RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00228
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20080101

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Reserve E3, Steelworker, medically separated for “major depression” and “right wrist pain,” rated 10% and 10% respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI requested consideration of 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 - 20071128	VARD - 20080605	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depression…	9434	10%	Major Depressive Disorder	9434	10%	20080131	
Anxiety Disorder…	Category II	No VA Placement	
Right Wrist Pain	5099-5003	10%	Right Wrist, Status Post Bone Excision, Dorsum	7819-5215	10%	20080128	
Other Joint Derangement, Not Elsewhere Classified, Lower Leg	PEB did not Address	Lateral Collateral Ligament Laxity and Chondromalacia Patellae, Left Knee	5257	10%	20080128	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Major Depression Disorder.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s MH condition appeared to manifest after he returned in April 2006 from deployment.  He self-reported becoming highly emotional with anger outbursts, spontaneous crying, sadness, difficulty sleeping, marital discord, anxiety, and increased alcohol intake.  Psychiatry diagnosed him with major depressive disorder (MDD), single episode rule out anxiety disorder, alcohol abuse, and partner relationship problems.  Medication and group classes remained his mainstay of treatment without psychiatric hospitalization.  Further psychiatric treatment did not result in symptom improvement sufficient to allow unrestricted military duty.  The MEB forwarded “major depressive disorder, recurrent episode, severe, specified as with psychotic behavior” and “anxiety state, unspecified” for PEB adjudication.    

At the MEB psychiatric evaluation performed on 7 May 2007, 10 months prior to separation, the CI reported a wide variety of fleeting symptoms to include depressed moods, irritability, decreased libido, tearfulness, guilt, hypervigilance and avoidance of crowds.  Although he was not involved in any traumatic events while deployed, he has started to have nightmares about being captured by insurgents.  “He reports that he is in constant pain from his wrist and knee, and this keeps him highly irritable.”  His mental status examination (MSE) revealed a depressed mood with an appropriate corresponding affect.  His psychomotor activity (purposeless movements; fidgeting or repetitive movements) was markedly increased.  There were no flights of ideas, looseness of association, hallucinations, or abnormal cognitive function.  There was no homicidal or suicidal ideation, plan, or intent. 

At the VA Compensation and Pension (C&P) examination performed on 31 January 2008, 1 month after separation, the CI endorsed having sleep disturbance with violent nightmares and related daytime fatigue, marital duress, socially isolative tendencies, increased alcohol use, and  decreased interest in prior activities and involvements, cognitive symptoms of inattention, loss of concentration, short-term memory dysfunction, and ruminations about experiences while deployed as well as limited motivation for exercising and activities of daily living.  A detailed MSE revealed a depressed and anxious mood as well as a sad affect which was assessed as having a “moderate impact” on social or occupational functioning.  Mild short-term memory loss was assessed to have a “mild” impact on social and occupational functioning.  Other parameters such as thought process, communication skills, behavior, personal hygiene, orientation, impulse control, and speech were intact or within normal limits.  There were no symptoms of delusions or hallucinations or ideations of suicide and or homicide.  The examiner noted that the CI’s condition required continuous medication.  

The Board directed attention to its rating recommendation based on the above evidence.  Disability associated with any psychiatric condition, regardless of the diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130 general rating formula for MH conditions.  Both the PEB and VA applied the clinically appropriate code 9434 (MDD) and arrived at a 10% rating IAW VASRD §4.130.  The PEB cited no specific reasoning for its rating whereas the VA cited continuous medication use for its rating.

The Board first considered if the definition of VASRD §4.129 was met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event.”  Board members agreed that although some minor contribution of military-related stressors to the psychiatric condition may have been present subsequent to his deployment, it predominantly was a combination of chronic physical pain, financial stress, and marital discord/separation that brought forth the mental health (MH) diagnosis; therefore, the requisite §4.129 link that the condition occurred “as a result of a highly stressful event” was not adequately satisfied.  The Board therefore will consider only the VASRD §4.130 impairment present near separation for a single rating recommendation.  Members then considered if there was evidence for a §4.130 rating higher than PEB’s 10% at time of separation.  All Board members agreed that the VA examination performed within 1 month of separation was most probative for a rating impairment.  The MSE findings of memory loss as well as depressed mood with anxiety resulting in a moderate adverse impact upon social and occupational functioning would clearly be supported at the 30% impairment level.  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.  The PEB also listed anxiety disorder; not otherwise specified (NOS) as a related Category II condition (a condition that contributed to the primary unfitting condition but was not separately ratable).  The impairment from the anxiety disorder was properly subsumed under the overall rating for the MDD IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited). 

Right Wrist Pain.  According to STR and the MEB NARSUM, the CI developed a painful bony mass near the right wrist (adjacent to the base of the thumb) in March 2006.  In August 2006, the CI underwent surgical excision of the mass which was diagnosed as a ganglion cyst.  Despite surgical excision as well as occupational therapy (OT), his condition did not improve sufficiently to allow unrestricted military duty.  The MEB forwarded “pain in joint involving forearm” for PEB adjudication.  

