RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04337
BRANCH OF SERVICE:  Army	BOARD DATE:  20150629
SEPARATION DATE:  20060120

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E-4 (Infantryman) medically separated for right chest wall pain, right shoulder pain and posttraumatic stress disorder (PTSD).  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent U3/S4 profile and referred for a Medical Evaluation Board (MEB).   The “right intercostal neuralgia,” “right shoulder pain and acromioclavicular arthrosis,” and “post- traumatic stress disorder,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (personality disorder) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “right shoulder pain,” “right chest wall pain,” as unfitting, rated 0% and 0%, with likely application of the Department of Defense Instruction (DoDI) 1332.39/Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition(s) were determined to be not unfitting.  The CI appealed to the Formal PEB (FPEB), which changed the PEB findings and ratings to right chest wall pain, right shoulder pain and PTSD as unfitting and rated 10%, 0%, and 0% respectively and was medically separated.

CI CONTENTION:  The PEB made an error by not placing him on the TDRL and not granting at least 30% for SPC B--’s PTSD disability.  The PEB also erred in not rating XXXXXXXXXXXXXXXXXX’s shoulder at least 10%.  We request that the PDBR recommend that disability ratings provided by the PEB should be changed to at least 30% disabled due to PTSD and 10% for right shoulder injury.”

 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.

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:

FPEB – Dated 20051130	VA* - (~10 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Chest Wall Pain	5099-5003	10%	Chest Scars, Left and Right Lateral Thoracic Segments, residual of chest tubes	7805	0%	20061101	
Right Shoulder Pain	5099-5003	0%	Right Shoulder Dislocation w/Pain and Limited Motion	5201	10%	20061101	
PTSD	9411	0%	PTSD	9411	30%	20061101	
Other x 0 (Not In Scope)	Other x 5 	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20061218 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Chest Wall Pain Condition.  The CI sustained shrapnel injury to his right chest from an improvised explosive device (IED) blast in October 2004 while deployed to Iraq.  He was initially evaluated at the combat support hospital where his right chest wall was irrigated and debrided and exploratory laparotomy conducted to evaluate the integrity of his diaphragm.  He was medevaced out of theater with a right chest tube in place, intubated and admitted to the intensive care unit at Landsthul.  He was diagnosed with complicated open wound of the chest, and pneumothorax of the lung.  Once his condition stabilized, the CI was transferred to a U.S. hospital for further evaluation and management.  Follow-up radiographs dated 24 January 2005 documented no significant findings.  Treatment entry dated 28 April 2005 documented the report of right chest wall pain and numbness.  The CI was treated with narcotics and wore an anesthesia patch over the chest wall.  He underwent consultation and treatment with pain management and noted limited benefit.  Consultation to the MEB on 24 August 2005 for evaluation of the right shoulder, notes the CI had received physical therapy and medications for his chest wall pain, but his pain continued to remain at 3-4/10.  Focused physical examination recorded the presence of soft tissue defects off of the right scapula and his chest wall, without evidence of inflammation or infection.  The narrative summary (NARSUM), dated 4 October 2005 documented right chest wall pain that was described as aching and constant with intensity of 5/10 on the pain scale.  The VA Compensation and Pension (C&P) general examination noted the presence of three scars in the right chest wall that were not tender or raised, and demonstrated no evidence of inflammation, edema, or keloid formation.

The Board directed attention to its rating recommendation based on the above evidence.  As noted below, the Board placed the CI on a constructive Temporary Disability Retired List (TDRL) period of 6 months for his PTSD; therefore, the TDRL period applies to the right chest wall pain condition as well.  The Board noted that during the constructive TDRL period the VA examination documented non-tender scars, and found no pathology in the right chest wall.  The IPEB rated the condition analogously using the 5003 code (Degenerative arthritis) at 0% for “moderate/frequent” pain (pain policy).  The FPEB increased the rating to 10% under the same analogous coding.  The VA did not rate the chest wall pain condition.  The higher rating of 20% under the 5003 code requires incapacitating episodes or radiographic evidence of involvement with two or more major joints; not supported by the evidence.  Pain was the sole complaint related to this condition.  The Board considered the 5521 code (Group XXI-thoracic muscle group); however, noted there was insufficient evidence to support the higher rating of 20% for pain of moderate severity to severe.  There were no other applicable codes to consider.  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 determination for the right chest wall pain condition at TDRL placement and at permanent separation.

