RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-02169
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070809

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Chemical Operations Specialist, medically separated for “major depressive disorder” and “chronic left foot pain,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  “Has been unemployable since being discharged from the Army.”  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’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 - 20070517	VARD - 20080808	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	PTSD	9411	50%	20080603	
Chronic Left Foot Pain	5279	10%	Metatarsalgia, Left Foot	5279	0%	20080603	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Major Depressive Disorder (MDD).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI was deployed from 21 October 2003 until probably 21 July 2004 (the dates are not consistent and include 28 April 2004, 21 July 2004 and 31 July 2004).  The post-deployment questionnaire dated 2 April 2004 noted the CI did not see killed or wounded, was not engaged in direct combat in which he fired his weapon, did not feel in danger of being killed, and denied symptoms of depression or PTSD (post-traumatic stress disorder).  The same responses were made on a subsequent post-deployment questionnaire dated 1 July 2004.  

The CI was initially seen by mental health (MH) on 20 September 2005 following a break-up with his fiancé the previous July.  He had re-enlisted for her and regretted this decision.  He was also geographically separated from his former fiancé.  He endorsed symptoms of depression and was diagnosed with an adjustment disorder initially (changed to depression during the second appointment) and begun on medications (for depression).  He was also seen regularly in the MH clinic for counseling and noted some improvement over time.  There was a break in MH encounters between 1 December 2005 and 7 September 2006.  The CI reported that he had been transferred to an infantry unit and had difficulty with the new unit.  He was also told to move out of the barracks into an apartment, but advised that he would not get a housing allowance (the panel recognized this inconsistency).  He had gone to the inspector general’s office over this and now felt there was subsequent conflict with his command.  The diagnosis remained as depressive disorder.  

On 27 September 2006, he reported that he had been in a mortar attack while deployed and endorsed anxiety, avoidance, and an increased startle (this is the first recorded reporting of these symptoms).  He was also diagnosed with an anxiety disorder and it was noted that his symptoms were consistent with PTSD.  On 5 October 2006, he noted that an RPG had hit a gym on 4 July 2004 and that he had been ambushed while driving his vehicle in April 2004 about the time his tour was extended.  The panel observed that the reported RPG incident was several days after the second post-deployment survey had been completed, but that the time period for the ambush was encompassed by the second survey and the ambush was not recorded.  He was thought to have chronic PTSD and an adjustment disorder with depressed mood.  He continued counseling and medications with improvement in his symptoms.  The CI was referred for MEB due to left heel problems (discussed below) during his MH treatment.  

During the 23 January 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported nightmares and post-deployment stress.  During the physical examination the psychiatric examination was checked “normal.”  A 1 February 2007 encounter noted that the CI would be assessed for level of MH function.  The panel observed that up to that point the CI had carried an S1 profile.  

On 11 April 2007, the CI reported that his symptoms were improving with the medications.  He felt like an outcast at work, but that “things are good at home with his girlfriend.”  The mental status examination (MSE) noted that his mood was “better” and otherwise unremarkable.  He was seen again 2 hours later for the MEB MH NARSUM and reported long-standing problems with attention.  His MSE was remarkable for quiet speech in a monotone, depressed and anxious mood, and blunted affect but was otherwise unremarkable.  The change in mood from the prior appointment was not addressed by the examiner.  The same-day MEB NARSUM psychiatry addendum noted the complaints of the above history and referred to the reported ambush and RPG attacks.  He continued to have nightmares, but weekly vice nightly.  He also noted intrusive memories and avoidance, decreased social interactions, foreshortened future, poor sleep and concentration, irritability, and hypervigilance.  Psychological testing was consistent with depression and PTSD.  The MSE showed he was guarded and had a decreased range of facial expressions.  Mild restlessness was present along with a vocal tremor in his speech.  His affect was constricted and worried and his mood was depressed.  Insight and judgement were poor.  The examination was otherwise unremarkable.  The CI was diagnosed with chronic PTSD, MDD, and attention deficit hyperactivity disorder (ADHD).  He was thought to have moderate military and social impairment.  The first two diagnoses did not meet retention standards; the ADHD did.  The panel noted and could not account for the wide variability in the three MSEs which were all done the same day (11 April 2007).  On the 24 April 2007 CI statement to the PEB he noted that he had been involved in an ambush and in a rocket attack which killed three soldiers.  
In MH on 9 May 2007, the CI had a normal MSE by a psychiatrist.  Several hours later, the treating psychiatrist noted that the CI was neat and oriented with normal speech but agitation was present.  The mood was depressed and anxious and the affect was also anxious.  Memory, concentration, judgement and insight were good.  The examination was otherwise unremarkable.  He was released without limitations.  

A memorandum for the PEB dated 17 May 2007 noted that, based on an interview with an officer in the CI’s unit, the CI displayed “no obvious traits which would render him unemployable or interfere with his long term employment in a civilian setting.”  His industrial impairment was rated as mild.  On 24 May 2007, 2 months prior to separation, the CI had a normal MSE and was released without limitations.  

The final MH note in evidence was dated 28 June 2007, 6 weeks prior to separation.  He reported continued improvement in his symptoms with the medications.  He was neatly dressed and the MSE was normal.  He was given a 3-month supply of medications and a copy of his health records to provide to the VA where he planned to continue treatment.  

