RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX		CASE: PD-2017-00390 BRANCH OF SERVICE: AIR FORCE	SEPARATION DATE: 20050214

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve O4, Emergency Services Physician, medically separated for “depressive disorder associated with pain disorder and right patellar subluxation/knee pain,” rated 30%, less aggravating/contributory factors of 20% for a final disability rating of 10%.

CI CONTENTION: “Severe depression due to constant neck, back [and] leg pain, [and] anxiety [and] insomnia. Chronic untreatable pain, neck, back, knee, leg [and right] foot. 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 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 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 - 20050106	VARD - 20050621	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Depressive Disorder [and] Pain Disorder [with] Right…Knee Pain	9434	10%	Major Depressive Disorder (MDD)	9434	10%	20040816	
			Degenerative Changes, Right Knee	5010	10%	20040824	
Herniated Nucleus Pulposus, L1-L2	Cat II	Degenerative Changes with Herniation at L1-2	5242	10%	20040824	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 30%	
	
ANALYSIS SUMMARY:

Depressive Disorder and Pain Disorder with Right Knee Pain. The panel’s initial charge in this case was directed at determining if combining conditions under a single rating was justified in lieu of separate ratings. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s right knee condition began while training for parachute landings in March 2003. The next month, he reported straining his right knee climbing up and down mountain rocks during survival training. He was evaluated by behavioral health (BH) in August 2003 and diagnosed with pain disorder associated with psychological factors. In September 2003, an orthopedist diagnosed lateral patellar subluxation and surgery was discussed, but the CI declined.

The 12 September 2003 MEB NARSUM, 17 months prior to separation, noted right patellar subluxation with intractable pain and psychological stress. The examiner recommended medical disqualification due to the degree the CI’s knee problems were interfering with his life and job performance;   refusal   of   therapeutic   options;   and   ongoing   psychological   issues.   The   17 September 2003 profile restricted running, marching, climbing, physical training or lifting more than 5 pounds, and work shifts were recommended to be limited to 12 hours at a time with 12 hours off between shifts. The CI was released from active duty on 20 October 2003, but remained in the Reserves until the completion of his PEB. Panel members considered whether the mental health (MH) disorder and right knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting, and concluded there was not a preponderance of evidence in the service records which overcame the presumption that each condition was reasonably considered separately unfitting and eligible for disability rating at separation.

MH Disorder. A 1999 MH examination indicated the CI was being evaluated for an adjustment disorder with depressed mood. During the period of active duty under review, he sustained the knee injury as discussed above, and since that time, he reported chronic pain that impaired his social and occupational functioning.

An 18 August 2003 BH examination, 18 months prior to separation, noted complaints of increased irritability, sadness, frustration, decreased energy and concentration, and preoccupation with pain resulting in decreased interests. The CI had been an emergency room (ER) physician for 18 years, but had recently quit to join the Air Force. There was marital stress that pre-dated his pain issues and were exacerbated due to his joining the Service. His wife was unhappy with his decision, which he described as a sort of “mid-life crisis.” He also expressed personal regrets. The mental status examination (MSE) showed an irritable and dysphoric mood with a sad affect, but the CI denied suicidal or homicidal ideation, and there was no evidence of memory impairment. The examiner observed pain behaviors that did not match reported pain levels rated at 9-10/10, and physical findings from a medical work-up that did not appear to account for the severity of pain and impairment. The BH assessment was pain disorder associated with both psychological factors and general medical condition. The examiner indicated the CI’s pain appeared highly correlated with affective distress and noted the prospect of an MEB with removal from unsatisfying life circumstances could be reinforcing ongoing pain. Recommendations included a trial of physical therapy, increased activities, further MH evaluation and participation in a chronic pain management group.

At a psychiatric examination on 8 September 2003, the CI reported poor sleep due to knee and foot pain. Preoccupation with pain was noted with decreased interest in other activities, depressed moods, and diminished concentration. He also reported mild alcohol consumption patterns. The psychiatrist noted the pain condition appeared to have strained an already stressed marital relationship, and also that the CI was aware he was likely to have an MEB for the right knee pain and appeared to be looking forward to it; his pain worsened since the knee condition was determined to be incurred in the line of duty. The Axis I diagnosis was pain disorder with both psychological factors and a general medical condition. Psychological testing was planned, but the CI did not attend two scheduled appointments. The 12 September 2003 MEB NARSUM examination, 17 months prior to separation, noted complaints of psychological stress due to pain and exacerbation of marital problems. There was no evidence in the STR that showed the CI was unable to perform his duties due to MH symptoms. In a letter to his Senator he stated, “I performed my job with the 89th ASF well, until I could no longer do such due to severe pain from my injuries.”

