RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01692
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061212

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Signal Support System Specialist, medically separated for “major depressive disorder [MDD],” “right knee pain” and “left plantar fasciitis,” rated 10%, 0%, and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  “My sleep disorder continues, migraines, mood swings are persistent.  My right knee continues to give me trouble in trying to do my daily tasks.”  The 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 - 20061114	VARD – 20131029	
Condition	Code	Rating	Condition	Code	Rating	Exam	
MDD	9434	10%	Post Traumatic Stress Disorder (PTSD)	9411	NSC	Partial STR & Failed to Report for VA Examination	
Right Knee Pain	5099-5003	0%	Right Knee Chondromalacia	5260	0%		
Left Plantar Fasciitis	5399-5310	0%	No VA Placement		
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	0%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

MDD.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) mental health narrative summary (NARSUM), the CI’s MDD began in June 2005 while he was deployed and experienced various incidents at Abu Ghraib Prison in Iraq to include moving remains of a dead friend.  He “became anxious, depressed, easily agitated with difficulty falling and staying asleep while in the war theater and requested "a relief of duty."  He returned to Puerto Rico where he initially received treatment for his knee, but in October 2005 was referred for psychiatric treatment.  The CI was seen by VA psychiatry and diagnosed with PTSD on 11 November 2005.  

At the 9 February 2006 VA psychiatrist’s evaluation, 10 months prior to separation, the CI reported having weekly panic attacks, nightmares, flashbacks, stress, feeling like “something will happen, will die,” and he had increased alcohol consumption.  On mental status examination (MSE) his mood and affect were anxious.  There was no suicidal ideation, delusions, hallucinations or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormalities.  The diagnosis was ongoing PTSD and the Global Assessment of Functioning was 55 (in the moderate symptom range).  

On 16 March 2006, following an evaluation a psychiatrist, the CI went home and jumped either from off his roof or from the second story of his home (the record was equivocal) in a suicide attempt.  The CI “admitted heavy alcohol ingestion in the days that led to [his] psychiatric admission.”  The examiner noted that “perhaps [the CI] had a blackout from alcohol intoxication.”  A drug screen administered that day was positive for cocaine.  

The 31 May 2006 MEB NARSUM Psychiatric Addendum, 9 months prior to separation, was based on multiple evaluations including medication follow-up visits thru 7 September 2006 (3 months prior to separation).  Pertinent history included details of stressors from the Abu Ghraib prison, handling the dead, and the CI’s suicide attempt.  At the 3 March 2006 MSE his mood was depressed and the affect was labile and anxious.  There was no suicidal ideation, delusions, hallucinations or other symptoms suggestive of psychosis, speech disturbance, or objective cognitive impairment.  The psychiatrist stated “social judgment appears to be variable and unpredictable when patient is under stress, yet, his test judgment was good.  Reliability was good.”  The psychiatrist examiner diagnosed “MDD, severe, single episode, as manifested by patient feeling depressed, irritable, helpless, [having] poor impulse control and frustration tolerance, labile affect, insomnia, and suicidal ideation.”  Precipitating stressors were “various incidents at Abu Ghraib Prison in Iraq.  Life in war theater and Iraq.”  Impairment for further military duty was marked, and impairment for social and industrial adaptability was definite.  The examiner stated, “although his mood is more stable and (the CI) is free from suicidal thinking, the (CI) remains fragile and will need close monitoring by psychiatrist, psychologist, case manager, and substance abuse counselor.”  

The 7 November 2006 commander’s statement, 1 month prior to separation, indicated the CI was assigned to the Medical Retention Processing Unit (MRPU) since August 2005 and was satisfactorily working a full duty day at the Department of Public Works “managing in/or out issues, control log, and to verify the employee’s equipment, etc.”  

There was no VA Compensation and Pension (C&P) evaluation in evidence proximate to separation, although the pre-separation VA treatment notes and psychiatric hospitalization are noted above.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the MDD 10%, coded 9434 (MDD), citing “rated as mild social/industrial impairment,” and “IAW AR 635-40, Appendix B-107, paragraph e, Soldier's impairment for social and industrial adaptability is more accurately described as mild, not definite.”  The VARD from October 2013, over 5 years remote from separation, did not rate any mental health disorder, citing missing STRs (from 4 January 2004 to 12 December 2006), a missed VA examination, and the “absence of evidence showing that you currently suffer from a condition.”  

The panel considered whether the provisions of VASRD §4.129 (mental disorders due to traumatic stress) were applicable.  Given the consistency of both the CI’s precipitating stressors and mental health symptoms, 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 turned to its rating recommendation at the time of placement on the TDRL.  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 sources of comprehensive evidence on which to base the permanent rating recommendation in this case were the MEB NARSUM Psychiatric Addendum, dated 31 May 2006 and finalized on 25 September 2006 (3 months prior to separation), the commander’s statement (1 month prior to separation), and the PEB file with rebuttals, as there was no post-separation evidence proximate to the rating timeframe in the record.  

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 panel considered the CI’s mental health hospitalization following a suicide attempt; the MEB psychiatrist’s assessment as well as the commander’s statement indicating the CI was satisfactorily working normal duty hours from 0800-1530 at the Department of Public Works.  

The panel’s consensus was that the CI’s condition at the time of separation did not support the higher 30% disability rating, and that his level of impairment was best described as occupational and social impairment due to mild or transient decrease in work efficiency and inability to perform occupational tasks only during periods of significant stress.  

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 the panel majority recommends a permanent rating of 10% for the MDD condition coded (9434) IAW §4.130.  

Right Knee Pain.  According to the STR and MEB NARSUM, the CI’s right knee condition began in May 2004 after a motor vehicle accident during deployment.  The CI underwent right knee surgery in October 2004 for torn medial meniscus and tricompartmental osteoarthritis noted on diagnostic imaging, and returned to theater.  The CI had additional arthroscopic surgery in October 2005 for right knee internal derangement and chondromalacia patella.  At the 1 June 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported right knee pain with locking.  Physical examination showed right knee positive patellar distraction and compression and limited motion as charted below.  The 12 October 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of a painful right knee with limited motion.  Gait was normal.  There was positive patellar distraction and compression and limited motion as charted below.  

There was no C&P examination in evidence proximate to separation, but pre-separation VA treatment notes showing mild right quadriceps muscle atrophy were considered.  

The range of motion (ROM) examinations in evidence which the panel weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Right Knee ROM
(Degrees)	MEB ~6 Mo. Pre-Sep	PT ~6 Mo. Pre-Sep	NARSUM ~2 Mo. Pre-Sep	
Flexion (140 Normal)	110	110	110	
Extension (0 Normal)	0	0	0	
Comment		Normal gait; painful walking; tender; 4/5 weakness; mild quad. atrophy	Normal gait	
§4.71a Rating	0%-10%	10%	0%-10%	

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 0%, coded 5099-5003, citing the US Army Physical Disability Agency pain policy.  There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  However, the persistence of symptoms including pain after meniscal surgery warranted a 10% rating under the analogous 5259 code (cartilage, semilunar, removal of symptomatic).  There was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), and 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).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right knee condition, coded 5299-5259.  

Left Plantar Fasciitis.  According to the STR and MEB NARSUM, the CI’s left foot condition began in 2005 without inciting injury.  Diagnostic imaging showed posterior small heel spurs.  Podiatry diagnosed plantar fasciitis and despite treatment left heel pain persisted.  At the 1 June 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported foot pain and that he was receiving needle treatments.  Physical examination showed “left foot tenderness to palpation heel aspect.”  There was no neurovascular deficit and arches were normal.  

The 12 October 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of left foot pain.  The CI reported an excellent response to podiatry treatment of local anesthetic and steroid injections.  Physical examination showed a normal gait.  There was left foot tenderness at the heel aspect.  Neurological examination was within normal limits with normal reflexes and sensations.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left foot condition 0%, coded 5399-5310 (analogous to muscle group X function), citing “rated as slight.”  There was insufficient evidence of moderate muscle disability (IAW VASRD §4.56) for the next higher rating.  There was no evidence of ankle loss of motion or other foot abnormalities for alternative rating under VASRD §4.71a.  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 left foot condition.

Contended PEB Condition:  Migraine Headaches.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was profiled and implicated in the commander’s statement, but not 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 panel 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, the panel unanimously recommends a retroactive 6-month period of TDRL with a rating of 50% (in accordance with §4.129), and the panel majority recommends a permanent rating of 10% for the MDD coded (9434) IAW §4.130.  In the matter of the right knee condition, the panel unanimously recommends a disability rating of 10%, coded 5299-5259 IAW VASRD §4.71a.  In the matter of the left foot condition and IAW VASRD §4.73, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended migraine headache condition, the panel unanimously agrees that it cannot recommend it for additional disability rating.  

The single voter for dissent submitted the appended minority opinion.  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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
MDD	9434	50%	10%	
Right Knee Pain	5299-5259	10%	10%	
Left Plantar Fasciitis	5399-5310	0%	0%	
COMBINED	60%	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150625, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION.  The minority voter agrees with the majority aside from the single issue of the permanent disability rating for MDD (following constructive TDRL) which should be 30%.  

There was no post-separation information proximate to the rating timeframe, and remote or missing data could not be used to speculate on the CI’s disability picture at the end of the TDRL period.  Therefore the STR had the highest probative value for rating.  

The CI had a suicide attempt and psychiatric hospitalization within 9 months of separation and the psychiatrist’s evaluation, signed 3 months prior to separation, showed severe major depressive disorder “as manifested by patient feeling depressed, irritable, helpless, poor impulse control and frustration tolerance, labile affect, insomnia, and suicidal ideation.”  The assessment of definite impairment for social and industrial impairment was well supported by the history, symptoms, diagnosis and prognosis.  The CI’s symptoms were moderate (rather than mild), were not controlled by continuous medication, and were not only during periods of significant stress.  

The MRPU commander’s statement indicated that the CI was working satisfactorily as noted above; however, this was outside of the CI’s normal duty and in what would be considered to be a protected environment.  The psychiatrist’s evaluation, taken with the commander’s statement for satisfactory general functioning, best supported the 30% VASRD rating criteria for “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).”  

After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the minority voter therefore recommends a 30% permanent rating for the MDD condition coded (9434) IAW §4.130.  

The minority voter 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	
MDD	9434	50%	30%	
Right Knee Pain	5299-5259	10%	10%	
Left Plantar Fasciitis	5399-5310	0%	0%	
COMBINED	60%	40%	

AR20170008839, 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 your disability rating should be modified to 20% but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

The constructive TDRL period will result in an adjustment to your pay providing you 60% retired pay for six months from the date of your original medical separation then modification of the permanent disability rating from 10% to 20% following the constructive six month TDRL period.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	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.  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