RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01444
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061104

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E6, Wheeled Vehicle Mechanic, medically separated for “major depressive disorder … with PTSD (Post Traumatic Stress Disorder)” and “bilateral knee osteoarthritis,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  “Review all conditions.”  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20061012	VARD - 20070521	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder … with PTSD	9434	10%	PTSD (to include Depression, Anxiety, and Insomnia)	9411	50%	20070327	
Bilateral Knee Osteoarthritis	5003	10%	Chondromalacia Patella, Left Knee, Status Post Arthroscopy X2	5262	10%	20030522	
			Degenerative Joint Disease, Chondromalacia of the Right Knee	5014-5010	0%	20070403	
Chronic Low Back Pain	Not Unfitting	Lumbar Strain with Chronic Low Back Pain	5237	10%	20070403	
Mild Persistent Asthma		Asthma	6602	NSC	20070403	
Mild HF Hearing Loss		Bilateral Hearing Loss	6100	NSC	20070403	
Erectile Dysfunction		Erectile Dysfunction 	7599-7522	NSC	20070403	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

Major Depression Disorder (MDD) … with Post Traumatic Stress Disorder (PTSD).  According to service treatment records (STR) and the mental health Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s difficulties with anger, sleep and depressive symptoms, began in May 2005 while deployed to Iraq.  Mental health evaluations in May 2005 diagnosed depressive disorder, in the deployed setting of rendering care to a fellow Soldier who attempted suicide by self-inflicted gunshot; in a unit that had another suicide attempt and successful suicide.  The CI was diagnosed with depression and treated with medications.  On redeployment the CI developed (PTSD) with symptoms of anxiety, avoidance, intrusive memories, anxiety, and sleep disturbance.  

At the 11 April 2006 psychiatry clinic appointment, the CI reported anxiety, depression and insomnia with flashbacks, dreams and nightmares.  The diagnosis was PTSD and the global Assessment of Functioning (GAF) was 55 (in the moderate symptom range).  

The 14 August 2006 MEB psychiatric NARSUM examination, 3 months prior to separation, noted complaints of PTSD.  History included for previous treatment with Prozac for depression after divorce from his first wife in 2001.  Military history included “seeing multiple injuries of multiple friends while in Iraq, including suicide and suicide attempts.”  The psychiatrist stated:  “He cited numerous situations where he felt that his life was in jeopardy.  He felt helpless during many situations and felt as if he were going to die on a nearly daily basis while he was on convoys and searching for improvised explosive devices (IEDs).  There were multiple incidents of mortars and rockets exploding around him and his soldiers.  He lost several acquaintances and friends while in Iraq.  He describes several other situations where soldiers lost their lives.”  On mental status examination (MSE) his mood was “not good” and the affect was congruent with depression.  Speech was mildly slowed and there was psychomotor retardation without abnormal movements.  The CI denied suicidal or homicidal ideations.  There was no delusions, hallucinations or other symptoms suggestive of psychosis, objective cognitive impairment, or other abnormality.  

The CI’s chronic PTSD was “manifested by persistent re-experiencing symptoms, avoidant symptoms, confrontation with multiple traumatic events, and continued physiologic arousal, all stemming from exposure to combat ….”  The degree of impairment for civilian and industrial adaptability from PTSD was “considerable.”  The CI’s recurrent moderate MDD was “manifested by depressed mood, decreased interests, insomnia, agitation, fatigue, feelings of worthlessness, poor concentration and recurrent thoughts of death.  Symptoms began during deployment … while in Iraq.  The degree of impairment for civilian and industrial adaptability from the depressive disorder was considerable.  The CI’s GAF for all mental health conditions was 60 (in the moderate symptom range).  

The psychiatrist’s memo for the PEB dated 3 October 2006 indicated that the CI’s PTSD symptoms have led to “decreased work productivity, as a result of the re-experiencing symptoms.  These symptoms have also impaired his short term memory, ability to concentrate and focus.”  The CI had also developed Panic Attacks and has been seen in the emergency room, as it was impairing, painful and felt like a "heart attack," and that poor sleep also impaired the CI’s ability to function occupationally, socially and with attention, focus and memory.  The 10 August 2006 medical retention processing unit commander’s statement, noted the S3 physical profile and stated that the CI was not working in his primary military occupational service but was working in the Optical Shop with satisfactory duty performance.  Profile included diagnoses of PTSD and depression, and indicated restriction from carrying or firing a weapon.  

At the 27 March 2007 VA Compensation and Pension (C&P) initial PTSD examination, performed 5 months after separation, the CI reported PTSD and depressive symptoms including panic attacks lasting for 20-30 minutes less than a few times a month, sleep disturbance, nightmares approximately 3-4 times a week, loss of motivation, avoidance, and isolation.  The CI was unemployed related to his knees.  The CI was taking anti-anxiety and anti-depressant medications, for related stressors of unit members’ suicide attempts, a successful suicide, and a convoy operation where he witnessing an IED blast to a tanker truck.  On MSE his mood was agitated and the affect was flat.  The examiner indicated the CI’s speech was hesitant and slow with psychomotor activity of restlessness and hand wringing.  The CI endorsed homicidal thoughts or fantasies of harming others without suicidal ideations.  Recent and immediate memory was moderately impaired.  There were no delusions, hallucinations or other symptoms suggestive of psychosis, objective cognitive impairment, or other abnormality.  There were problems with the activities of daily living with avoidance of crowds severely impacting shopping, traveling, and driving.  The CI related being detained by police due to driving  Symptoms included persistent re-experiencing, avoidance, increased arousal including difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startle response with symptoms causing clinically significant distress or impairment in social, occupational or other important areas of functioning.  Results of psychological testing, supported moderate PTSD and severe depression.  The psychologist’s diagnoses were chronic PTSD and recurrent MDD.  The GAF was 41 (in the range of serious symptoms) and the examiner stated:  “Symptoms of depression and symptoms of PTSD have a fair amount of overlap. … avoidant symptomology, decreased social functioning, problems listed related to daily functioning, and sleep disturbances are more likely than not due to the veterans PTSD.”  The examiner stated that there was reduced reliability and productivity due to PTSD symptoms.  

The panel directed attention to its rating recommendation based on the above evidence.  The Informal PEB rated the PTSD condition (with MDD) 10%, coded 9411, while the Formal PEB rated the MDD condition (with PTSD) 10%, coded 9434 (major depressive disorder); citing “depression existed prior to service (EPTS factor unknown), is considered permanently service aggravated and is inextricably intertwined with PTSD.  Although PTSD cannot be separately rated, the rating is for overall impairment,” and rated for mild industrial impairment.  The VA rated the mental health conditions 50% coded 9411 (PTSD), based on the VA C&P examination 5 months after separation, citing diagnoses of PTSD, chronic; MDD, recurrent; GAF of 41; and rated for occupational and social impairment with reduced reliability and productivity due to symptoms.  

The panel considered whether the provisions of VASRD §4.129 (mental disorders due to traumatic stress) were applicable.  Although PTSD was diagnosed, referred by the MEB, and considered by the Formal PEB in their rating, the Formal PEB’s unfitting diagnosis was MDD; however, application of §4.129 and rating under §4.130 are not based on a specific mental health diagnosis.  The panel agreed that the stipulations of §4.129 were met in this case and therefore recommended a minimum 50% rating for a retroactive 6‐month period on the Temporary Disability Retired List (TDRL).  

The panel determined that the recurrent MDD and PTSD was due to a “highly stressful event” as used in the VASRD, and that the stipulations of §4.129 were met in this case and therefore a minimum 50% rating for a retroactive 6‐month period on the Temporary Disability Retired List (TDRL) was warranted.  All panel members agreed that the §4.130 criteria for a rating higher than 50% at the time of placement on TDRL were not met; and, therefore the minimum 50% TDRL rating prescribed by §4.129 is applicable.  The panel then turned to its permanent rating recommendation at the time of removal from the TDRL.  The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the C&P examination 5 months after separation. 

All panel members agreed that at the time of permanent rating, the §4.130 threshold for a 70% rating was not approached and that the criteria for a 10% rating were well exceeded.  The deliberation settled on arguments for a 50% versus a 30% permanent rating recommendation.  

Social and occupational impairment consistent with a 50% evaluation “occupational and social impairment with reduced reliability and productivity” could be surmised from the documented symptoms at the time of the 5 month post separation C&P examination including symptoms of flat affect, deficits in memory, mood disturbance, and difficulty with establishing relationships as well as the examiner’s indications of lack of periods of symptom remission, and the assessment of serious symptoms and reduced reliability and productivity.  After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a retroactive 6-month period of TDRL with a rating of 50% (in accordance with §4.129), and a permanent rating of 50% for the major depressive disorder (9434) IAW §4.130.  

Bilateral Knee Osteoarthritis.  According to the STRs and MEB NARSUM, the CI’s left knee condition began in 2002 (with surgeries), and he developed right knee pain after falling in March 2005.  The CI’s chronic bilateral knee pain was diagnosed by an orthopedic surgeon as osteoarthritis and the diagnosis was supported by X-rays.  

The 7 August 2006 MEB NARSUM examination, 3 months prior to separation, noted complaints of bilateral knee pain.  On this day he was not using his cane.  Physical examination showed a slightly antalgic gait favoring the left leg.  The CI was not able to heel to toe walk.  Knee examination showed patellar grinding on the McMurray maneuver of both knees.  Strength and neurovascular testing were normal.  The range of motion (ROM) examination showed left knee ROM of 0-115 degrees (normal 0-140) limited by pain.  Right knee ROM was 0-125 degrees without pain and limited by soft tissue.  

At the 3 April 2007 VA C&P evaluation, 5 months after separation, the CI reported left knee degenerative joint disease (DJD -with an established 10% VA disability) and bilateral knee pain, stiffness, instability, and swelling.  Physical examination showed the CI walked with a cane on the left.  Knee examination was of the right knee only and showed crepitus with normal ROM without painful motion or additional loss on repetition.  The diagnosis was DJD and chondromalacia of the right knee.  At the C&P examination dated 11 October 2007 (11 months after separation) the CI reported bilateral knee pain, swelling, tenderness and dislocation or subluxation.  Physical examination showed an antalgic gait with right knee ROM of 0-103 degrees without pain or additional limitation of motion.  The left knee had painful ROM of 0-110 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  

The PEB combined the left and right knee conditions as a single unfitting condition coded 5003 (arthritis, degenerative), citing radiographically proven degenerative arthritis of 2 or more major joints with normal motion.  This 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 panel 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 panel’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 panel 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 panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

The VA rated the left knee condition 10% coded 5262 (tibia and fibula, impairment of), effective May 2002, based on the 22 May 2003 C&P examination which showed painful motion (the original claim was not in evidence).  The VA rated the right knee condition 0%, coded 5014-5010 (osteomalacia - arthritis, due to trauma), based on the C&P examination 5 months after separation, citing normal ROMs with no additional limitations on repetition; and increased the right knee rating to 10% coded 5003-5262 (arthritis, degenerative - tibia and fibula, impairment of) effective June 2007, based on the C&P examination 11 months after separation, citing mild knee disability.  The profile, commander’s statement, NARSUM, MEB and STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either knee over the other.  Since undue speculation would be required to conclude that impairment from either knee would not have unacceptably interfered with MOS performance, members agreed that each knee was reasonably justified as separately unfitting.  

The examinations proximate to separation documented evidence of left knee painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  There was no evidence of painful motion with functional loss to support a 10% rating for the right knee.  Neither knee had ligamentous instability or laxity (5257), 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 mal-union of the femur or tibia of either leg to support consideration under those respective codes for knee impairment related to long bone conditions (5255, 5262).  Ideal coding would be for a 10% left knee and a 0% right knee; however, this would be no higher than the 10% awarded by the PEB.  There was therefore no VASRD §4.71a route to a rating higher than the 10% adjudicated by the PEB under any applicable code.  

The panel then determined the rating recommendation for the bilateral knee condition at TDRL removal assigned at the 6 months TDRL interval.  The panel determined the most proximate source of comprehensive evidence, to evaluation the CI at TDLR removal, was the VA (C&P) general examination performed 5 months post-separation with results as described above.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral knee condition at the time of TDRL removal.  

Contended PEB Conditions:  Chronic Low Back Pain, Mild Persistent Asthma, Mild High Frequency Hearing Loss, and Erectile Dysfunction.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  Only the low back pain (profiled L2) and asthma were profiled and implicated in the commander’s statement.  None of the conditions were judged to fail retention standards.  The back had not been treated until the MEB evaluations and diagnostic imaging was normal.  The asthma was noted and diagnosed during MEB evaluation for the knees, and the CI was doing well on inhaled medications.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the major depressive disorder with PTSD condition, the panel unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129, and a 50% permanent rating at 6 months IAW VASRD §4.130.  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended chronic low back pain, mild persistent asthma, mild high frequency hearing loss, and erectile dysfunction conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  The panel 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	RATING	
		TDRL	PERMANENT	
Major Depressive Disorder (with PTSD)	9434	50%	50%	
Bilateral Knee Osteoarthritis	5003	10%	10%	
	COMBINED	60%	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150613, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170012856, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to constructively place you on the Temporary Disability Retired List (TDRL) at 60% disability for six months effective the date of your original medical separation for disability with severance pay and then following this six month period re-characterize your separation as a disability retirement with the combined disability rating of 60%.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The constructive TDRL period and the re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing you 60% retired pay for six months from the date of your original medical separation and then 60% disability retired pay effective the date following the constructive six month TDRL period, minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

	
Enclosure