RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02637
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Infantryman, medically separated for “abdominal pain” rated 10%.  “Depressive disorder and anxiety disorder” were determined to exist prior to service [EPTS] and not service aggravated, and not rated.

CI CONTENTION:  “Please consider 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 - 20080422	VARD - 20081215	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Abdominal Pain…with Healed Superficial Scar	 7802	   10%	S/P Laparoscopic Hiatus Hernia Repair and Laparotomy for Repair of the Spleen with Hypersensitivity of the Epigastric Scar	7346-7804	10%	20080226	
Depressive Disorder and Anxiety Disorder	 9435	   ---%	Post Traumatic Stress Disorder	9411	Deferred		
Low Back Pain 	Not Unfitting	Sprain of the Lumbar Spine	5237	20%		
Left Knee Pain		S/P Left Knee Injury	5261	0%		
Plantar Fasciitis		Plantar Fasciitis	5284	NSC		
Headaches		No VA Placement	
Congenital Foot Deformity		No VA Placement	
Factitious Disorder		No VA Placement	
Personality Disorder, NOS		No VA Placement	
RATING:  10%	RATING:  40%	

ANALYSIS SUMMARY:  

Abdominal Pain.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented an onset of abdominal pain localized to a mid-line surgical scar complicating a procedure (fundoplication for hiatal hernia with partial splenectomy due to inadvertent laceration) in June 2006 (26 months before separation).  There were no associated gastrointestinal or constitutional symptoms with the incisional pain.  Imaging (serial CT) and laboratory investigations were normal.  A protracted trial of conservative treatment did not result in sufficient improvement to allow unrestricted duty; and, the CI was referred for an MEB which in turn forwarded “abdominal pain” to thePEB.  

The NARSUM examination on 30 October 2007 (10 months before separation) documented, “[CI] does not make a case for the pain to be originating from internal organs.  He describes the pain to be present no deeper than ½ inch from the surface, and it radiates four to six inches in all directions from the scar.”  The pain was rated 5/10 at baseline with exacerbations to 8/10 by activities requiring abdominal straining.  The physical examination recorded a “well healed somewhat hypertrophic six inch midline scar ... tender to the touch as is the surrounding area” without visceral tenderness or other abnormal findings.  

A VA Compensation and Pension (C&P) examination on 20 February 2008 (5 months before separation) documented incisional pain (specific, not implicating visceral pain) rated 5-7/10 with functional limitations “primarily at the level of the scar.”  The physical examination recorded an “exquisitely tender” midline incision without visceral tenderness or other abnormal findings.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated “abdominal pain associated with healed superficial scar” 10% under code 7802 (burn scars).  Although the more applicable code is 7804 (scars, unstable or painful), the rating was in compliance with the criteria of any scar code under VASRD §4.118.  The VA provided a 10% rating under the hyphenated code 7346-7804 (hiatal hernia rated as painful scar).  All members agreed that scar coding was applicable to this case given the clinical evidence.  None of the VASRD §4.114 (digestive system) codes were both favorable and applicable.  Analogous rating under a muscle code was also considered, but members agreed the analogous link was too tenuous for the applicable rating criteria.  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 of the abdominal condition.

Depressive and Anxiety Disorders.  The STR and VA files well established the existence of significant mental health (MH) pathology prior to the CI’s 1997 enlistment in the Army National Guard.  He suffered childhood abuse associated with some symptoms of post-traumatic stress disorder (PTSD); and, had a history of cutting behavior and suicide attempts with a hospitalization at age 16.  The service entry history and physical examination was not available for review.  The CI participated in a 2002-2003 mobilization to Cuba without combat exposure, and the Post-Deployment Health Assessment documented the presence of nightmares and avoidance, but full PTSD criteria were not met.  There was no STR evidence for service MH treatment following the deployment.  The psychiatric addendum to the NARSUM (hereafter referred to as the addendum) related the first service MH encounter as anger management group therapy in 2005, and an escalation of symptoms after the 2006 hernia surgery.  There was service treatment for mood swings and intermittent suicidal ideation (no psychiatric admissions), although the addendum related a history of panic attacks (one STR entry for emergency room treatment of same).  The addendum documented past service diagnoses of “depression, versus adjustment disorder, and partner relationship problems.”  There was no service diagnosis of PTSD related to either the childhood or service stressors.  

The psychiatric addendum was dated 30 October 2007 (9 months before separation), and documented a March 2007 presentation to the addendum psychiatrist with a complaint “of being fed up with poor military medical care, and his medical problems ... hoping to seek a MMRB [MOS Medical Review Board], as he wanted to stay in the military.”  That September the CI presented to the same provider “with such an excessive number of complaints that [they] were difficult to categorize,” and the CI was facing domestic stressors with marital discord and a pending divorce.  The addendum psychiatrist related concerns expressed by the command and other providers that the CI was “exaggerating various symptoms ... [and] ... intentionally delaying his MEB.”  He was referred for neuropsychological testing (3 October 2007) which indicated on multiple scales that the CI was “deliberately choosing incorrect answers;” for which the MEB psychiatrist clarified to the PEB, “To choose the incorrect answer you must first know the correct answer and choose the opposite, this can be distinguished versus chance alone.”  This was judged to eliminate somatoform disorders, although it could not separate malingering (willful deceit for secondary gain) from factitious disorder (a psychological compulsion to feign or exaggerate illness). The MEB psychiatrist consulted with other providers; however, and opined that the diagnosis was factitious disorder and provided a detailed rationale.  The mental status examination (MSE) documented a change in demeanor (“solemn look, nearly closed eyes ... spoke in monotone”) from an occult observation of the CI in the waiting room (“wide awake and talking on his phone”).  The only positive MSE findings were “mixed” mood and “restricted and dysphoric” affect.  There was no suicidal/homicidal ideation, psychotic or other acute features, or “any impairment in memory, concentration, or cognition.”  

The addendum provided Axis I diagnoses of “factitious disorder with combined physical and psychological symptoms,” “anxiety disorder, not otherwise specified [NOS],” and “mood disorder, [NOS];” and, an Axis II diagnosis of “personality disorder, [NOS].”  The Axis I diagnoses were forwarded separately by the MEB as failing retention standards.  The psychiatrist emphasized the factitious disorder was the “most severe” and exacerbated all other psychiatric conditions and medical symptoms.  The existence of childhood “PTSD-like” symptoms was acknowledged, but a contemporary diagnosis of PTSD was excluded.  The MEB psychiatrist specifically opined the mood and anxiety disorders were “not worsened or permanently aggravated by military service.”  Additionally it was noted the CI preferred to remain on an Army base over civilian alternatives for the duration of the MEB.  The psychiatrist further stated, “In my opinion this Soldier is currently capable to work full time in a civilian employment, in a position commensurate with his current military pay grade, from solely a psychologic perspective.”

The NARSUM, corroborated by the MEB’s DD Form 2807-1 medical history, documented no psychoactive medications were prescribed at separation other than a sleep medication (Ambien).   The psychiatric profile was S1 throughout service until a permanent S3 profile (listing factitious disorder among others) was designated in March 2008 (4 months prior to separation).  The commander’s performance statement (4 months prior to separation) acknowledged the presence of depression, but elaborated only physical limitations to performance; and, documented, “He is taking two college courses which occupy six to seven hours daily, including class time, reading, and studying.” 

A VA psychiatric C&P evaluation was conducted 10 March 2008 (6 months prior to separation) for a claim of PTSD.  Although it followed the psychiatric addendum and neuropsychological examination (and other probative evidence from above), the VA psychiatrist stated there was “not an awful lot of information” in his review of the medical records.  Without elaborating diagnostic criteria, the examiner conceded a diagnosis of childhood PTSD; and, documented the CI’s endorsement of nightmares and the other diagnostic criteria of PTSD following the Cuba deployment.  The only Criterion A stressor referenced, however, was the CI’s fear “that Al-Quida [sic] could attack them at any moment.”  The examiner further stated that the CI “is currently on no medications and the nightmares have generally gone away, as is true of most of his symptoms.”  The MSE documented that the CI “seemed a bit sad to me in mood and affect,” but did not record any additional abnormalities and noted that panic attacks were denied.   The VA Axis I diagnoses were “[PTSD] from childhood and Service stressors” and “dysthymic disorder from the [PTSD] above.”  There was no Axis II diagnosis of personality disorder, and the possibility of factitious disorder was not addressed.  The VA rating decision acknowledged the opinion from the C&P to establish service connection, but deferred a MH rating pending confirmation of stressors.  A subsequent decision provided a 70% rating for PTSD referencing a post-separation examination (22 May 2009), citing severe symptoms and service stressors not corroborated by any pre-separation evidence.  

The Board directed attention to its recommendation(s) based on the above evidence.  The PEB’s DA Form 199 decision stated the CI was “unfit for further military service due to risk of decompensation in high stress operational environments;” and, determined that the depressive and anxiety disorders existed prior to service (EPTS) without permanent service aggravation, arguing that the CI “had more severe symptoms prior to service.”  Although the PEB’s fitness rationale could be arguably applicable only to the factitious and personality disorders which were not subject to service rating, the Board’s primary charge was an assessment of the fairness of the PEB’s determination that the depressive and anxiety disorders were not permanently aggravated by service.  The Board’s recommendation in that regard was premised on (and the PEB’s decision subject to) DoDI 1332.38 which is excerpted below.
[E3.P4.5.2.3. Presumption of Aggravation] The presumption that a disease is incurred or aggravated in the line of duty may only be overcome by competent medical evidence establishing by a preponderance of evidence that the disease was clearly neither incurred nor aggravated while serving on active duty or authorized training.  Such medical evidence must be based upon well-established medical principles [E2.2.1 - Fundamental deductions consistent with medical facts that are so reasonable and logical as to create a virtual certainty that they are correct.], as distinguished from personal medical opinion alone. Preponderance of evidence is defined as that degree of proof necessary to fully satisfy the board members that there is greater than a 50% probability that the disease was neither incurred during nor aggravated by military service.
The record clearly established the acuity of symptoms prior to service was much more severe than was in evidence at separation, although that fact in itself did not exclude the possibility the natural progression was permanently worsened by service stressors.  A key determinant in that regard was the psychiatric diagnosis under consideration.  The VA opinion there was service aggravation (permanent aggravation was not addressed) was premised on a service diagnosis of PTSD with service stressors aggravating a pre-existing diagnosis of PTSD.  Members agreed; however, a service diagnosis of PTSD could not be established by a preponderance of evidence; and, was in fact quite speculative and easily challenged.  With the adjudicated diagnoses of depressive and anxiety disorders, it is clear symptoms were exacerbated in cyclical fashion by service stressors (deployment, surgery, medical conditions, MEB issues, and domestic strife); but, improved with stressor resolution and minimal treatment.  Furthermore some of the stressors were only temporally coincident with service, not a result of service.  The psychiatric addendum, commander’s statement, and VA C&P evidence all indicate the depressive and anxiety symptoms were resolving at separation without treatment.  The CI’s desire to remain in the military and preference for a military rather than civilian environment were arguably an indication that his MH conditions were no more aggravated by service than they would have been by natural progression in civilian life.  Members thus agreed, under the above standards, the MEB psychiatric opinion and PEB determination that there was no permanent service aggravation was supported by a preponderance of evidence for the ratable MH conditions.  This was especially true given the significant contribution to all symptoms and impairment by the factitious and personality disorders which were not subject to service rating.  After due deliberation, with application of the above standards of DoDI 1332.38, members agreed that there was insufficient cause to recommend a change in the PEB's determination that depressive and anxiety disorders existed prior to service were not permanently aggravated by service, rendering them ineligible for disability rating.
Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the low back pain, headaches, left knee pain, congenital foot deformity, and plantar fasciitis were not unfitting.  The lumbar, headache, and left knee conditions were forwarded as failing retention standards on the MEB’s DD Form 3947 submission; the two foot conditions were considered medically acceptable.  There was an L3 profile dating to December 2006, but it listed only the preceding abdominal surgery without designating any orthopedic or other conditions.  The permanent P3/L3 profile (recall 4 months before separation) listed the back, headache, and knee conditions.  The commander’s statement listed all conditions on the profile, but was not probative to the fitness limitations of specific conditions.  There was no indication that any specific condition had resulted in work loss; and, as noted above, the CI was a near full time student.  

The low back pain was chronic and stable, with an onset after a road march in March 2005 (3½ years prior to separation).  Imaging (MRI) was normal; there were no neurological complications; and, it was treated with an anti-inflammatory.  Although there was no specific evidence for worsening acuity at the time of the MEB, the commander’s statement and the C&P examination documented functional limitations incompatible with an infantry MOS, some of which were arguably attributable to the back.  The headaches were chronic, but escalated in July 2007.  Despite being forwarded as medically unacceptable, the NARSUM stated that the headaches had improved to “an annoyance” level and “currently ... do not ... interfere with satisfactory performance of duty.”  There was no headache claim to the VA.  The left knee pain dated to basic training in 1997 (no specific injury), was chronic and stable, and there was no evidence for worsening acuity at the time of the MEB.  The condition was rated 0% by the VA.  There was only a single entry in the STR regarding the feet, a podiatry consult from January 2008 noting congenital metatarsus adductus and diagnosing plantar fasciitis.  The NARSUM did not address any foot complaints.  The pre-separation C&P examiner documented that the plantar fasciitis was “significantly improved” with the use of inserts, and the VA did not service connect the condition. 

The Board directed attention to its recommendations based on the above adjudication standards and evidence.  Although the lumbar and knee conditions were profiled and judged to fail retention standards, they were chronic conditions with no indication of worsening severity at separation.  They were thus subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral); which stipulates, “If the evidence establishes the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  There was no evidence for functional limitations specifically attributable to the back or knee at separation.  There was no performance-based evidence that the headache and foot conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board’s consensus conclusion was that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the abdominal pain condition and IAW VASRD §4.118, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the depressive and anxiety disorders, the Board unanimously recommends no change in the PEB adjudication that they existed prior to service and were not permanently aggravated by service; and, affirms that the factitious and personality disorders were not subject to disability rating IAW DoDI 1332.38.  In the matter of the contended lumbar, headache, left knee, congenital foot deformity, and plantar fasciitis conditions, the Board, by a majority vote recommends no change from the PEB determinations as not unfitting.  The single voter for dissent recommended an additional 10% rating for the lumbar condition, judged to be separately unfitting, and did not elect to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  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 20140601, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 AR20160013863 (PD201402637)

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