At the 24 August 2004 VA Compensation and Pension (C&P) examination, 6 months before separation, the CI reported depression and anxiety related to disability and chronic pain. He had been treated with an anti-depressant (Celexa) and an anti-anxiety agent (Ativan) while on active

duty, which were helpful, but he had not worked since his injury and was unable to function as before. He reported worsening depression symptoms of sadness, loss of interest and motivation, excessive sleeping, social withdrawal, irritability and anxiety. He lived alone, had been separated from his wife since prior to the injury, and no longer dated. He reported having been very happy and outgoing, working 14-hour days as an ER doctor. The MSE showed restricted affect and the CI appeared dysphoric and irritable. There was occasional suicidal ideation (SI), once every 6 weeks or so, without intent, but he denied current SI. He reported constant feelings of depression due to chronic pain and being disabled, and drank six to eight beers 3-4 times a week when out with his brother, but denied having alcohol at home. He stated that some of the drinking was for pain control.  The Axis I diagnosis was MDD, secondary to military injury.

Several STR notes on 14 December 2004, 2 months before separation, indicated the CI called the military treatment facility (MTF) ER for help with depression and SI. He was thinking of shooting himself with his 9 mm handgun and reported drinking that evening. The local authorities were called and arrived while he was still on the phone with the ER and arranged his transport to a local facility. Treatment notes indicated that he was evaluated at a local civilian hospital and released to go home. He was contacted by telephone a few hours later by the MTF and his conversation was appropriate with no suicidal or homicidal intent. At a VA MH examination, later that same day, the CI reported receiving an official notification of his divorce finalization 4 days earlier. He had been stable on his psychotropic medications (Celexa and Ativan), but had run  out for a while and felt his depression had returned. He was not working and lived alone, and had no interest in dating or going out in public, but he denied psychotic features. The CI had been married twice--once briefly with his second marriage lasting 5 years. He felt depression was unlike him and that he was usually a happy person who could handle stress, but during the course of the second marriage things had deteriorated. He reported being close to his mother and two siblings, but recalled being “stressed out” during childhood and that his father had been an alcoholic. The CI drank 3-4 days a week (two to four beers each time), and described it as mostly social drinking for something to do to relax. On MSE, he appeared his stated age and had “excellent grooming and hygiene.” His mood was dysphoric, with a stressed, anxious affect and he denied SI. There was “a bit” of difficulty with concentration and attention span, but otherwise the examination was unremarkable. The Axis I diagnosis was MDD secondary to military injury and pain along with recent marital failure. The GAF assignment was 50 (on the cusp of moderate impairment).  His Celexa was continued and an anti-anxiety agent was added (Xanax).

The 1 January 2005 PEB AF 365 Form remarks section noted the CI’s MH condition prevented him from reasonably performing his duties. The PEB opined that his social and industrial adaptability impairment rating was best described as mild as evidenced by a GAF of 70. The PEB also noted that the CI’s “alcohol dependence,” a non-ratable/non-compensable condition, significantly affected the severity of his depressive/pain disorders, and were it not for this condition, his impairment would best be described as mild IAW with DoD/VASRD guidelines with a disability rating of 10% (30% IAW VASRD 4.130, less 20% for contributing factors as noted above).

At a 13 January 2005 VA MH examination, 1 month prior to separation, the CI reported improvement in depressive symptoms while on his medication, but denied SI. He remained paranoid in public, did not like to go to the store or be around anyone, and had no relationships. He did not want to work or be around any stress, but had thought about possibly doing volunteer work. The MSE showed a dysphoric mood, slight anxiety, and that the CI was “somewhat paranoid.” The examination was otherwise unremarkable, and the Axis I diagnosis was MDD and anxiety disorder with panic and GAF assignment of 45-50 (serious impairment). Quetiapine (antipsychotic that may be used for depression) was added to his medications.

At a 28 October 2005 VA MH examination, 7 months after separation, the CI reported an inability to work due to depression, but was compliant with his medications, which seemed to help. He reported being somewhat anxious recently, which caused an eczema flare-up on his legs.       He

denied SI, lived alone and had no relationships, but was thinking of volunteer work. The MSE showed mild dysphoria with an appropriate affect. Memory, insight and judgment were fair and the remainder of the examination was unremarkable. The Axis I diagnosis was MDD secondary to military injury and pain along with recent marital failure, and GAF assignment was 50.

