RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02939
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090612

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Combat Engineer, medically separated for “major depressive disorder,” “left (non-dominant) thumb,” and “hepatitis C,” rated 10%, 10%, and 0%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  “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 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 PEB - 20090320	VARD - 20130129	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	PTSD with Opiate Dependence	9411	70%	20121206	
Left (non-dominant) Thumb	5228	10%	No VA Entry	
Hepatitis C	7354	0%	No VA Entry	
Osteomyelitis, Symphysis Pubis	Not Unfitting	No VA Entry	
Headaches	Not Unfitting 	Migraine Headaches	8100	50%	20121206	
TBI	Not Unfitting	Residuals, TBI	8045	40%	21021206	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Major Depressive Disorder.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI was diagnosed with the depressive disorder by psychiatry in February 2009.  Treatment records for this condition was silent.  

The psychiatric consultation to the MEB (addendum) dated 2 February 2009 (6 months prior to separation), documented that prior to service the CI had a history of opioid abuse/dependence, which included intravenous (IV) use of Heroin since high school.  The psychiatrist noted that the CI reported he had continued his use of opioid and was currently being treated with a medication to decrease dependency and abuse.  His condition was currently in remission.  It was not clear if the condition of depressive disorder was secondary to the drug dependency; however, the examiner noted the CI reported he had suffered nightmares and some intrusive thoughts since returning from deployment.  The CI was deployed to Iraq in August 2006 for 1 year.  During his deployment he reported he suffered multiple blast exposures and, on one occasion, he was required to shoot four hostiles in battle.  The CI noted since his return he has had poor sleep, nightmares, and vivid recollections of his experiences in Iraq.  He was seen by mental health (MH) and either took medication briefly or declined medications.  He self dis-enrolled from the post-traumatic stress disorder (PTSD) group, stating he did not need this treatment modality.  The examiner noted that he did not meet full DSM-IV diagnostic criteria for a PTSD diagnosis.  

The CI reportedly underwent neuropsychological (NP) testing for evaluation of possible traumatic brain injury (TBI) and was judged to be fit for duty, including deployment.  The examiner noted that the CI had continued to work in his primary job and per his report, he would be preparing to deploy, if it was not for his hepatitis C condition.  The CI reportedly stated, “I would rather be going back to Iraq with my unit.”  The mental status examination (MSE) was unremarkable.  The examiner documented the condition of opioid dependence, early full remission with impairment in social in occupational function resulting from drug use; and depressive disorder, not otherwise specified (NOS) “that have impaired social and occupational functioning, currently unable to distinguish whether depression is a subclinical manifestation of substance abuse disorder or post-traumatic stress.”  A Global Assessment of Functioning (GAF) score of 75 (mild for psychiatric conditions) was assessed.  The examiner opined a good prognosis.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the major depressive disorder 10% coded 9434 (major depressive disorder), citing development following treatment in the substance abuse program for opiate addiction.  The PEB also considered VASRD §4.129, but could not verify a highly stressful event.  The 6 December 2012 VA C&P evaluation was too remote for Board’s consideration (41 months post-separation).
The Board first considered if the PEB’s opinion was correct in that §4.129 was not 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 6 month period following the Veteran’s discharge to determine whether a change in evaluation is warranted.  The psychiatry addendum recorded the onset of symptoms after the CI returned from deployment.  Although he described possible traumatic exposure, no specific traumatic event was documented.  It was also noted that his primary diagnosis was opioid dependence, and the examiner noted that his depression may have been secondary to opioid use.  It was also noted that the CI had desired to return to combat, and the neuropsychological examiner indicated there were no mental health contraindication to future deployment. Board members agreed the provisions of §4.129 were not applicable in this case.   

The Board next considered the rating recommendation based on the evidence.  The higher rating of 30% requires evidence of “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks” due to  such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events.  The psychiatry addendum recorded two symptoms, irritability and depressed mood, and opined that his condition was mild.  The MSE was unremarkable.  There were no documented symptoms of chronic sleep disturbance, problems with memory or concentration, panic attacks, or evidence of medication required for symptom stability.  The GAF of 75, solidly placed him in the mild range of symptoms and or impairment.  The Board acknowledged that his condition worsened after separation.  He had returned to abusing opiates and alcohol which resulted in an inpatient admission, approximately 3 years after separation.  However, that examination and the admission were too remote from separation for application by the Board.  All Board members agreed, the CI’s condition at the time of separation, reflected no higher than the 10% level of impairment for mild symptoms and or impairment.  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 MDD condition.  

Left (Non-Dominant) Thumb.  According to STR and the MEB NARSUM, the CI injured his left thumb after falling down from a parked military vehicle. He developed pain unresponsive to conservative treatment, and was therefore referred to the orthopedic hand clinic.  The CI was diagnosed with possible partial tear of the collateral ligament and placed in a cast.  However, his pain worsened and surgery was considered the best option.  The CI underwent reconstruction surgery, participated in occupational rehabilitation therapy and took medication; however, his thumb continued to cause him pain.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “collateral ligament injury, left thumb” for PEB adjudication.

The MEB NARSUM examination on 5 February 2009 (4 months prior to separation) documented significant pain with active and passive motion of the thumb.  The CI was able to bring the 2nd to 5th fingers to his palmer crease without difficulty, but was unable to bring his thumb in to touch his fingers, nor was he able to bring his fingers to meet the thumb without having to bend his fingers.  The examiner noted that the CI was “2 cm away from touching his 4th finger and 4.5 cm away from touching his 5th finger and thumb tip.”  He had full range of motion in both wrists, and there was no evidence of inflammation or atrophy of the left thumb.  There was no evidence that the CI pursued a VA claim related to his left thumb.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the left thumb condition 10%, coded 5228 (limitation of motion).  The higher 20% rating under this code requires a gap of more than 2 inches (5.1cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers.  The MEB documented 2cm, and 4.5cm of thumb opposing digits 4 and 5 respectively, therefore, the 20% was not approached.  There was no ankylosis of the thumb to warrant a higher rating.  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 left (non-dominant) thumb condition.  

Hepatitis C.  According to STR and the MEB NARSUM, the CI was hospitalized in September 2008 after complaining of pelvic bone pain.  He was diagnosed with an infection of the pelvis and was started on treatment.  During his evaluation, serology testing revealed he was positive for hepatitis C.  His liver function tests were normal. He was initially told that he would be able to obtain a waiver (which he did get) for the condition and deploy with his unit in December 2008; however, it was decided he should undergo an MEB.  

The MEB NARSUM examination on 5 February 2009 (4 months prior to separation) noted symptoms associated with hepatitis C were not documented.  It was noted that his liver function tests were normal, but that there was evidence of viral replication; however, active hepatitis C symptoms were not documented.  Evidence of hepatitis C treatment was absent. Physical examination recorded height of 71 inches and weight of 170 pounds.  There was no evidence that the CI pursued a VA claim related to hepatitis C.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the hepatitis C condition 0%, coded 7354 (hepatitis C or non-A, non-B hepatitis) citing non-symptomatic.  A higher rating of 10% under this code requires evidence of intermittent fatigue, malaise, and anorexia, or incapacitating episodes with symptoms such a fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain; having a duration of at least 1 week, but less than 2 weeks, during the past 12-month period.  Board members agreed, there was insufficient evidence to support a compensable rating.  There were no additional VASRD code to consider for this condition.  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 hepatitis C condition. 

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the headaches, TBI and osteomyelitis of the symphysis pubis conditions were not unfitting.  The contended conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of the contended conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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 headache, TBI, and osteomyelitis of the symphysis pubis conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the major depressive disorder condition and IAW VASRD §4.130 the Board unanimously recommends no change in the PEB adjudication.  In the matter of the left (non-dominant) thumb condition and IAW VASRD §4.71a the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended headaches, TBI, and osteomyelitis, symphysis pubis conditions, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 20140619, 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 XXXXXXXXXXXXXXXXXXXXXXX AR20160011 093 (PD201402939)

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