RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03276
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150605
SEPARATION DATE:  20080602

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Hospital Corpsman) medically separated for anxiety disorder not otherwise specified (NOS) and a left knee condition.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The initial MEB forwarded “pain in joint involving lower leg” to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB found the CI “Fit to continue active duty.”  The CI requested reconsideration.  A second MEB forwarded “Anxiety State, unspecified” to the PEB.  A PEB Reconsideration adjudicated “anxiety disorder not otherwise specified” and “continued left knee pain status post tibial tubercle osteotomy status post tibial tubercle osteotomy for patellar instability and osteochondral transfer for chondromalacia of the medial femoral condyl” as unfitting, rated 10% and 10%, respectively with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  Headaches with mixed features were determined to be a Category III condition (conditions that are not separately unfitting and do not contribute to the unfitting condition).  The CI made no further appeals and was medically separated.

CI CONTENTION:  “Please 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:

Reconsideration PEB – Dated 20080225	VA* - (~4 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder, NOS	9400	10%	Major Depression with Panic…	9434-9412	30%**	20090122	
Left Knee	5299-5003	10%	Left Knee PFS	5299-5260	0%*	20081008	
			Residual Left Knee Surgical Scar	7802	0%	20081008	
Headaches	CAT III	Migraine Headaches	8100	0%*	20081008	
Other x 0 (Not In Scope)	Other x 13 	
COMBINED RATING:  20%	COMBINED RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20081030 (most proximate to date of separation [DOS]).  **20091006 VARD

ANALYSIS SUMMARY:

Anxiety Disorder, NOS.  The first record for a mental health (MH) condition was a phone consult dated 28 November 2005 in which the CI requested a referral to MH for an unspecified issue.  This record is not available, but he was referred to cardiology for palpitations (noticeable contractions of the heart).  He was noted to have poor exercise tolerance at the 6 March 2006 appointment, but the evaluation was otherwise unremarkable.  He was then seen in primary care on 6 April 2006 and his symptoms were thought to be possibly related to anxiety and/or panic attacks.  The initial MEB was on 15 November 2006 and accomplished for lower leg pain.  The narrative summary (NARSUM) was silent for MH issues.  The CI was referred for a PEB and placed on several periods of LIMDU.  A commander’s assessment on 1 December 2006 noted that the CI accomplished administrative duties and that he was depressed about his physical condition and future in and out of the Navy.  A PEB dated 10 January 2007 found the CI fit for duty.  A MH addendum dated 23 June 2007 noted that the CI had been initially seen on 24 January 2006 in the MH clinic, but was not seen again until 13 June 2007, 10 days earlier.  He had been placed on medications for anxiety with benefit, but elected to discontinue them.  He had some return in symptoms secondary to concern about his physical problems.  The examiner opined that an MEB would be warranted solely for his MH condition.  On examination, the CI reported mild stress and malaise.  Chronic worry and anxiety were noted.  He was diagnosed with a chronic anxiety disorder, NOS of moderate severity managed on medications.  His level of function was thought to correspond with a 50% level of disability (occupational and social impairment with reduced reliability and productivity).  At the MEB examination on 7 August 2007, the CI reported stress and anxiety.  On the DD Form 2697, Report of Medical Assessment, the CI reported chronic pain in the patella (knee cap) and femur as duty limiting.  No other conditions were cited by the CI as duty limiting and the MH condition was not reported at all.  The examiner noted a normal psychiatric examination.  He was evaluated in the emergency room on 10 September 2007 for a stomach issue (gastritis) which was thought to be aggravated by anxiety and emotional distress.  A second commander’s assessment on 11 December 2007 noted that the CI accomplished administrative duties and that he would be fine in another rating that “required sitting and administrative work.”  No comment was made on the MH condition.  The PEB dated 15 January 2008 initially found the CI fit for duty.  The CI requested reconsideration noting his ongoing problems with anxiety.  A MH memorandum to the PEB dated 19 February 2008 noted ongoing problems with anxiety and that he had been in the emergency room for them several times (once in evidence, above).  It also noted that his MEB had been on hold secondary to potential disciplinary action, but that the charges were dropped.  The examiner also wrote that, on more than one occasion, he had been in contact with the division officer who agreed that the CI was impaired psychologically and his work productivity was decreased with intermittent inability to perform his job.  The Board noted the inconsistency between this statement and the commander’s assessment from a month earlier.  The Board also noted that the CI was placed on LIMDU four times.  The first was for chest pain during the cardiology evaluation in April 2006.  The others were all for the left knee condition.  At the general VA Compensation and Pension (C&P) examination was performed on 8 October 2008, 4 months after separation, the CI reported problems with “nerves and depression.”  He was noted to have some anxiety on the examination, but the MH evaluation was otherwise normal.  The MH C&P was accomplished on 22 January 2009, 8 months after separation.  The CI denied any behavioral problems in high school, inconsistent with the history provided to the MEB MH examiner.  He did report the felony conviction for theft.  He reported depression towards the end of service and that he missed work, called in sick frequently, went home not feeling well and was written up for tardiness or failure to report.  The Board noted that this is not consistent with the recommendation of the commander that the CI be cross trained into an administrative position.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the anxiety condition at 10% using the code 9400 (generalized anxiety disorder).  The VA did not address a MH condition on either the 3 May 2007 VARD, which was done while still on active duty, or the 30 October 2008 VARD, 6 months after separation.  A third VARD, dated 6 October 2009, rated the CI at 30% for depression with panic disorder effective the date of separation and using the VA MH C&P addressed above using the code 9434-9412 (major depressive disorder-panic disorder and/or agoraphobia).  The Board noted that that the history provided by the CI to the VA examiner was inconsistent with the remainder of the record, reducing the probative value of this evaluation.  Also, while the MEB MH provider indicated that the CI was significantly impaired from the anxiety condition, the commander cited only the knee condition and recommended cross training into an administrative position.  The CI was not placed on LIMDU for the MH condition and it was only added for consideration upon appeal by the CI.  The number of records for the anxiety in the 2 years leading up to separation was scant, especially when compared to the number of visits for the knee condition.  The objective evidence does not support the presence of a significant impairment from a MH condition at separation.

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 anxiety disorder condition.

Left Knee.  The first record in evidence for the left knee was a primary care note dated 17 March 2006 which noted left knee pain and a normal examination.  X-rays were normal.  A magnetic resonance imaging (MRI) report dated 23 May 2006 documented that the CI had a painful kneecap to pressure and noted that the MRI showed a lateral meniscus tear which is the outside cartilage cushion for the knee.  An orthopedic examination noted instability of the kneecap which was surgically repaired on 10 June 2006.  The meniscal tears were not seen at surgery.  The CI continued to have pain after surgery and had hardware removal and scar debridement on 15 June 2007 as well as a cartilage transfer.  The orthopedic addendum to the NARSUM was dated 11 August 2007, 2 months after surgery and 10 months prior to separation.  The examiner noted that the recovery of function and reduction of pain were both slower than anticipated.  On examination, he had full extension with flexion limited by pain to 110 degrees.  His quadriceps tone was poor.  However, he was expected to make a full recovery with near complete resolution of pain and a return to full function.  The commander noted on 11 December 2007 that the CI still used crutches if standing for long periods or walking “distances.”  At the VA C&P examination performed on 8 October 2008, 4 months after separation, the CI reported ongoing pain and lack of endurance, but denied instability or locking.  The posture and gait were normal.  Mild crepitus was present (an abnormal sensation to palpation), but no instability, swelling or deformity was present.  The range-of-motion was normal and did not decrease with repetition.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee at 10% using the analogous code 5299-5003 (degenerative arthritis).  The Board determined that the adjudication by the PEB was correct based on the information available to it.  The VA rated the knee at 0% based on the C&P and using the analogous code 5299-5260 (limitation of flexion).  The Board noted that the VA examination was further from surgery and more proximate to separation.  It was assigned a higher probative value and supports a 0% rating.  However, the Board does not recommend a combined rating lower than that assigned by the PEB.  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 left knee condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the “headaches with mixed features” condition was 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 headache condition was not listed in the LIMDU condition or implicated in the commander’s statement.  However, the treating neurologist recommended that it be considered by the MEB.  It was reviewed and considered by the Board.  There was not a preponderance of evidence from the record to overcome the PEB adjudication.  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 headache condition and so no additional disability rating is 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 anxiety condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended headache condition, 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.

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 20140627, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 2 Dec 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXXXXXXX former USN  
- XXXXXXXXXXXXXXXXXXXX former USN 
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN

						  XXXXXXXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)