The panel directed attention to its rating recommendation based on the above evidence. As noted above, the PEB rated the MH disorder and right knee pain 10% (after a 20% deduction), coded 9434 (MDD). The VA rated the MH disorder 10%, coded 9434, based on the C&P examination, citing “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; or symptoms controlled by continuous medications.” The panel first considered whether application of VASRD §4.129 was indicated in this case, and agreed that it was not as the MH disorder was not due to a “highly stressful event.” Panel members next considered a rating recommendation IAW VASRD §4.130, and noted that although the CI was not working after separation, the course of his MH symptoms as described in the STR was consistent with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. It also appeared that he voluntarily took himself out of the occupational arena following release from active duty to avoid stress. There would be numerous occupational opportunities for someone with the CI’s training and experience, and there was no indication he had pursued alternative work situations (other than ER work, which the panel acknowledges is a high stress job). The panel agreed that a 30% rating was supported for “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily).” There was no evidence of stereotyped speech, frequent panic attacks, deficits in comprehension and memory, impaired judgment or psychiatric hospitalizations for a higher 50% rating. Although the PEB assigned a 30% rating and deducted 20% for contributing factors, once a condition is found unfitting, the panel must make its rating recommendation IAW VASRD rating criteria. Therefore no deduction is recommended to the PEB’s 30% rating IAW §4.130. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the MH disorder, coded 9434.

Right Knee. According to the STR and NARSUM, the CI’s right knee condition began as elaborated above. Initial X-rays were normal, but an MRI in July 2003 showed right knee joint effusion, degenerative changes, pre-patellar bursitis, lateral patellar tilting with patellar subluxation, chondromalacia and a lateral synovial plica. An orthopedic examination on 12 September 2003 noted complaints of right knee pain of undefined focus, and the CI reported lateral patellar pain when going up stairs and locking relieved by flexion and re-extension. The MEB NARSUM examination, the same day, recorded complaints of right knee pain that interfered with the ability to work, caused psychological stress, and exacerbated marital problems. Physical findings showed right knee patellar grinding, but was otherwise normal.

The VA C&P examination noted the CI had incurred a chip fracture of the right patella after a fall in March 2004 (not on active duty). He reported pain rated at 7-8/10 with weakness, stiffness, swelling, fatigability and lack of endurance. He wore a knee brace, but did not use a cane, and denied decreased function, dislocation or recurrent subluxation. The examiner documented right knee tenderness and swelling as well as an obvious chip fracture on the anterior patella. Right knee range of motion (ROM) testing showed painful extension to 0 degrees (normal) and painful flexion to 140 degrees (normal), with crepitus. There was no additional limitation of motion with repetition. Right knee X-rays showed minimal degenerative changes of the patellofemoral joint and medial compartment of the knee.

The panel directed attention to its rating recommendation based on the above evidence. As noted above, the PEB rated the MH and right knee condition 10%. The VA rated the right knee condition 10%, coded 5010 (arthritis due to trauma) based on the C&P examination, citing

“painful or limited motion of a major joint.” Panel members agreed that while there was no compensable limitation of flexion or extension (5260 or 5261), there was evidence of painful motion with functional loss supporting a 10% rating (based on §§4.59, 4.40 and 4.45), coded 5299-5260 (limitation of leg flexion). Other VASRD knee and analogous codes were considered, but all were less applicable or not advantageous to rating. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right knee condition, coded 5299-5260.

Contended PEB Condition: Herniated Nucleus Pulposus (HNP), L1-L2. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting. The contended condition was not profiled and did not 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 there was insufficient cause to recommend a change in the PEB fitness determination for the contended HNP, so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the unfitting MH disorder, the panel recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130. In the matter of the unfitting right knee condition, the panel recommends a disability rating of 10%, coded 5299-5260 IAW VASRD §4.71a. In the matter of the contended back condition, the panel recommends no change from the PEB determination as not unfitting. There are no other conditions within the panel’s scope of review for consideration.

The panel recommends 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 the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Depressive Disorder	9434	30%	
Right Patellar Subluxation/Knee Pain	5299-5260	10%	
	COMBINED	40%	

DEPARTMENT OF THE AIR FORCE
WASHINGTON DC

Office of the Assistant Secretary

SAF/MRB
3351 Celmers Lane
JBA NAF Washington, MD 20762-6435
Dear XXXXXXXXXXX:
Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-00390.
After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not in accordance with the guidelines of the Veterans Affairs Schedule for Rating Disabilities. Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay
I have carefully reviewed the evidence of record and the recommendation of the Board.
I concur with that finding, accept the recommendation and determined that your records should be corrected accordingly. The office responsible for making the correction will inform you when your records have been changed.
As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP). Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election. If a valid election is not received within 90 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married, in such a case, failure to render an election will result in automatic enrollment by law.