RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01804
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060821

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Administrative Specialist, medically separated for “posttraumatic stress disorder” and “right shoulder pain,” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION:  The CI request consideration of all 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 - 20060502	VARD - 20070907	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Posttraumatic Stress Disorder	9411	10%	Posttraumatic Stress Disorder w/Depression	9411	50%	20070313	
Major Depressive Disorder	9434	EPTS					
Right Shoulder Pain	5099-5003	10%	Status Post Separation, Right Shoulder (non-dominant)	5299-5203	10%	20070313	
Bilateral Knee Pain	Not Unfitting	Bilateral Knee Condition	NSC	20070313	
Other x 0 (Not in Scope)	Other x 1		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Posttraumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD).  According to the service treatment records (STR) and the mental health (MH) Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI received treatment for MDD in 1998 while not active duty.  In December 2003, the CI was activated and deployed to Iraq in February 2004, and while deployed he reportedly was exposed to two specific traumatic events, and developed symptoms consistent with PTSD, with return of his depressive symptoms.  The CI reported symptoms of combat related nightmares and intrusive memories, sleep disturbance, anger, irritability, anxiety and decreased participation in previously enjoyed activities.  He was hospitalized twice in 2005 due to worsening anxiety associated with PTSD.  The first hospitalization was brief and was related to suicidal ideation.  The second hospitalization occurred 13-14 months prior to separation, and was not the result of suicidal thoughts.

At the MH NARSUM dated 18 November 2005, approximately 9 months prior to separation, the CI noted his symptoms of depression and PTSD continued.  He had occasional passive thoughts of self-harm but no intent or plan.  The CI noted that he had been a heavy drinker of alcohol for years and his last drink was in August 2005.  He was referred to ASAP and had been in treatment since August 2005.  The CI also participated in weekly PTSD groups and took medication for anxiety, depression, sleep and PTSD symptoms.  The mental status examination (MSE) was unremarkable with the exception of anxious affect.  The examiner noted that despite treatment, the CI had continued to demonstrate significant psychiatric symptoms, and that he suffered from major depressive disorder, recurrent, and PTSD.  A Global Assessment of Functioning (GAF) score of 55-60 for moderate symptoms and or impairment was recorded.

The MH NARSUM addendum was conducted 4 months prior to separation.  It was noted that since the 2005 NARSUM, the CI self-referred to additional substance abuse treatment due to prescription medication dependence.  He had continued his psychotropic medication and therapy.  He reported to work daily.  MSE noted a down and irritable mood, and mildly irritable affect.  He was absent of suicidal ideation.  The examiner noted there were no major changes since the MEB NARSUM.

The VA Compensation and Pension (C&P) mental examination was accomplished approximately 7 months after separation.  It was noted that the CI was an inpatient at the time of the examination due to suicidal ideation.  The CI noted that he had taken a leave from his job with the State, although he had only worked for 1 day.  He reported that he had been too nervous and shaky on the job so he didn’t go back.  The examiner stated that “until recently, he was always gainfully employed.  There was no evidence of occupational impairment until the last few months.”  The CI noted that he had abused crack cocaine on a daily basis for the past 6 months, and had not wanted to visit with his 9-year-old son while abusing drugs because he did not want his son to see him.  The CI indicated that his drug use began in high school.  It was noted that the CI was somewhat socially isolative.  MSE noted that he was very guarded, angry and hostile.  He was noted to be distractible during the examination, and there was no evidence of issues with memory or judgment.  He noted that he had been depressed for more than 2 years and had a bad temper.  He denied aggression, or violence and stated that he would typically walk away when angry.  He did not endorse panic attacks but noted he felt anxious if around “too many people.”  The CI also endorsed issues with sleep and reported he was actively suicidal a year ago.  The diagnoses of MDD, PTSD and polysubstance dependence were recorded with a GAF of 50 for serious impairment of functioning.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition of PTSD at 10%, coded 9411, with the notation that the condition had mild impact on his social and industrial capabilities.  The VA granted a 50% disability rating coded 9411, citing §4.130 criteria rating for the 50% disability level.  The PEB indicated that the MDD condition existed prior to service (EPTS) and therefore, did not rate the condition.  The NARSUM noted that the CI’s history of depression was a predisposing factor to the development of PTSD.  The Board considered whether the provisions of VASRD §4.129 (Mental disorders due to traumatic stress) was applicable.  The PEB acknowledged that his conditions was the direct result of armed conflict, therefore, Board members agreed the provisions of §4.129 were applicable in this case.  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 should assign an evaluation of not less than 50% and schedule an examination within the six month period following the veteran’s discharge to determine whether a change in evaluation is warranted.  The Board is therefore obligated to recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  