Right Shoulder Pain Condition.  The NARSUM noted the CI reported he originally injured his right shoulder while in Korea in March 2004.  He was participating in a training excerise and landed on his right shoulder, separating the acromioclavicular (AC) joint.  He was treated with a sling for a month and had done reasonably well afterwards, although he noted some discomfort if he “slept on it or overused it.”  He was able to deploy to Iraq in October 2004 and was involved in IED explosion noted above.  His shoulder was not injured in that event; however, he noted that after he returned to the US and began his duties as a bus driver, he started to notice problems with the shoulder.  Radiographs dated 8 February 2005 showed right AC joint widening and irregularities.  A magnetic resonance imaging performed on 28 March 2005 demonstrated moderate AC joint hypertrophic changes and mild subacromial bursitis.  A MEB consultation examination dated 24 August 2005 recorded normal muscle strength in the upper extremity, and noted range-of-motion (ROM) forward flexion “lacks 20 degrees on the right and external rotation…lacks 10 degrees on the right.”  Cross arm sign was positive (joint arthritis, painful motion), but shoulder exam was otherwise stable.  At the NARSUM on 4 October 2005, the CI indicated he continued to experience pain in his right shoulder, described as aching and throbbing.  He was in pain most of the time with intensity on average of 3-4/10.  His pain improved with rest and with medications.  The examiner referenced the physical examination for the MEB performed on 7 September 2005 that recorded ROM forward flexion to 140 (180) degrees and abduction to 150 (180), and pain elicited on crossover test, but otherwise normal right shoulder examination.  The examiner noted that the CI could only walk approximately a mile and jog or run only 100 feet before the shoulder begins to ache.  He could carry approximately 15 pounds to 15 feet distance, but could not perform any overhead activity or wear any kind of weighted clothing over his shoulder.  The VA C&P examination conducted on 1 November 2006 recorded the absence of signs of inflammation, shoulder instability and muscle atrophy.  Crepitation was noted with all ROM movements and forward flexion was documented at 90 degrees without pain, 90-160 degrees with pain; abduction to 110 degrees without pain and to 160 degrees with pain.  The CI indicated his shoulder pain had occasionally caused some discomfort at work while lifting, but otherwise had not interfered with normal daily routine activities.

The Board directed attention to its rating recommendation based on the above evidence.  As noted below, the Board placed the CI on a constructive TDRL period of 6 months for his PTSD; therefore, the TDRL period applies to the right shoulder condition as well.  The Board noted that during the constructive TDRL period the VA examination documented pain on motion and non-compensable reduction in ROM.  The exam supported a 10% rating.  The IPEB, with likely application of the pain policy, rated the right shoulder condition 0%, coded analogously 5099-5003(degenerative arthritis) for pain, moderate, and intermittent.  The FPEB agreed with the IPEB.  The PEB coded the condition of right shoulder pain under the analogous coding of 5099-5003 and assigned a 0% rating for arthritis of one joint.  The VA coded the condition 5201 (for painful motion), assigned a 10% rating.  A 10% rating under the 5003 code requires demonstration of limitation of motion or satisfactory evidence of painful motion.  In this case, painful motion was described in the MEB exam referenced above and at the VA C&P exam.  The Board agreed that the record sufficiently documented pain in the right shoulder, and the preponderance of evidence did support a compensable rating under code 5003.  After deliberation, the Board concluded the record in evidence supported the minimal compensable rating for right shoulder pain coded 5099-5003, IAW VASRD §4.59.  The Board noted the absence of evidence for a compensable rating based on limitation of motion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right shoulder pain condition at TDRL placement and at permanent separation.

PTSD Condition.  As recorded above, the CI was medevaced from Iraq secondary to injuries sustained after IED explosion.  There were no reports of a head injury or loss of consciousness.  The psychiatric NARSUM dated 16 September 2005, approximately 4 months prior to separation, noted that upon re-deployment the CI experienced symptoms consistent with the diagnosis of PTSD (nightmares, insomnia, irritability, flashbacks, exaggerated startle response), and was treated with psychotropic medications.  His sleep disturbance responded robustly to his medication (7-8 hours per night); however, without medication he slept poorly.  The CI noted that he had no interest in participating in talk therapy.  The NARSUM noted that the CI underwent psychological testing in June 2005 to evaluate his report of decreased concentration following the blast exposure, PTSD diagnosis, and to rule out cognitive disorder.  The results of the test were deemed invalid due to “patient’s exaggeration and/or outright malingering.”  The examiner stated there was absence of clinical evidence to support the PTSD diagnosis, or cognitive disorder.  Diagnoses recorded were all on Axis II; sadistic personality disorder, schizoid personality disorder, and “a strong possibility by history and current complaints-antisocial personality disorder.”  Mental status examination (MSE) at the psychiatry NARSUM, documented dysphoric mood and affect and increased psychomotor activity exhibited throughout the examination.  The examiner indicated that the CI was difficult to engage, “He is a man of few words and seemed to have some difficulty in describing events, thoughts, and feelings,” opined to be possibly related to avoidance behaviors of PTSD, or to the innate inability to express or recognize emotions.  There was no evidence of psychosis, impairment in judgment or thinking, and he denied suicidal/homicidal ideation.  The psychiatrist diagnosed PTSD, moderate, and noted moderate degree of impairment for social and industrial adaptability.  An Axis II diagnosis of personality disorder NOS, with antisocial traits were noted, and a Global Assessment of Functioning (GAF) score of 60 (borderline moderate-mild) was assessed.  The examiner opined that the Axis II diagnosis was not contributing to the CI’s clinical presentation.  At the VA C&P psychiatric evaluation, approximately 10 months after separation, the CI noted that he has worked full-time since February 2006 (within a month of separation) at FedEx, and had not missed any time from work due to physical or MH problems.  He was in the process of a divorce that he initiated, and had been in another relationship for several months.  He enjoyed spending time with his friends and working on his car and motorcycle.  The CI noted that since February 2006 he has received MH treatment from the local VA and continued to take medication for PTSD symptoms and insomnia.  His response to medication for insomnia was good; however, he continued to have irritability, outbursts of anger, difficulty concentrating, hypervigilance and exaggerated startle response.  MSE noted the CI was difficult to engage, had increased psychomotor activity, constricted affect, although he stated his mood was “fine,” and there was no evidence of a formal thought disorder, or psychosis.  He denied suicidal and homicidal thoughts, and his judgment was not impaired.  The psychiatrist diagnosed PTSD, chronic, assigned a GAF of 65 (mild), and opined that his PTSD symptoms “would cause significant reduced productivity and interference in his ability to interact effectively and work efficiently.”

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the Disability Evaluation System (DES).  The evidence of the available records shows the diagnosis of PTSD as the single ratable diagnosis rendered during DES processing.  The Board agreed there were no changes in diagnoses and therefore, this applicant did not meet the inclusion criteria in the Terms of Reference of the Mental Health Review Project.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition of PTSD coded 9411 and assigned a 0% disability rating; the CI appealed and the FPEB upheld the IPEB’s decision.  The VA assigned a rating of 30% for the condition of PTSD.  The Board noted the PEB documented that 10A/C (combat-related) was awarded, and PTSD was related to conflict in Iraq.  Therefore, the Board in compliance with the provisions of VASRD §4.129 (mental disorders due to traumatic stress) must recommend placement of the CI on a period of constructive TDRL with a minimum rating of 50% IAW §4.129 with reassessment after 6 months.  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.”  Available treatment records prior to constructive TDRL period recorded no psychiatric hospitalizations, no recorded visit to the emergency room (ER) for MH issues, and no evidence of impairment in judgment or thinking.  His MSE at the NARSUM and VA were essentially normal without documentation of impairment in thinking or judgment.  The NARSUM examiner documented moderate impairment, but noted he had improved with treatment.  The psychological evaluation could not substantiate an Axis I diagnosis, and therefore, was unable to assess a GAF.  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 30%, 10% and 0% disability rating.  The 30% disability rating requires evidence of “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) due to symptoms such as depressed mood, anxiety, panic attacks, chronic sleep impairment, and mild memory loss.”  The VA C&P examination was the sole source document in evidence most proximal to constructive TDRL removal.  The C&P recorded a GAF of 65 consistent with mild degree of impairment for social and occupational functioning; however, documented that his symptoms “would cause reduced productivity,” and difficulty with interpersonal functioning.  At the time of the C&P examination, the CI was working full-time for approximately 9 months in a job that required interaction with the public.  He had not lost time from work and was socially engaged with friends and in a relationship.  The CI noted that his medication was effective in treating his insomnia; however, noted that he remained symptomatic, but continued to work in a job with no reported incidents or difficulties secondary to mental health symptoms.  All Board members agreed that the 30% disability level was not supported by the evidence.  After careful deliberation, Board members agreed that the totality of evidence best reflected the 10% level of disability.  After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 10% permanent disability rating for the condition of PTSD.

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.  As discussed above, PEB reliance on the USAPDA pain policy AR 635-40 DoDI 1332.39 for rating right chest wall and right shoulder pain was operant in this case and the condition was adjudicated independently of that policy/ instruction by this Board.  In the matter of the right chest wall pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right shoulder pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.59.  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 10% permanent rating IAW VASRD §4.130.  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 70% for a period of 6 months IAW §4.129, and then permanently retired by reason of physical disability as indicated below.

UNFITTING CONDITION	VASRD CODE	TDRL RATING	PERMANENT
RATING	
Right Chest Wall Pain	5099-5003	10%	10%	
Right Shoulder Pain	5099-5003	10%	10%	
Post- Traumatic Stress Disorder	9411	50%	10%	
	COMBINED	70%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141119, 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 AR20160003521 (PD201404337)

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 
70% 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 70% 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:

CF: 
(  ) DoD PDBR
(  ) D