RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01454
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Infantryman, medically separated for “chronic right knee pain status post right patellar tendon repair” and “anxiety disorder, not otherwise specified” as unfitting, rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  “(30%) from Army…(10%) VA…40% total.”  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 - 20071107	VARD - 20080206	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee s/p Patellar Tendon Repair	5099-5003	10%	Residuals s/p Patellar Tendon Repair, Right Knee	5260	10%	20071211	
Anxiety Disorder, Not Otherwise Specified (NOS)	9413	10%	Anxiety Disorder	9413	30%	20071211	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Right Knee Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent right knee tendon repair in March 2005, 2 days after he injured his knee playing football.  Following surgery, he was able to participate in most activities; however, he continued to experience weakness in the right lower extremity and was not able to function at full capacity.  Despite treatment, the right knee condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  The MEB forwarded “chronic right knee pain” for PEB adjudication.

At the MEB NARSUM examination on 1 August 2007 (6 months before separation), the CI reported right knee pain that occurred on most days at an intensity of 5-6/10, and increased to 7-8/10 during activities involving heavy lifting, standing for greater than 1 hour, or running and jumping.  On examination, he was noted to have mild tenderness without swelling and a patellar grind that caused moderate discomfort.  The examiner recorded absence of ligamentous laxity or meniscal irritation.  Range of motion (ROM) measurements documented flexion to an average of 93 degrees (normal 140) on three trials and normal extension.  Painful motion was present throughout ROM maneuvers.

At the VA Compensation and Pension (C&P) examination on 11 December 2007 (2 months before separation), the CI reported right knee pain with prolonged standing, walking, and running, and occasional swelling.  The right knee occasionally gave way but he did not use an assistive device or brace.  On examination, ROM was flexion to 110 degrees, and extension to 0 degrees, with discomfort noted during testing.  There was no evidence of swelling, effusion, instability, locking, or loss of function.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 10% coded 5099-5003 (degenerative arthritis) citing pain rated as slight/frequent IAW with the US Army Physical Disability Agency (USAPDA) pain policy.  The VA also assigned a 10% rating using the 5260 code (leg, limitation of flexion) based on the VA C&P examination 2 months before separation citing painful motion.  The recorded limitation of motion did not support a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) as adjudicated by the PEB.  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259) to support a rating under the respective codes. There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There was therefore no VASRD §4.71a route to a rating higher than the 10% adjudicated by the PEB under any applicable code, and no grounds for additional rating based on the presence of instability.  As discussed below, the Board recommended that the CI be placed on a constructive Temporary Disability Retirement List (TDRL) for his anxiety disorder NOS, and 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 knee condition at TDRL placement or at permanent separation.

Anxiety Disorder NOS.  According to the MEB psychiatric addendum dated 11 October 2007 (4 months before separation), the CI first presented to mental health (MH) for insomnia and depression after returning from Iraq in 2005 and was prescribed medication.  Treatment records for these conditions were silent thereafter.  At the MEB evaluation, the CI stated that he intermittently took his antidepressant and sleep medications and only averaged 3-4 hours of sleep every night.  He reported recurrent nightmares and distressing recollections of events experienced during his deployment, avoidance behaviors, exaggerated startled response, hypervigilance, problems with concentration and memory, and loss of interest in socializing.  The psychiatrist indicated that his condition had slightly improved with treatment but was not yet stable.  His “short-term prognosis was guarded,” however, it was opined that his “mild or transient” symptoms would decrease work efficiency and ability to perform occupational tasks “during periods of significant stress” and would benefit from continuous medication.  The mental status examination (MSE) documented “exaggerated startle response and hypervigilance, but no other psychomotor or speech abnormalities.”  Otherwise, the MSE was unremarkable.  The diagnosis of anxiety disorder NOS was recorded, with noted marked impairment for military duty.  

At the VA Compensation and Pension (C&P) mental examination on 11 December 2007 (2 months before separation), the CI reported that he had occasional panic attacks, chronic sleep impairment, and infrequent nightmares.  The examiner opined that his symptoms were mild in intensity and referenced information from the CI’s commander to the MEB indicating that his psychiatric disorder did not seem to result in significant functional impairment at work.  The MSE was unremarkable with the exception of anxious mood.  There was no history of suicidal or homicidal ideation.  The examiner rendered a diagnosis of anxiety disorder NOS and recorded a Global Assessment of Functioning (GAF) score of 68 (mild).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition at 10%, coded 9413, citing slight social and industrial impairment.  The VA granted a 30% rating under the same code based on the VA C&P examination 2 months before separation, citing sleep impairment, distressing nightmares and panic attacks.  In accordance with VASRD §4.129, when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the CI’s release from active military service, the rating agency shall assign an evaluation of not less than 50% and schedule an examination within the 6-month period following the Veteran’s discharge to determine whether a change in evaluation is warranted. The Board first considered whether the provisions of VASRD §4.129 (mental disorders due to traumatic stress) were applicable in this case.  The PEB documented that the anxiety disorder was related to conflict in Iraq, therefore, all Board members agreed that the provisions of §4.129 criteria applied.  

The Board considered the §4.130 rating at the time of constructive TDRL placement.  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 the constructive TDRL period documented no evidence to support impairment in judgment or thinking.  There were no psychiatric hospitalizations, no recorded visits to the emergency room (ER) for MH issues, and no evidence of suicidal or homicidal ideation. The CI reported occasional panic attacks and chronic sleep impairment; however, the commander’s statement did not document any impairment in focusing or mood symptoms.  The psychiatry addendum noted he was hypervigilant and had a startled response, but all other aspects of the MSE were normal.  The Board concluded there was insufficient reasonable doubt (IAW VASRD §4.3) for recommending a rating higher than 50% at 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 30% rating is for “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).”  The VA C&P and MEB psychiatry addendum were the only MH records available for consideration.  Even though the CI’s S4 profile required him to be near a medical facility and restricted access to weapons, the addendum only documented hypervigilance (suspiciousness) and that the CI’s condition was consistent with 10% rating criteria indicating “mild or transient symptoms which decrease work efficiency and ability to perform occupational task only during times of significant stress, or symptoms controlled by continuous medication.”  The VA examination documented panic attacks 1-2 times a month and while both treatment records indicated chronic sleep impairment, the CI’s sleep had improved by the VA evaluation.  The CI reported that he had difficulty remembering locations on several occasions, but the commander indicated he was not aware of the CI being any place other than his proper duty location.  The commander’s statement provided no further indications of significant negative impact on duty performance secondary to any MH condition.  The service and VA examinations consistently documented absence of suicidal ideation or homicidal ideation, no impairment in judgment or thinking, or visits to the ER.  The Board considered the reported panic attacks, lack of extensive medical treatment, chronic sleep impairment that had improved overtime, and suspiciousness noted at the MEB psychiatric evaluation.  Board members agreed that, at the time of permanent separation, the CI’s condition did not approach the 30% disability level.  After due deliberation, considering of all the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% at TDRL placement and a permanent 10% disability rating for the anxiety disorder NOS condition, coded 9413.

BOARD FINDINGS:  In the matter of the chronic right knee pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication at TDRL placement and at permanent separation.  In the matter of the anxiety disorder NOS condition, the Board recommends a disability rating of 50%, coded 9413, IAW VASRD §4.129 and §4.130, for the TDRL interval and a permanent disability rating of 10%, coded 9413, IAW VASRD §4.130.  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 his prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Chronic Right Knee Pain	5099-5003	10%	10%	
Anxiety Disorder Not Otherwise Specified	9413	50%	10%	
COMBINED	60%	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131217, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160011460 (PD201401454)

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