The Board next considered the §4.130 rating at the time of constructive TDRL placement (6 months after date of separation).  The sole document in evidence during the constructive TDRL period was the C&P examination.  That document demonstrated absence of evidence supporting 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 C&P examination was the only available document for review.  That examination noted that the CI had difficulty with sleep, irritability, anger, and anxiety.  At the time of the examination, the CI was on an inpatient psychiatry unit secondary to suicidal thoughts.  He also was abusing illicit substances and alcohol, and noted that he had voluntarily discontinued work.  Although there was very little evidence of occupational impairment, based on the evidence, his condition clearly would have interfered with occupational functioning, given that he had chronic suicidal ideation.  The C&P examiner noted that the PTSD condition accounted for as much as half of his impairment in social functioning.  The Board was unable to proportion how much of the overall mental disability was attributed to PTSD, MDD or polysubstance abuse.  However, all Board members agreed the constellation of symptoms was best reflected in the 30% disability rating.  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 30% disability for the condition of PTSD.

Right Shoulder Pain Condition.  According to STR and the MEB NARSUM addendum, the CI’s right shoulder pain began at the time of a motor vehicle accident during his Iraqi deployment.  He was treated with medication, physical therapy and duty limitation; however, his pain continued.  In September 2005, the CI underwent right shoulder surgery after he was found to have an old nonunion of the distal clavicle fracture.  Post-operatively, his pain improved somewhat; however, he continued to have pain with reaching and with overhead activities.  Despite treatment, the shoulder could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty, so he was referred for MEB.  

At the MEB examination (recorded on DD Form 2807 and 2808) dated 12 January 2006, the CI reported right shoulder pain with numbness or tingling.  The examiner documented pain on motion with range of motion (ROM) abduction to 120 degrees (normal 180) in the right shoulder.  At the MEB NARSUM addendum examination 10 February 2006 (6 months prior to separation), the CI noted he had pain mostly over the superior aspect of his shoulder radiating down into the deltoid region with most activities especially reaching overhead and behind his back.  The physical examination of the right shoulder noted mild tenderness to palpation over the acromioclavicular joint.  ROM testing recorded forward flexion to 160 degrees (normal 180), and abduction to 150 degrees.

At the VA Compensation and Pension (C&P) examination in March 2007, 7 months after separation, the physical examination of the right shoulder recorded normal neurological and motor examinations.  ROM documented forward flexion of 85/90 degrees with “questionable effort”, noting that the CI was able to achieve higher arm elevation when distracted from the task.  The examiner noted there was painful motion present during the ROM testing.

The Board first considered its rating recommendation. The PEB applied the US Army Physical Disability Agency (USAPDA) pain policy and assigned a 10% rating, coded analogously 5099-5003 (arthritis).  The VA assigned a 10% rating using an analogous 5203 code (clavicle or scapula, impairment of) for painful motion IAW 4.59.  The Board agreed that a 10% rating, but no higher, was justified based upon painful motion recorded at the MEB addendum and C&P examinations.  The VARD noted the examiner opined that ROM testing was not reliable.  The Board considered all applicable coding options and noted the condition was not compensable under any code related to limitation of motion, or dislocation, or malunion.  

The Board also considered whether additional disability rating was justified for peripheral nerve impairment due to radiculopathy, and was unable to justify an additional rating, normal strength, reflexes, and sensation examinations, and absence of evidence demonstrating negative impact on duty performance related to radiculopathy.  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 shoulder condition at constructive TDRL placement and removal.  

Contended PEB Conditions:  Bilateral Knee Pain.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the PTSD condition and IAW VASRD §4.130, the Board unanimously recommends a TDRL rating of 50% (6 months) and a 30% permanent rating.  The Board, IAW VARSD §4.130, is obliged to rate MH conditions based on symptoms and not diagnoses.  Therefore, all MH symptoms are included in the recommended rating for the PTSD condition.  In the matter of the right shoulder pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended bilateral knee pain condition, the Board unanimously recommends no change from the PEB determinations as not unfitting. 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%	30%	
Right Shoulder Pain	5099-5003	10%	10%	
	Combined 	50%	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140425, 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, AR20160013306 (PD201401804)

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 recharacterize the individual’s separation as a permanent disability retirement with the
combined disability rating of 40%.

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 50 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 40%
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