RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXX	CASE:  PD-2014-01950
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050201

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E-4 (Heavy Wheeled Vehicle Operator) medically separated for a right knee condition.  This condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  The profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3/S2 profile and referred for an Medical Evaluation Board (MEB).  Right knee pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded depressive disorder not otherwise specified (NOS).  The Informal PEB (IPEB) adjudicated right knee pain as unfitting, rated 0% with cited application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining depressive disorder was determined to exist prior to service (EPTS), not service aggravated and not ratable (not unfitting).  The CI appealed to the Formal PEB but a Reconsideration PEB was held which increased the right knee pain rating to 10% and affirmed the depressive disorder findings.  The CI made no further appeal and was medically separated.

CI CONTENTION:  The applicant makes no specific contention in his application.  His complete submission 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 condition 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 confined to 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 Recon PEB – Dated 20050105	VA** - (~6 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Pain	5099-5003	10%	Right Knee Strain	5260	10%	20050806	
Depressive Disorder NOS	9435	---*	PTSD/Depressive DO	9434-9411	30%	20050806	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 7	
RATING:  10%	RATING:  70%	
* Determined to exist prior to service (EPTS), not service aggravated and not ratable (not unfitting)
**Derived from VA Rating Decision (VARD) dated 20050912 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board noted the absence of the VA Compensation and Pension (C&P) Mental Health and General exams performed in closest proximity to the date of separation.  The Board further noted that the VARD referenced, in detail, the results of these exams in the explanation of their rating decision.  Members deliberated if the absence of the original documents would negatively impact their ability to render a fair assessment.  The Board unanimously agreed that the evidence referenced in the available VARD was sufficiently probative such that the missing documents would not materially affect the Board’s final recommendation.

Right Knee Pain Condition.  The earliest service treatment records (STR) dated August 2004 reflected a 13-month history of ongoing right knee pain and “occasional locking sensation.”  The STR was inconsistent on the mechanism of injury stating both a “direct blow” as well as having “no specific injury.”  Radiographic work-up was normal and despite physical therapy and activity restrictions, persistent subjective knee pain continued and he was eventually referred to a MEB.  At the MEB narrative summary (NARSUM) examination (performed 6 months prio0r to separation) the CI’s chief complaint was “stress” with minimal history regarding the alleged knee injury.  He reported right knee pain.  His physical examination revealed tenderness about the right knee and the use of a cane for ambulation.  There was no effusion, abnormal sensation, instability, and limited or painful motion present.  The examiner listed the diagnosis as, right knee pain which is refractory to conservative measures.  “His [the CI’s] examination is most consistent with medial collateral ligament injury, though that would have been expected to have abated by now.”  “I do not expect that he will improve under continued military demands.”  Additionally, the examiner noted that the CI’s pain response was “somewhat exaggerated.”  The commander’s statement indicated not meeting standards with implication to his “knee injury” as contributing to his inability to perform within his MOS in a field or tactical environment.

Based on VARD dated 12 September 2005, the findings from the VA C&P General examination dated 6 August 2005 (performed 6 months after separation) are annotated in the range-of-motion (ROM) chart below; in addition to the MEB (Ortho exam) which the Board weighed in arriving at its rating recommendation.

Right Knee ROM
(Degrees)	Ortho (MEB)
 ~5 Mo. Pre-Sep
(20040826) 	VA C&P ~6 Mo. Post-Sep
(20050806) ‘From VARD’	
Flexion (140 Normal)	FROM	90	
Extension (0 Normal)	FROM	0	
Comment	Tenderness	Painful motion; weakness	
§4.71a Rating	0%-10% (PEB 10%)	10% (VA 10%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5003 code (Degenerative arthritis).  Using code 5260 (Limited flexion) the VA also assigned a 10% rating citing painful motion.  While there was no evidence of compensable limitation of motion, the Board agreed that the PEB’s 10% rating was supported under the 5003 coding pathway by sufficient evidence of painful motion (§4.59), or §4.40 (Functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled”, and clearly, the persistence of direct painful motion was evidenced in the VA General examination 6 months post separation.  The Board considered, additional or alternate codes of 5258 (Cartilage, semilunar, dislocated…) and 5262 (Tibia and fibula, impairment…) were not justified at a 20% level in the presence of a stable non-locking knee where any boney pathology did not involve the tibia or fibula; therefore, 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.

Depressive Disorder.  The STR did not contain any individual clinical documents pertaining to a firm diagnosis of depressive disorder, but rather the conditions of “situational depression” and “mild depression” were listed as part of specialty consultation conducted in April 1990.  The NARSUM dated 27 August 2004, noted that the CI was deployed to Kuwait and Iraq from May-August 2003.  Medevac’d back to the United States, the CI’s case manager referred him to behavioral health for complaints of increased irritability, poor sleep, nightmares, intrusive thoughts, increased vigilance, decreased interest, sadness, chronic pain, fearfulness, social withdrawal, and poor concentration, after being in combat while in Iraq.

The MEB NARSUM examination was a detailed account of the CI’s experience while deployed which included significant feelings of guilt and anger resulting from witnessing human abuse/death…described as “gut wrenching.”  Additionally reported was combat exposure during an ambush, and knowledge of the probable killing of an Iraqi child.  The CI endorsed avoidance of news and social settings, as well as having poor self-esteem, poor concentration, decreased energy, and occasional suicide ideations.  His mental status examination (MSE) revealed him to be alert and fully oriented.  He possessed a sad affect and a depressed mood.  His thought processes were logical and normal.  His memory, insight, and judgment were intact.  The examiner did make note that the CI “appeared to be embellishing some of his history at times” and that he “appeared to ruminate about his experience during his recent deployment”.  His Global Assessment of Functioning (GAF) was 65; connoting between “mild” and “moderate” impairment.  The psychiatric diagnosis was depressive disorder NOS, manifested by life-long history of reactive mood with recent exacerbation after stressful deployment in support of Operation Iraqi Freedom (OIF).

The examiner acknowledged the EPTS issue in reference to the depressive condition and further opined that there was no permanent service aggravation of the same.  Functional impairment for further military duty and for social and industrial adaptability was assessed as “minimal” and “mild”, respectively.  The CI’s mental health (MH) condition did not, in the opinion of the MEB NARSUM examiner, meet diagnostic criteria for PTSD, but rather post-deployment/combat stress reaction to what the CI perceives as undesirable conduct on his own behalf and for which he feels significant guilt.  The corresponding permanent profile listed the diagnosis of depressive disorder as well as a primary non-MH condition and noted L-3 and S-2 under the P-U-L-H-E-S profile classification system.

A VARD dated 12 September 2005 indicated that a VA examination was conducted on 6 August 2005 (6 months after separation) that revealed PTSD and depression driven symptoms of insomnia, flashbacks, hypervigilance, and exaggerated startle response all of which contributed in having “difficulty establishing and maintaining effective work and social relationships.”  His GAF was 54, between “moderate” and “serious” impairment.  His VA mental status exam was normal excepting an “abnormal” affect and mood.  There was no evidence of delusions, hallucinations, obsessive rituals, suicidal/homicidal ideation, or panic attacks.  Incidentally, the case file did contain submission for the Bronze star medal which was disapproved at the final approval level.

The Board directed attention to its rating recommendation based on the above evidence.  Having been established that the CI’s MH condition was existed prior to service; the Board’s first requirement was to determine if the condition was permanently service aggravated?  Members deliberated and agreed that based upon the CI’s documented OIF tour coupled with MH care for post combat-exposure did support a condition of permanent aggravation.  The Board next considered if the CI met VASRD §4.129 criterion that requires a mental disorder to have developed in service as a result of a highly stressful event that is severe enough to bring about a veteran’s release from active military service.  Although some contribution of service stressors to the MH condition was clearly present (as indicated by the case manager’s referral); the Board majority found the requisite §4.129 link that the condition occurred “as a result of a highly stressful event” was not adequately satisfied.  The comment of possible “embellishing of history”, only strengthen the Board majority’s view.  Members therefore, will consider only the VASRD §4.130 impairment present at the time of separation for a single rating recommendation.

The MEB NARSUM clearly supported a 10% rating by the daily use of psychotropic medication and members deliberated if a higher rating was supported.  The 30% criterion shows occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  The CI was only given an S2 profile and trusted to carry and fire a weapon.  The commander stated that the CI’s knee injury restricted him from performing MOS duties.  The specific description of “minimal” and “mild” in reference to social and industrial adaptability coupled with a near normal MSE at the VA exam, provided Board members sufficient evidence to conclude that the CI’s overall MH condition was assessed no greater than “mild”.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and VASRD §4.130, the Board concluded that the EPTS MH condition be rated at 10% impairment under code 9434 (major depressive 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the right knee was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the depressive disorder condition, the Board unanimously recommends a disability rating of 10%, coded 9434 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, effective as of the date of his prior medical separation:
	
UNFITTING CONDITION	VASRD CODE	RATING	
Right Knee Condition	5099-5003	10%	
Major Depressive Disorder	9434	10%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140423, 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 XXXXXXXXX., SSN XXX-XX-XXXX, AR20160003416'(PD201401950)

1. 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,
accept the Board's recommendation to modify the individual's disability rating to 20%
without re-characterization of the individual's separation. This decision is final.
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.
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:
 
Deputy Assistant Secretary of the Army
CF:
( ) DoD PDBR
( ) DVA
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