At the MEB NARSUM examination on 8 March 2007, the CI complained of right hand/wrist pain and weakness.  His PE revealed decreased and painful motion of the right wrist.  His right hand and finger grip strength were significantly decreased; noted by physical therapy (PT) as, “The right wrist has 80% less strength than left.”  The provider estimated as to the CI’s prognosis in that there would be right wrist functional limitations after repetitive use of a “severe” level of intensity; mostly manifested by pain.  At the probative VA examination the CI endorsed pain, weakness, stiffness, and swelling diffusely over the wrist and right hand.  His PE revealed right wrist tenderness, as well as painful and limited motion.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right wrist condition at 10% analogously coded under 5003 (degenerative arthritis); whereas the VA rated the same condition at 10% utilizing the dual code of 7819-5215 (benign skin neoplasm and wrist, limited motion).  Absent ankylosis, the sole rating for wrist ROM (either extremity) is 10%; the same if utilizing painful motion IAW VASRD 4.59.  Secondary to the severe level of weakness as displayed by the loss of grip and pinch strength coupled with the CI’s history of surgical intervention, the Board also considered rating under muscle code 5309 “Group IX” depicting those intricate muscles of the wrist and hand involved in strong grasping movements.  However, pursuant to the special VASRD “note” accompanying 5309 of…”Rate limitation of motion, minimum of 10%”, would be of no additional benefit than the current PEB rating.  Therefore, 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’s adjudication for the right wrist condition.

Contended PEB Condition: Other Joint Derangement…Lower Leg.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  However, in this case, the PEB did not determine that the condition was not unfitting; the PEB did not specifically address it and therefore did not adjudicate it.  The contended condition was not implicated in the commander’s statement or judged to fail retention standards.  However, the condition was profiled and there was performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  According to STR, the CI fell off a vehicle and twisted his left knee in November 2005.  X-rays did not reveal any bony abnormality, although an MRI revealed a meniscal tear on the inner side of the left knee.  Historical STR encounters revealed the inability to perform shallow squats due to left knee pain as well as subjective reporting of the left knee “catches occasionally with walking, and especially when crosses leg”.  Despite PT, medications, and restrictions, his condition did not improve sufficiently to allow unrestricted military duty.  The last STR contained in the case file that listed a lower extremity condition was dated 5 October 2006 and corresponded with a temporary profile listing the diagnosis of “left knee pain/illio-tibial band syndrome” with an expiration date of 5 January 2007.  A permanent profile listing “left knee pain” was issued on 17 November 2006 (7 weeks prior to the expiration date of the temporary profile).  

On 15 May 2007, the MEB forwarded “left knee injury” as meeting retention standards and the CI signed in agreement with the Board’s findings 3 days later on 18 May 2007.  However, on the same day (18 May 2007), an “Abbreviated Medical Evaluation Board Report” (NAVMED 6100) placed the CI in a limited duty (LIMDU) status with 3 diagnoses (not including a lower extremity condition) that were referred to a PEB.  The LIMDU referral also documented “please refer to DA Form 3349 [profile form] for limitations”, without citing a specific date of the said restrictions.  

The NARSUM (9 months prior to separation) did not comment on a lower extremity condition, whereas the VA C&P examination (1 month after separation) did make such notation.  The CI endorsed daily 5/10 pain about the left knee; aggravated by kneeling, jogging, maneuvering stairs, or sporting activities.  He additionally endorsed weakness, stiffness, and give-way, but no fatigability, locking, heat, or redness.  His VA PE revealed full, but painful motion of the left knee.  Kneecap tenderness and mild crepitus was present as well as a 5 degree laxity of the lateral collateral ligament (considered by some authorities as a normal degree of lateral translation); all other joint stability exams were negative.  “The condition is such that it slows him [the CI] down at work, walking, delivering supplies to different houses.”  The provider also estimated that there would be a left knee functional limitation after repetitive use of “moderate severity” mostly manifested by pain.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB did not address the knee condition.  The VA rated the left knee condition at 10%, coded 5257 (knee; other impairment).  Board members extensively deliberated this case with regards to a fitness determination of the lower leg condition.  

This case brought forth both clear and un-clear evidence in the event timeline regarding a lower extremity condition.  Clearly, the left knee pain condition was profiled 6 months prior to the abbreviated medical board which placed the CI on a LIMDU status.  The seemingly unclear evidence was that Boards’ reference back to the permanent profile (6 months earlier) for duty limitations that clearly included refrained activities corresponding to an adverse left knee condition as listed on that same profile.  Despite the PEB’s 6 month post-LIMDU adjudication dated 28 November 2007 being void of any lower extremity condition, the Board majority agreed that the prior reference to the permanent profile listing a left knee pain condition still carried a preponderance of evidence to conclude that the left knee condition was additionally unfitting in the performance of duties of a steelworker.  The VA examination at 1 month after separation clearly revealed evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  After due deliberation, the Board majority agreed that the preponderance of the evidence with regard to the functional impairment of left lower extremity favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 5299-5260 and meets the VASRD §4.71a criteria for a 10% rating.  

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 right wrist condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended left lower extremity condition, the Board majority agrees that it was separately unfitting and the Board majority recommends a disability rating of 10%, coded 5299-5260 IAW VASRD §4.71a.  The single voter for dissent recommended no change in the PEB’s decision in not addressing the left lower extremity condition 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 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%	
Right Wrist Pain	5099-5003	10%	
Other Joint Derangement, Not Elsewhere Classified, Left Lower Leg	5299-5260	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141230, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 17 Nov 16 ICO XXXXXXXXXXXXXXXXXX     
	(c) PDBR ltr dtd 19 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 09 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 19 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 19 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 09 Nov 16 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (g) are approved.  The official records of the following individuals are to be corrected to reflect the stated disposition below:

     a. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List on date of discharge with a final disability rating of 30 percent (increased from 10 percent). 

     b. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List on date of discharge with a final disability rating of 30 percent (increased from 10 percent). 

     c. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List on date of discharge with a final disability rating of 40 percent (increased from 20 percent).   

     d. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List on date of discharge with a final disability rating of 30 percent (increased from 0 percent).

     e. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge.      

     f. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 
     
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

	    XXXXXXXXXXXXXXXXXX
	    Assistant General Counsel
                                                                                          (Manpower & Reserve Affairs)