RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04153
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20031215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Administrative Specialist, medically separated for “major depressive disorder, manifested by depressed mood, poor self-esteem, crying spells, and anhedonia…,” and “chronic pain low back and left knee…,” rated 10% and 10% respectively, with a combined disability rating of 20%.  

CI CONTENTION:  His knee and back conditions were combined and should have been rated separately.  He was given higher ratings for his PEB conditions by the VA, and he was not rated for his elbow condition, and not evaluated for his diabetes and seizure 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.  In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  

RATING COMPARISON:  

SERVICE PEB - 20031006	VARD – 20050308 / 20050506	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Major Depressive Disorder	9434	30%	20041004 	
Chronic Pain Low Back and Left Knee	5099-5003	10%	Left Knee Osteoarthritis	5010-5261	30%	20041012	
			Spondylosis L4-5 and L5-S1	5299-5239	20%	20041012	
Ulnar Neuropraxia	Not Unfitting	Ulnar Neuropraxia	8515	10%	20050308	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Major Depressive Disorder (MDD).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s difficulties with depressive symptoms were noted in treatment records beginning in 2000 due to marital and legal problems in Germany.  The CI was psychiatrically hospitalized and medically evacuated to CONUS with a diagnosis of Adjustment Disorder.  The CI was returned to duty with multiple psychoactive medications and medication adjustments by mental health specialists.  It is not clear from the record when the diagnosis progressed to MDD.  The CI was assigned to the medical hold company in January 2001, apparently due to his knee condition.  Despite treatment with medication and psychotherapy, the CI’s MDD condition did not improve sufficiently to meet the requirements of the CI’s military specialty and he was referred for an MEB.  

At the MEB examination (recorded on DD Form 2807 Report of Medical History and DD Form 2808 Report of Medical Examination) dated May 2003, 7 months prior to separation, the CI reported “anxiety and panic attacks constantly” and seeing mental health regularly.  

The MEB psychiatric NARSUM addendum examination on 3 June 2003, 6 months prior to separation, noted the CI had been suffering from significant affective symptomatology for over 2 years, with current symptoms of depressed mood, poor self-esteem, crying spells, decreased energy, irritability, disturbed sleep and anhedonia.  The CI was on Paxil and was seeing mental health about every month for the last 2 years.  On mental status examination (MSE) his mood was “OK” and the affect was restricted and tearful at times.  There was no suicidal ideation, delusions, hallucinations or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  Insight and judgement were fair and memory was grossly intact.  The psychiatrist diagnosed MDD and indicated that there was “marked” impairment for military duty and “definite” impairment for social and industrial adaptability.  

The NARSUM dated 2 September 2003, 3 months prior to separation, noted complaints of depression.  The NARSUM referred to the psychiatric addendum and noted two hospitalizations and continued use of medication.  The diagnosis was “major depressive disorder, S&I definite” and the present condition and functional status was “(the CI’s) depression prevents weapons access or firing and negatively effects duty performance.”  Profile was S3 and restrictions included no weapons access.  The medical hold company commander’s statement implicated inability to carry or fire a weapon and limited physical training, without citing specifics.  

At the 12 October 2004 VA Compensation and Pension (C&P) evaluation, performed 10 months after separation, the CI’s symptoms were constant and included sad mood, crying easily, feeling anxious and nervous, decreased interest, increased appetite, and feeling hopeless at times with suicidal ideation in the past, and insomnia and nightmares.  “The ability to perform daily functions during remission/partial remission is limited at times due to severity of symptoms.”  The CI was employed full-time in administration and had poor relationships with co-workers and fair to poor relationships with his supervisor.  He was “off work for several episodes of missing 2 days because of stress and depression.”  

