that the CI was employed as a cable installer, a job that required interaction with coworkers and customers alike, and he had a social life with his wife and friends; both most consistent with a 30% rating level.  The documented GAF’s of 65 & 55 were also consistent with either disability rating being considered by the Board.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), a majority of the Board recommends a disability rating of 30% for the Bipolar II Disorder condition.

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 left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the Bipolar II disorder condition, the Board by a majority vote recommends a disability rating of 30% coded 9432 IAW VASRD §4.130.  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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Left Knee	5099-5003	10%	
Bipolar II Disorder	9432	30%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140218, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXX, AR20150013335 (PD201400873)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

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 permanent disability retirement 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 date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	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:

Encl						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA