RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02215
BRANCH OF SERVICE:  Army	BOARD DATE:  20150414
SEPARATION DATE:  20060331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Light Wheel Vehicle Mechanic) medically separated for a posttraumatic stress disorder (PTSD) and chronic right knee pain conditions.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB).  The PTSD and right knee, conditions, characterized as “posttraumatic stress disorder” and “chronic right knee pain secondary to bipartite patella and chondromalcia,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Two other conditions (alcohol abuse and right epididymitis) were submitted by the MEB.  The Informal PEB adjudicated “posttraumatic stress disorder” and “chronic right knee pain,” as unfitting, rated 10% and 0% respectfully, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The alcohol abuse was determined to be a non-compensable condition and the right epididymitis condition was determined to be medically acceptable by the PEB.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Consider all Conditions”

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 20060313	VA* - (~5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD 	9411	10%	PTSD	9411	50%	20060804	
Chronic Right Knee Pain	5099-5003	0%	Chondromalcia Patella Right Knee	5014	0%	STR*	
Alcohol Abuse	Not Compensable	No VA Placement	
Right Epididymitis	Not Unfitting	No VA Placement	
Other x 2 (Not In Scope)	Other x 2	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20061018 (most proximate to date of separation [DOS]).  *Failed to Show for VA General Exam.

ANALYSIS SUMMARY:

Posttraumatic Stress Disorder (PTSD).  The psychiatric narrative summary (NARSUM) documented that the CI was deployed to Iraq in April 2003, and subsequently developed symptoms consistent with PTSD.  Mental health (MH) treatment records were not available for review; however, the record documented that the CI initially sought mental health care during deployment in January 2004.  At that time he was on a patrol and was dispatched to deliver medical support when he encountered several seriously injured Soldiers.  He provided CPR to one of the Soldiers who died.  The CI experienced anxiety symptoms and was referred to combat stress and was started on anxiolytic medication that helped.  He was able to complete his deployment and returned home to continue his MH treatment.  The psychiatric NARSUM dated 2 November 2005, approximately 5 months prior to separation, recorded the CI’s report of combat-related symptoms consisting of nightmares, recurrent intrusive memories, anger, irritability, emotional numbness, anxiety, poor sleep and decrease interest in previously enjoyed activities.  The CI reported he “has blanked out” on training exercises, and that his symptoms have caused stress in his marriage.  He was taking an antidepressant, and an anxiolytic medication for mood and anxiety symptoms, and he took medication for insomnia.  His medication regimen has had a moderate improvement in his symptoms.  History of psychiatric hospitalization and past MH history was denied.  Mental status examination (MSE) documented mildly constricted affect, normal thought processes without psychotic, suicidal or homicidal content, and no impairment in thinking or judgment.  The diagnosis of PTSD was assessed with a Global Assessment of Functioning (GAF) score of 60 (borderline moderate-mild).  The commander’s statement documented that the CI “is physically incapable of reasonably performing his duties…due to his PTSD symptoms.”

At the VA Compensation and Pension (C&P) mental evaluation dated 4 August 2006, approximately 4 months after separation, the CI indicated he was living with his wife and two children and he was working full-time as a mechanic.  He had legal problems related to assaulting a police officer in November 2005.  It was not clearly documented that the CI had remained in treatment; however, he reportedly was taking an antidepressant, and anxiolytic medication.  There was no indication that he had been hospitalized or treated in the emergency room for MH issues.  The examiner documented no history of suicidal behavior or violence, and noted that he had “sporadic” panic attacks.  MSE was unremarkable.  The CI indicated that he was somewhat distant from his family and was not in touch with them or any of his friends.  He spent his free time watching TV, sometimes he surfs the internet and he occasionally goes out.  The examiner diagnosed PTSD with a GAF of 45 (serious), and noted that although the CI was able to work, he was isolative.

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the condition of PTSD under the code of 9411; however, the PEB assigned a 10% disability rating, and the VA assigned a rating of 50%.  Additionally, the PEB indicated the condition was in partial remission, and was the result of combat exposure in Iraq.  The Board in compliance with the provisions of VASRD §4.129 (mental disorders due to traumatic stress) noted the provisions were applicable in this case and therefore, must assign a disability rating of not less than 50% for an initial period of 6 months following separation, with subsequent fitness and ratings based on the applicable evidence.  The Board next considered if there was evidence for a §4.130 rating higher than 50% at the time of placement to the Temporary Disability Retired List (TDRL).  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.”  The Board noted the absence of psychiatric hospitalizations, recorded visit to the ER for MH issues, and evidence of impairment in judgment or thinking.  His MSE at the NARSUM and VA were essentially normal and presented no evidence of impairment in thinking or judgment.  The Board considered the record in evidence did not support a higher than 50% rating for TDRL placement.  The Board concluded there was insufficient reasonable doubt (IAW VASRD §4.3) for recommending a 70% TDRL placement rating.  The Board next determined the most appropriate fit with VASRD §4.130 criteria at the removal of TDRL for its permanent rating recommendation.  The Board deliberated the evidence for the 50% versus 30% disability rating.  The 50% disability rating requires evidence of “Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; and impaired abstract thinking.”  The Board considered the VA psychiatric examination, and noted the absence of any treatment records during the constructive TDRL period.  The C&P examination recorded the CI was working full-time, and tended to self-isolate.  He had symptoms; however, his symptoms had not impaired his ability to work.  The examiner noted the absence of suicidal thoughts, hospitalizations, and although he reported significant anxiety, panic attacks had been sporadic.  The CI reportedly stated he had legal problems in November 2005, 5 months prior to separation, related to assaulting a police officer; however, this incident was not recorded in the sworn commander’s statement dated December 2005.  The Board noted that.  The Board took in consideration the commander’s statement that there had been significant impairment in occupational functioning due to PTSD symptoms; the evidence that the CI was able to perform duties of a mechanic after separation and the report that he jumps at the noises at work and sometimes misses time from his job, and has limited social interactions.  Board members agreed there was insufficient evidence to support the 50% rating criteria.  The 30% disability rating for “occupational and social impairment due to occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks anxiety, suspiciousness, panic attacks (weekly or less often), and chronic sleep impairment” was supported, and therefore, all Board members agreed that the preponderance of evidence best reflected the 30% level of disability.  After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 30% permanent disability rating for the condition of PTSD.

Chronic Right Knee Pain Condition.  The CI has a bipartite patella (a congenital condition).  The MEB NARSUM dated 19 January 2006 recorded the CI’s history of chronic right knee pain associated with an injury sustained in April 2005 while on active duty.  At the time the CI self-treated with Motrin, but noted no improvement.  He returned to the United States and was sent for a magnetic resonance imaging (MRI).  An MRI performed on 31 August 2005 documented bipartite patella, mild chondromalacia patella change and no other internal derangement.  He was referred to orthopedics, and was placed on Motrin and referred to physical therapy (PT).  The CI attended three PT sessions with no improvement, and was referred back to orthopedics.  The orthopedist advised him that his problem could not be corrected with surgery and that PT should continue but if there was still no improvement, a P3 profile would be generated.  The examiner documented the range-of-motion (ROM) measurements recorded at the 10 January 2006 PT visit that noted right knee flexion average of 95 on three trials, compared to left knee flexion average of 115.  Both left and right knee extension measurements were 0.  The examiner diagnosed chronic right knee pain secondary to bipartite patella and chondromalacia.  His P3 profile did not allow unlimited running, walking, biking or swimming.  He could not jump, engage in prolong standing or ruck.  He could walk and swim at his own pace.  Treatment records were not among evidence.  However, the NARSUM did not document episodes of knee instability, giving way, catching or swelling; and no report of neuromuscular deficit.  The CI was non-attendant to the scheduled VA C&P examination.

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the Board placed the CI on a constructive TDRL period of 6 months for his PTSD; therefore, the TDRL period applies to the right knee condition as well.  The Board noted that during the constructive TDRL period treatment records were not in evidence and the CI had not attended the scheduled VA examination.  The PEB coded the condition of right knee pain under the analogous coding of 5099-5003 and assigned a 0% rating for arthritis of one joint.  The VA used the service treatment records for the condition diagnosed as chondromalacia patella, right knee, and rated the condition under the 5014 (ostemalacia) code and assigned a 0% rating.  A higher rating of 10% under either the 5014 or 5003 code requires evidence of ratable limitation of motion, which was not supported by the evidence.  The Board noted the absence of ratable ROM, and therefore, ROM codes were not applicable.  The Board considered the application of §4.40 (functional loss) and §4.59 (painful motion), and noted the absence of documentation of pain on motion, and of weakness limiting motion.  Board members concluded there was insufficient evidence to support the application of the provisions.  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 determination for the chronic right knee pain condition at TDRL placement and at permanent separation.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the conditions of right epididymitis and alcohol abuse were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The alcohol abuse condition is not a ratable condition; and the conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  The conditions were reviewed and considered by the Board.  There was no performance based evidence from the record that either condition 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 contended conditions and so no additional disability ratings are recommended.

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 PTSD condition, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed; and a 30% permanent rating IAW VASRD §4.130.  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.  In the matter of the contended alcohol abuse and right epididymitis conditions, 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.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified to reflect that the applicant was placed on the TDRL at 50% for a period of 6 months IAW §4.129, and then permanently separated with severance pay by reason of physical disability with a final 
30% rating as indicated below.

UNFITTING CONDITION	VASRD CODE	TDRL RATING	PERMANENT
RATING	
Posttraumatic Stress Disorder	9411	50%	30%	
Chronic Right Knee Pain	5099-5003	0%	0%	
	COMBINED	50%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140421, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXXXXX, AR20150014959 (PD201402215)

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 30%.

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 30% 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:

Encl						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)