RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXXXX	CASE: PD-2014-01824
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20090819

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E-7 (Cavalry Scout) medically separated for a right knee condition. The CI served in Iraq from September 2006 to May of 2008. There were no personal combat related awards in the evidence of record. The CI’s right knee could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB referred “chronic right knee pain status post arthroscopic repair…” and “chronic right knee pain due to osteoarthritis” to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. The MEB also identified and forwarded  “anxiety disorder NOS” (not  otherwise  specified) and three  non-
mental health (MH) conditions (see rating chart below) as medically acceptable for PEB adjudication. The CI requested a 2nd opinion from the MEB after which a second psychiatric Narrative Summary confirmed the anxiety disorder diagnosis as stipulated. The PEB adjudicated the two referred knee conditions from the MEB as one condition for rating purposes: “degenerative arthritis, right knee”, unfit, rated 10%, citing criteria 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 contends that his rating should have been higher.	The complete contention is at Exhibit A.

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.

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process. The MH condition was reviewed regarding diagnosis  change,  fitness  determination  and  rating  in  accordance  with  VASRD  §4.129  and
§4.130.

RATING COMPARISON:

Service IPEB -Dated 20090420		VA - 17 Mos. Pre-SeDaration		
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis,	5003
Right Knee	
10%	Degenerative Arthritis, Right	5003
Knee	0%	20090113	
		Surgical Scars Right Knee	7805	0%	20090113	
Anxiety Disorder	Not Unfitting	PTSD	9411	30%	20090113	
Chronic Bone Spurs, Right
5th Metatarsal	Not Unfitting	Bone Spurs	5015	NSC	20090113	
Low Back Pain	Not  Unfitting	Degenerative Arthritis, Lumbar	5242
Soine	10%	20090113	
Hypertension	Not Unfitting	Hypertension	7101	0%	20090113	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 0			
Combined: 10%	Combined: 50%			
Derived from VA Rating Decision (VARD) dated 20091029 (most proximate to date of separation [DOS]).
VARD 20101129 increased DC 9411 to 50% effective 20100528. VARD 20140421service connected DC 5015 and rated this 0%
effective 20090820.

ANALYSIS  SUMMARY:

Right Knee Condition. Service treatment records (STR) noted the applicant reported in July 2007 that he had pain in his right knee after injuring it on the door of a Humvee. It was like "being stabbed with a knife" and hurt more with movement. X-rays showed moderate osteoarthritis and magnetic resonance imaging (MRI) showed a partial tear of the anterior cruciate ligament and lateral meniscus posterior horn. Surgical repair was performed in July 2008. At the narrative summary (NARSUM), dated November 2008,the Cl reported constant pain worse with rain, cold weather, going up and down stairs, wa lking over uneven terrain, running or walkingfast. Pain was 5/10 intensity. Multiple medications and physicaltherapy did not bring any significant improvement. He was taking one medicine for symptoms. Orthopedics has opined he will eventually require a knee replacement. Exam revea led the applicant walks with a cane and has an antalgic gait with obvious limp in the right knee. The knee was tender over the medial collateral ligament, the lateral jo int line, and the patellar tendon insertion on the tibia. The patella was painful on grinding. Goniometer measurement showed a flexion to 120 degrees, not limited by pain. Chronic pain prevented him from performing his military duties. It was quite painful going up and down stairs and he was unable to wear body armor,and could not run.

The commander's statement noted the applicant could not perform the duties of Soldiering to include: "carry and fire a weapon, move with a fighting load at least 2 miles, perform fitness training, and unlimited running, biking, and swimming. He did not work an 8 hour duty day because he was enrolled in school and was not able to perform without an unreasonable number and duration of rest periods due to physicallimitation profile."

At the VA Compensation and Pension (C&P) orthopedics exam performed seven months before separation, the Cl reported weakness, stiffness,swelling, lack of endurance and fatigue related to the knee. There was no heat, redness, giving way, locking or dislocation. The pain was localized and constant with a pain level of nine. It was elicited by physical activity and was treated with pain medicine.  Exam showed he wa lked with a normal gait and had normal posture. There was tenderness but no edema, effusion,weakness, redness,heat,guarding of movement, and subluxation. There was crepitus but no gross recurvatum and locking pain. Flexion was 140 degrees. Joint function was not additionally limited by pain,fatigue,weakness, endurance or incoordination after repetitive use. Stability tests were normal. Sensory exam and pulses were normal.

The Board directed attention to its rating recommendation based on the above evidence. The PEB’s 0% rating analogous to 5003 (degenerative arthritis) cited limitation of motion of one joint and considered functional loss 4.10, 4.40, 4.45 and 4.59. The VA assigned a 0% rating under the same code. The Board noted that code 5259 (cartilage, semilunar, removal of, symptomatic) is clinically appropriate to this case but did not confer a rating higher than 10% rating. The Board considered application of code 5258 (cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint), which confers a 20% rating. The final NARSUM orthopedic exam (above) suggests that mechanical locking was not present, and the criterion of frequent effusions (a requisite for 5258) was refuted. With the absence of instability, there is no route to a rating higher than 10%. 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 right knee pain condition.

Contended PEB Conditions: The Board’s main charge is to assess the fairness of the PEB’s determination that anxiety disorder, chronic bone spurs, low back pain, hypertension, were 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.

Chronic Bone Spurs, Low Back Pain, Hypertension. The Board reviewed all these conditions and determined none of these  conditions were profiled and none were implicated in the commander’s statement and were not judged to fail retention standards. There was no performance based evidence from the record that any of these conditions 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 chronic bone spurs, low back pain, hypertension contended conditions and so no additional disability ratings are recommended.

Anxiety Disorder. Approximately one week after redeployment, the CI was referred to Behavioral Health due to symptoms of insomnia, nightmares, being easily startled and jumpy, intrusive thoughts and nightmares about Iraq, and being angry. He was diagnosed with mild PTSD due to combat experiences, including seeing one of his buddies shot in Iraq. The Psychiatric NARSUM exam, dated December 2008, note his psychiatric symptoms never caused any problems for daily functioning while on deployment and post-deployment. He had received psychotherapy and Prolonged Exposure therapy since June 2008 and had not been taking any psychotropic medications. He was future-oriented, had good primary support, and helped with minor administrative duties. He was described as a hard-worker and good soldier. He denied psychiatric symptoms, denied being suicidal or homicidal, and did not have psychiatric hospitalizations. Mental status exam (MSE) was essentially normal. A diagnosis of Anxiety disorder NOS was rendered. The CI disagreed with the NARSUM findings and requested a second opinion.

The VA Compensation and Pension (C&P) exam, dated January 2009, noted the CI had not worked since May 2008 because of right knee pain. His relationship with his wife was good but he was withdrawn and did not participate in any social activities. He endorsed symptoms of PTSD and was taking one psychotropic medication. The MSE was notable for his endorsement of depressed mood, constricted affect, and the report of hearing the voice of his deceased friend calling him as he tried to fall asleep. He had not heard it for some time. He denied suicidal and homicidal ideation. There were no panic attacks. A diagnosis of  PTSD  was rendered with a global assessment of function (GAF) score of 55 (moderate impairment.)

A 2nd opinion Psychiatric NARSUM, dated March 2009, noted the CI requested an extension after the first year of deployment in Iraq and was in the process of volunteering for a third tour but had injured his right knee. He was unable to identify any limitations to accomplish his duties as a result of his emotional state. His marriage was excellent and he enjoyed cooking out, listening to music, and spending time with family and friends. The examiner noted that he had some symptoms of PTSD but was absent significant symptoms of avoidance, “C” criteria or symptoms of significant impairment in social or occupational functioning, “F” criteria. The examiner concurred with the diagnosis of anxiety disorder and determined he did not meet criteria for PTSD.

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the military disability evaluation system (DES). The evidence of the available records shows the MEB diagnosis of anxiety disorder and VA diagnoses of PTSD were rendered during the DES process. Under the Terms of Reference of the MH Review Project, the Board considers the elimination or change in diagnosis of PTSD applying criteria of the DSM IV (Text Revision). Since the VA diagnosis of PTSD was formally considered, the Panel concluded that this case did not meet the inclusion criteria of the Terms of Reference of the MH Review Panel. Board members concluded that the preponderance of evidence did not support a diagnosis of PTSD at the time of separation. The STR, NARSUMs, and C&P exams never showed impairment of duty due to psychiatric symptoms.

The Board then turned to its assessment of the fairness of the PEB’s determination that the PTSD condition was not unfitting. The Board’s threshold for countering fitness determinations is higher than the reasonable doubt standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The MEB psychiatric initial and second opinions, the absence of significant psychiatric symptoms or treatment at the time of separation, the S1 profile, and the lack of implication of any MH-based performance limitations by the commander are compelling arguments opposing a conclusion that the MH condition can be reasonably recommended as unfitting. 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 anxiety disorder.

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 right knee pain condition and IAW VASRD §4.71a, the Board recommends no change in the PEB adjudication. In the matter of the contended anxiety disorder, bone spurs, hypertension and low back pain conditions, and the Board recommends no change from the PEB determinations 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 20140424, 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 XXXXXXXXXX, AR20160003814 (PD201401824)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA