RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00474
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050620

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, M1 Armor Crewman, medically separated for “post-traumatic stress disorder (PTSD)” and “chronic pain in shrapnel wounds” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION:  The VA rating was higher than the Physical Evaluation Board (PEB) rating which stemmed from combat injuries sustained in Iraq.  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.

RATING COMPARISON:

SERVICE PEB - 20050422	VARD - 20051208	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10%	PTSD	9411	50%	20050815	
Chronic Pain in Shrapnel Wounds:  Left Temple, Left Arm [Elbow], [Left] Flank, Leg [Left Thigh]	5099-5003	10%	Chronic Headaches Residuals of Shrapnel Wounds to the Left Temple	8100	0%	20050823	
			Residuals of Shrapnel Wounds to the
Left Temple	7800	30%		
			Residual of Shrapnel Wound to the Left Arm near Triceps, Distal Humerus, Elbow	5306	10%		
			Left Arm Tender Shrapnel Scar, Posterior 
Left Elbow	7804	10%		
			Left Flank Tender Shrapnel Scar	7804	10%		
			Residuals of Shrapnel Wound to the Left…Thigh	5314	10%		
			Left Upper Thigh Tender Shrapnel Scar…	7804	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:

PTSD.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI sustained significant physical injuries when a rocket propelled grenade (RPG) struck his tank in Iraq on 5 July 2003.  The CI reported mental health (MH) symptoms after redeployment in August 2003.  Symptoms included sleep difficulties, irritability, nightmares, intrusive combat recollections, and social isolation. The CI participated in group and individual therapy.  He did not receive emergency room (ER) or inpatient treatment (hospitalization).  He was diagnosed with acute stress condition in September 2003 and received medication to improve sleep and anxiety.

At the 24 September 2004 MEB NARSUM MH addendum, 9 months prior to separation, the CI complained of anxiety, nightmares, insomnia, pounding heart episodes, shortness of breath, high startle response, and emotional numbness since returning from Iraq.  He denied regular alcohol use.  The mental status examination (MSE) was unremarkable with the exception of poor eye contact, and constricted/limited affect and reactivity.  There was no suicidal or homicidal thought history or psychosis.  He was prescribed Elavil for depression and pain relief and received a Global Assessment of Functioning (GAF) score of 55 for moderate symptoms or impairment. A neuropsychological report on 18 March 2005, 3 months before separation, noted an essentially normal MSE that showed adequate speech and comprehension of instructions.  Cognitive testing showed above average intelligence but below average working memory.

At the 15 August 2005 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported ongoing nightmares, difficulty being around crowds, hypervigilance, startle response, intrusive thoughts, and irritability.  He was unemployed but planned to attend full-time college courses.  He was married for 7 years with a supportive wife and two children and he had friends with whom he interacted.  Medication was not addressed, but he attended a combat PTSD group.  The MSE noted anxiousness but good eye contact, a full range of affect and spontaneous smiling.  No impairments in concentration, memory, thinking or chronic sleep were noted, nor was there significant irritability or depressed mood were.  PTSD was diagnosed with a GAF score of 60 to 65 or moderate to mild impairment.  The examiner opined that the CI “should be able to maintain brief and superficial contact with others in a job setting.”

The 20 December 2005 psychiatry examination, 6 months after separation, noted that medication reduced the CI’s nightmares and helped him get to sleep promptly.  The CI reported financial problems and it was noted that he had snowboarded a few times.  The MSE noted a glum mood and a full affect.  All other aspects were unremarkable.  A note on 31 January 2006 documented the psychiatrist’s approval when the CI requested to work a security job.  A psychiatry visit on 22 February 2006, 8 months after separation, documented the CI’s PTSD was in some degree of remission.  He worked security at night, was enrolled in college courses, and occasionally snowboarded.  A 16 June 2006 MH examination, one year after separation, noted the college degree was completed, and the CI enjoyed a good relationship with his wife and family.  He had bought a house and sleep medication helped but dreams were now “awkward” with content taking place in Iraq or civilian environments.  A performance appraisal performed on 11 December 2006, 18 months after separation, assessed the CI with high organizational-based competency that consistently met and occasionally exceeded job factor expectations.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the PTSD condition 10%, coded 9411 (PTSD) citing continued sleep disturbance, based on the C&P examination, citing occupational and social impairment with reduced reliability and productivity.  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. The STR showed the CI responded well to medication and his MH condition was reasonably stable.  The STR and VA MSEs proximate to separation were unremarkable except for a restricted affect, poor eye contact, mild sleep disturbance, and depressed mood.  There were no ER visits, psychiatric hospitalizations, or panic attacks, and there was no suicidal or homicidal ideation, nor impairment with thinking or judgment.  The commander’s performance statement did not implicate a MH condition or symptom that interfered with duty performance.  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 performed 2 months after separation from active duty and retroactive placement on the TDRL.  During this examination, the CI reported ongoing nightmares, difficulty being around crowds, hypervigilance, startle response, intrusive thoughts, and irritability.  The MSE was essentially normal.  He had a supportive marriage and friends outside the family.  PTSD was diagnosed with a GAF score of 60 to 65, indicative of moderate to mild social and occupational impairment.  The examiner opined that the CI should be able to maintain brief and superficial contact with others in a job setting.  MH examinations in the STR from one month before TDRL removal to 12 months after, documented financial difficulties sleep and nightmare issues which were resolving with medication.  MSEs were essentially normal and the PTSD was in some degree of remission.  As noted above, the CI held a job, completed a college degree, had positive relationships with friends and family, and had bought a house.  His work was assessed as exceeding expectations. There were no ER visits, psychiatric hospitalizations, panic attacks, or impairment with thinking or judgment, and no suicidal or homicidal ideation.  Panel members concluded that at the time of separation the preponderance of evidence most approximated a 10% rating for “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability 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% (IAW §4.129), and a permanent rating of 10% for PTSD (9411).

Chronic Pain in Shrapnel Wounds.  The PEB combined the left temple, elbow, flank and thigh conditions under a single disability rating, analogously coded 5099-5003 and rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy and AR 635-40 B24.f.  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’s initial charge in this case was therefore directed at determining if 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 evidence for the left elbow, temple, flank and thigh conditions is presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to the STR and MEB NARSUM, the right-handed CI sustained the shrapnel wounds when an RPG struck his tank in Iraq on 5 July 2003.  A medical care note on 1 July 2004, 11 months before separation, cited the aforementioned wounds.  The CI reported the left thigh shrapnel was never retrieved despite surgery.  He was placed on Elavil for chronic left thigh pain and received monthly steroid injections, however the pain did not subside and physical training was discontinued.  

During the 24 August 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 10 months prior to separation, the CI reported that shrapnel remained in his body.  Due to the shrapnel the left elbow was painful and sometimes locked and he had left thigh pain and headaches.  Physical examination revealed scars on the left elbow, flank, temple and thigh but they were not characterized as disfiguring or causing functional impairment.    Range of motion (ROM) for the upper and lower extremities was not recorded.  A permanent U3/L3/H2/S3 physical profile, dated 27 August 2004, identified chronic left leg, elbow, and head pain secondary to shrapnel injury, mild hearing loss, and PTSD.  The CI was not able to carry or fire a weapon, move with a fighting load at least 2 miles, do 3-5 second rushes under direct or indirect fire, or perform any physical fitness test event except for the alternate swim.  He was able to wear a protective mask and all chemical defense equipment, and he could construct an individual fighting position.  A 21 September 2004 MEB NARSUM examination, 9 months prior to separation, noted constant pain in the head, left upper extremity [elbow] and lower left thigh.  He was unable to lift, dig a fighting position, carry a combat load, or run in defense or attack.  The examiner referenced the aforementioned MEB physical examination.

The 22 September 2004 MEB physical therapy examination recorded repetitive goniometric-measured thoracolumbar flexion to 75 degrees (normal 90) and combined ROM was 185.  Repetitive left hip flexion was 115 degrees (normal 125), extension 10 degrees (normal 20), external rotation 35 degrees (normal 45), and abduction 30 degrees (normal 45).  Painful motion, and left elbow and knee ROM were not addressed.  The commander’s performance statement dated 7 December 2004, 7 months before separation, noted the CI was incapable of meeting his military specialty duties due to chronic leg, elbow and head pain.  He could not meet lift requirements, was heavily medicated, and required constant monitoring which would not be guaranteed in field or wartime environments.  

The 31 January 2005 MEB NARSUM examination, 5 months prior to separation, showed a shrapnel injury and scars to the left temporal region.  Shrapnel remained in the left triceps region.  The left elbow had normal extension.  Painful motion and other ROM were not recorded.  There was greater left arm weakness than on the right.  Deep tendon reflexes and sensory dermatomes were intact.  Gait was normal with left leg weakness.  The CI was able to toe/heel walk.  The left thigh had lateral and medial scars that retained shrapnel and the leg had weakness with hyperreflexia (an over-responsive reflex) and decreased pinprick sensation at the L3-4 dermatome.  Left knee “forward extension” was intact.    The 25 February 2005 EMG studies of the left upper and lower extremities were normal with no peripheral neuropathy, and no left cervical or lumbar radiculopathy based on tested nerves and muscles.

At the 23 August 2005 C&P examination, 2 months after separation, the CI reported chronic shrapnel injuries and pain.  The CI noted having had surgery to remove shrapnel from his left temple that relieved his constant headaches that had become recurrent daily.  He reported diffuse and constant pain “on the left side of my body” most notably in his left lower extremity (LLE).  He reported flares about 4 to 5 days a week precipitated by over-activity such as lots of walking and going up and down stairs all day; albeit the CI could walk 3 to 5 miles with LLE flare-ups from increased weight bearing.  He denied a history of falling or being unsteady on his feet and reported that the lower extremities did not experience radiating pain, numbness, tingling, or weakness.  He was able to perform normal daily activities, which typically included helping out around the house, running errands and going to various appointments.  Physical examination showed a normal gait without an assistive device.  Heel to toe gait was intact and he was able to squat to the floor and recover.  Left temple, elbow and upper thigh scars were mildly tender, depressed, and non-adherent.  The left flank scar was not addressed.  There was no skin breakdown or skin/tissue atrophy, ulceration, inflammation, or keloid formation present.  The left elbow, flank, and thigh showed no muscle atrophy or reduced ROM due to the scar.  Left arm strength was 4/5 compared to 5/5 on the right without joint swelling.  Though specific ROM was not measured, it was noted that ROM in the upper and lower extremities was without crepitus or pain.  Sharp and dull sensation was intact in both upper and lower extremities.  Bilateral biceps and patellar deep tendon reflexes were normal.  The examiner assessed recurrent daily headaches as, and multiple shrapnel injuries/scars which resulted in chronic pain with residual mild weakness in the left upper and lower extremities, although there was no tissue/muscle atrophy or limitation of joint ROM.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic pain in shrapnel wounds condition 10%, analogously coded 5099-5003 (arthritis, degenerative), citing the USAPDA pain policy.  The VA rated:  the headache condition 0%, coded 8100 (migraine) and left temple scar 30%, coded 7800 (burn scar of the head, face, or neck due to other causes); the left arm condition 10%, coded 5306 (group VI, extensor muscles of the elbow (non-dominant)); and the left thigh condition 10%, coded 5313 (group XIII, extension of hip and flexion of knee, XIV) and. The scars on the left elbow flank and thigh were rated 10% each, coded 7804 (scars, unstable or painful).

The panel then considered if the PEB’s combined adjudication, as cited above, was justified in lieu of separate ratings.  The panel majority determined that the left temple, elbow, and thigh conditions were all reasonably justified as separately unfitting as they were permanently profiled, implicated by the commander’s statement and judged to fail retention standards.  The commander stated the head pain and left elbow and thigh conditions rendered the CI incapable of meeting lifting requirements, and required the CI to be heavily medicated and constantly monitored, conditions which could not be guaranteed in field or wartime environments.  The panel determined the left flank condition was not reasonably justified as separately unfitting.  It was not profiled or implicated by the commander and did not fail retention standards.  

The panel next considered constructive TDRL placement and removal rating recommendations for the left temple, elbow, and thigh conditions.  The CI complained of chronic constant headaches that were reduced after shrapnel was removed from the left temple region.  The panel agreed the STR and VA evidence did not show prostrating headaches occurring on average once every 2 months, or more frequently, over the last several months prior to TDRL placement or removal to support a rating higher than 0% during TDRL placement or removal rating periods.

The panel majority agreed the STR and VA evidence showed no left elbow neurological impairment as the EMG was normal and there was no objective muscle weakness or tissue/muscle atrophy.  The CI denied extremities numbness, tingling or weakness (objective evidence was also negative).  There was no noted joint limitation of motion without painful motion during the C&P examination.  The panel majority agreed that a 10% rating was not supported under code 5003 or analogous 5206 or 5207 (forearm limitation of motion) IAW VARSD §§4.59, 4.40 and 4.45 (painful motion, functional loss, and the joints) or VASRD §4.73 muscle injury criteria.

The panel majority agreed the C&P left thigh examination showed a normal gait without use of an assistive device.  Heel to toe walking and gait were intact. The CI was able to squat to the floor and recover and reported being able to walk 3 to 5 miles though he experienced flare-ups due to increased weight bearing.  He denied a history of falling or being unsteady on his feet. There was no radiating pain, numbness, tingling or weakness lower extremities and ROM was without crepitus or pain.  Additionally, there was no tissue/muscle atrophy or noted joint limitation of motion in the lower extremities.  The panel majority agreed there was no LLE evidence of limitation of motion, painful motion and functional loss, or weakness at TDRL placement or removal to support a 10% rating IAW VASRD §§4.59, 4.40 or 4.45 or VASRD §4.73 muscle injury criteria.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends no change in the PEB adjudication for the chronic pain from shrapnel wounds condition at constructive TDRL placement and removal.
BOARD FINDINGS:  In the matter of the PTSD condition, the panel recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed, and a 10% permanent rating at 6 months IAW VASRD §4.130.  In the matter of the chronic pain and shrapnel wounds condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.

Minority Opinion.  The panel unanimously agrees the left elbow and left thigh shrapnel wounds are separately unfitting.  However, the majority opinion recommends a 0% rating for each conditions; whereas, the minority recommends a 10% rating for each condition at constructive TDRL placement and removal.

Left Elbow and Left Thigh Shrapnel Wound.  The minority voter agrees with the VA’s assessments:  the left upper extremity rated 10% under code 5306 and the LLE rated 10% under code 5306.  The VA employed the anatomically applicable muscle disability codes, for which rating under VASRD §4.56 (evaluation of muscle disabilities) is very specific for shrapnel injuries.  The evidence satisfied the §4.56 criteria for moderate muscle disability (10% for codes 5306 and 5314) for both the left upper extremitylower and the LLE injuries.  Both were deep penetrating shrapnel wounds without explosive effect, the type of injury specified for “moderate” rating.  Both manifested loss of power, weakness, and logically fatigue and pain; thus, satisfying the cardinal signs required for “moderate” rating.  The §4.56 criteria for higher ratings were not supported by the evidence.  Criteria for ratings higher than 10% under any alternate VASRD codes were not supported by the evidence.  The clinical presentation did not change for either condition at TDRL placement and removal; therefore, a 10% rating for each condition and time period is supported.

The minority voter recommends the CI’s prior determination be modified as follows; effective as of the date medical separation:

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Post-Traumatic Stress Disorder	9411	50%	10%	
Left Elbow Shrapnel Wound	5306	10%	10%	
Left Thigh Shrapnel Wound	5314	10%	10%	
COMBINED	60%	30%	

AR20190001607, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.