On mental status examination (MSE) “affect and mood are abnormal with depressed mood, although the depression does not affect his ability to function independently and effectively.”  Panic attacks were absent.  Memory was impaired and the degree was mild-such as forgetting names, directions, recent events. There were passive thoughts of death with no plan or intent, and homicidal ideation was absent.  There was delusions, hallucinations or other symptoms suggestive of psychosis, speech disturbance, or other abnormality.  The Global Assessment of Functioning was 60 (in the moderate symptom range).  The diagnosis was MDD, moderate.  The psychiatrist’s remarks were “Mentally, he occasionally has some interference in performing activities of daily living because of avoidance of others, shuts down.  He has difficulty establishing and maintaining effective work and social relationships because he avoids others, and is withdrawn.”  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the MDD condition 10%, coded 9434 (MDD), citing AR 635-40 and that the CI’s “impairment for social and industrial adaptability is more accurately described as mild, not definite.”  In response to the CI’s PEB rebuttal, the US Army Physical Disability Agency (USAPDA) stated that “Per your unit First Sergeant your depression has not had a major impact on your ability to perform administrative duties.  Your records indicate you have an adequate social adjustment, your insight and judgment is fair and your memory is intact.”  The VA rated the MDD condition 30%, coded 9434, based on the VA C&P examination 10 months after separation, citing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal).  

The Board considered whether the provisions of VASRD §4.129 (Mental disorders due to traumatic stress) were applicable.  The Board noted that there was no traumatic event causing the unfitting mental health condition and therefore concluded that application of VASRD §4.129 was not appropriate in this case.  The MEB forwarded the mental health diagnoses of “major depressive disorder” and the PEB rated “major depressive disorder.”  This case therefore does not meet the inclusion criteria in the Terms of Reference of the Mental Health Diagnosis Review Project.  

The Board considered whether the evidence at the time of separation supported a rating higher than the 10% rating adjudicated by the PEB.  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 psychiatrist and NARSUM physician both indicated the CI’s degree of psychiatric impairment for social and industrial adaptability was “definite;” the CI had been in a protected work environment of medical hold, and the VA examination indicated post-separation missed work due to the mental health condition.  

The Board noted that there was support for depressed moods, chronic sleep impairment, and panic attacks (DD 2808) and that all examinations proximate to separation indicated depressive symptoms were greater than mild or only during periods of significant stress, and that symptoms were not controlled by medication.  The unit First Sergeant’s indication of no “major impact on ability to perform administrative duties” was in the context of the CI being in a medical hold company which was considered a protected work environment, and also did not discuss “moderate” impact or “occasional inability” to perform duties.  All Board members agreed the CI’s condition at the time of separation supported the higher 30% disability rating, and that his level of impairment was better described as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily).  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the MDD condition, coded 9434.  

Chronic Pain Low Back and Left Knee.  The PEB combined the low back and left knee conditions as a single unfitting condition coded analogously to 5003 (arthritis, degenerative) and rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The Board also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the low back and left knee conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

Left knee:  According to STRs and the MEB NARSUM, the CI’s left knee condition began in 1998.  His first knee surgery was in 1998 (medial plica and chondroplasty).  Following multiple surgeries including chondral grafting, further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “severe chondromalacia of the knee, failed multiple surgical attempts,” for PEB adjudication.  

The orthopedic MEB NARSUM examination on 10 May 2003, 7 months prior to separation, noted complaints of left knee pain, worse with activities of walking or full extension.  He needed a knee brace and cane in order to perform activities of daily living, and was taking non-narcotic, and occasional narcotic, pain medication.  Physical examination showed an antalgic gait; 1-A Lachman’s (slight posterior laxity with a firm end-point), pain with patellar grind, and painful range of motion (ROM) of 0-140 degrees (normal).  The left leg was neurovascularly intact with normal strength and sensation.  Diagnostic imaging showed arthritic and surgical changes.  The examiner stated that the CI “requires a knee brace for ambulation” and the diagnosis was “severe chondromalacia, left, knee with failure after chondral drilling, OATS procedure, and autologous chondral implantation.”  

The MEB NARSUM examination on 2 September 2003, 3 months prior to separation, noted complaints of left knee pain with required use of a brace and cane for routine ambulation.  Physical examination showed the left knee had a 1-A Lachman's, ROM of 0-140 degrees, and no laxity.  The CI had an antalgic gait and wore a brace on the left knee.  There was a positive patella grind and significant crepitus with facet pain.  