At the 3 June 2008 VA Compensation and Pension (C&P) examination, 10 months after separation, the CI reported poor sleep, nightmares, problems with his memory and concentration, anger and irritability, depression, flashbacks, and a strong startle response.  He reported that over the past year his symptoms had become more frequent, persistent, and severe.  He had run out of medications the previous November and was not in treatment.  He was self-medicating with alcohol and marijuana (drug use prior to enlistment was noted on the MEB 2807-1).  He was socially isolated, living with his mother, and unemployed.  On examination, he appeared mildly anxious and uncomfortable as the interview progressed.  The examination was otherwise normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the MH disorder 10%, coded 9434 (MDD), noting that the PTSD stressors cited were not substantiated and clearly refuted by the post-deployment questionnaire.  The panel also noted that the PEB inaccurately cited the questionnaire as being completed on 4 February 2004 whereas the correct date was actually 2 April 2004.  The panel also observed that the ambush (reported to have occurred in April) was not documented on the 1 July 2007 post-deployment questionnaire.  The rocket attack reported by the CI was after this though.  Regardless, the panel observed that the CI concurred with the PEB findings.  The VA rated the MH disorder 50%, coded 9411 (PTSD), based on the C&P examination, citing the VASRD criteria for a 50% rating.  

The CI initially sought MH treatment after his engagement ended and he moved to a new location.  This was coincident with an unwelcome transfer to the infantry.  He had re-enlisted to be with his former fiancé, and regretted the reenlistment.  This was just over a year before he reported any symptoms of anxiety associated with his experiences while deployed.  The CI was not awarded a combat action or combat infantry badge.  Neither of the post-deployment surveys supported these events and the CI accepted the PEB adjudication.  Although the MEB forwarded PTSD to the PEB as one of the medically unacceptable diagnoses, the panel determined that the evidence was not sufficient to overcome the PEB determination that the MDD was the unfitting diagnosis.  

Prior to recommending an impairment rating under VASRD §4.130, panel members 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.”  All panel members agreed that regardless of the diagnosis, a specific traumatic event could not be validated.  The initial MH visits did not mention any combat-related trauma, the CI did not report any events in the post-deployment screens, and there were no combat related awards in evidence.  Although some contribution of Service stressors to the psychiatric condition were clearly present; the requisite §4.129 link that the condition occurred “as a result of a highly stressful event” was not adequately satisfied.  The panel therefore, only considered the VASRD §4.130 impairment present at or near separation for a single rating recommendation.  The panel then considered the rating.  It noted that the memorandum to the PEB suggested the CI was working adequately in, and the final clinical note, 6 weeks prior to separation, showed the CI was doing well on medications with a normal MSE.  A review of the records showed that although the CI was not happy in his current position, there is no evidence that he was unable to meet his duty requirements and a 30% rating is not supported at separation.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the MDD condition.  

Chronic Left Foot Pain.  According to the STR and MEB NARSUM, the CI was diagnosed with a fractured calcaneus (heel bone), 2 months after he fell off a 20-foot cliff.  He was treated with a cast.  Serial X-rays beginning on 25 July 2005 showed a healing non-displaced fracture of the calcaneus.  On 26 July 2006, one week after a sprain, an X-ray noted that the fracture was healed, but there was damage to a tendon (probably the Achilles, although this is not specified).  The CI was referred to podiatry.  On 9 August 2006, degenerative changes were noted on the X-ray, and motion of the left ankle was painful and restricted.  An MRI was ordered to look at the integrity of the ligaments.  It showed evidence of prior injury of several ligaments though these were stable on examination.  The CI was treated with medications, injections, and bracing, but his pain persisted and he could not perform full duty.  He was noted to have an abnormal gait and his condition was thought to probably be intractable. 

During the 23 January 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported painful and limited walking.  Physical examination noted a painful gait and the inability to heel and toe walk.  The 20 April 2007 MEB NARSUM, 4 months prior to separation, noted complaints of ongoing left heel pain.  Physical examination showed a stable ankle with full strength.  Sensation was decreased in a non-anatomical distribution.  Coloration was normal.  Dorsiflexion (toes up) was 10 degrees (normal 20) and plantar flexion (toes down) was 60 (normal 45).  Motion was limited by pain.  

At the 3 June 2008 C&P examination, 10 months after separation, the CI reported ongoing foot pain if he stood more than 15 minutes or walked over a block, but he denied instability.  Physical examination showed a mild limp from his left heel.  He could walk on his toes but not his heels.  Achilles alignment showed 8 degrees valgus bilaterally.  Dorsiflexion was 20 degrees bilaterally and plantar flexion 45 degrees bilaterally.  Painful motion was absent.  The heel and (probable) lateral malleolus were tender.  The ankles were stable.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left foot condition 10%, coded 5279 (metatarsalgia), citing full motion, but a painful gait.  The VA rated the left foot condition 0%, coded 5279, based on the C&P examination, citing full and pain-free motion.  X-rays did not show arthritis.  The panel determined the PEB examination was closer to separation and more consistent with the impairment documented while on active duty.  It was therefore assigned a higher probative value for rating at separation.  Painful and limited motion was noted on PEB examination and supported a 10% rating using the code 5271 (limited motion of the ankle).  The VA examination supported the 0% rating adjudicated by the VA.  While the panel considered 5271 to be a better code than the 5279 code used by the PEB and VA, it provided no rating advantage to the CI.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the chronic left foot pain condition.  

BOARD FINDINGS:  In the matter of the MDD condition and IAW VASRD §4.130, the panel recommends no change in the PEB adjudication.  In the matter of the chronic left foot pain condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  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.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170403, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180015054, 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.

Sincerely,					       

Enclosure