At the 12 October 2004 C&P evaluation, performed 10 months after separation, the CI reported left knee pain with 3 days of incapacitation in the past year.  X-rays showed arthritic changes.  Physical examination showed painful motion of the left knee with flexion of 120 degrees (normal 140) and extension to 20 degrees (normal 0).  Strength, sensory, and reflex testing was normal.  

Low Back:  According to STRs and the MEB NARSUM, the CI’s low back pain condition was chronic and was associated with compensating for his left knee condition, abnormal gait and use of a cane.  The MEB forwarded “non-radicular back pain with degenerative joint disease…” for PEB adjudication.  X-rays showed facet joint degenerative joint disease.  

The MEB NARSUM examination on 2 September 2003, 3 months prior to separation, noted complaints of low back pain.  Physical examination showed tenderness in the lumbosacral area with full ROM, normal heel/toe walk; and sensory, motor, and reflex examinations.  The examiner indicated that the back condition interfered with wear of a back pack or lifting more than 20 pounds.  The back condition, along with the knee condition, also prevented completion of an Army physical fitness test.  

At the 12 October 2004 C&P evaluation, performed 10 months after separation, the CI reported low back pain since 2000.  Back pain was constant, traveled to the legs, and was worsened by activity.  X-rays showed arthritic changes with spondylosis at L4-5 and L5-S1.  Physical examination showed thoracolumbar spine ROM was painful and limited to flexion of 55 degrees (normal 90) and combined 190 degrees (normal 240).  Provocative testing for radicular symptoms was negative, and there was no muscle spasm or tenderness.  

The Board directed attention to its fitness and rating recommendation based on the above evidence.  In this case, both the left knee and the back conditions were considered to fail retention standards, both were implicated by the NARSUM and in the commander’s statement, and both were profiled.  Board members agreed that the evidence reasonably justified that the functional limitations of both the left knee and the back condition contributed to the CI’s inability to perform his military duties and accordingly a separate disability rating is recommended for each.  The Board then considered its rating recommendation for the unfitting left knee and the unfitting low back conditions at the time of separation.  

The PEB rated the chronic pain low back and left knee condition 10%, coded 5099-5003 (arthritis, degenerative), citing the USAPDA pain policy as discussed above.  The VA rated the left knee condition (Left Knee Osteoarthritis) 30% coded 5010-5261 (traumatic arthritis - Leg, limitation of extension) citing extension limited to 20 degrees and rated the back condition (Spondylosis L4-5 and L5-S1) 20% coded 5299-5239 (Spondylolisthesis or segmental instability), citing forward flexion not greater than 60 degrees and ROM criteria; both based on the VA C&P examination 10 months after separation.  The Board adjudged that the NARSUM and NARSUM addendum examinations had the highest probative value for rating at separation, and that the VA examination was likely post-separation worsening.  

Regarding the left knee rating, there was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  Although examinations proximate to separation demonstrated a positive 1-A Lachman’s (laxity), there were insufficient symptoms of recurrent subluxation or instability for possible dual rating under code 5257 (Knee, other impairment).  There was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259) to support a rating under the respective codes.  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  

Regarding the low back pain rating, although there was insufficient limitation in ROM to support a minimum rating, the Board agreed a 10% rating was justified for the presence of tenderness on the NARSUM examination.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separate unfit determination with a disability rating of 10% for the left knee condition, coded 5099-5003, and a separate unfit determination with a disability rating of 10% for the low back condition, coded 5299-5242.  

Contended PEB Conditions:  Ulnar Neuropraxia.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the MDD condition, the Board unanimously recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  In the matter of the chronic pain low back and left knee conditions, the Board unanimously recommends that it be adjudicated as two separate conditions:  In the matter of the left knee condition, the Board unanimously recommends a separately unfit determination with a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the low back condition, the Board unanimously recommends a separately unfit determination with a disability rating of 10%, coded 5299-5242 (Degenerative arthritis of the spine) IAW VASRD §4.71a.  In the matter of the contended ulnar neuropraxia condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Major Depressive Disorder	9434	30%	
Chronic Pain Low Back and Left Knee	Left Knee Pain	5099-5003	10%	
	Low Back Pain	5299-5242	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated, 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 AR20160018251 (PD201404153)

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 re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

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 permanent disability retirement 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 date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	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:

			       
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA