RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD1300210
BRANCH OF SERVICE:  Army	BOARD DATE:  20131018
SEPARATION DATE:  20080507

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SSG/E-6 (13M30/Multiple Launch Rocket System [MLRS] and High-Mobility Artillery Rocket System [HIMARS] Crewman) medically separated for lumbar degenerative disc disease and major depressive disorder.  He developed lumbago from wearing his protective gear while deployed in 2005 and was ultimately diagnosed with non-surgical disc disease.  During this deployment he also began experiencing mental health issues and was diagnosed with major depressive disorder with associated generalized anxiety disorder.  Neither condition could be adequately rehabilitated to meet the requirements of his Military Occupational Specialty.  He was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB).  The lower back and mental health conditions, characterized as “osteoarthritis, lumbar vertebral,” “major depressive disorder,” and “generalized anxiety disorder” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (see rating chart below) for PEB adjudication.  The PEB adjudicated the “lumbar degenerative disc disease without motor neurologic deficit” as unfitting, rated 10% and the “major depressive disorder with associated generalized anxiety disorder” as unfitting, rated 10% with application of Veterans Affairs Schedule for Rating Disabilities (VASRD) standards.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “My condition has required me to have back surgery and I have since been diagnosed with TBI [traumatic brain injury] + Sleep Apnea.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified, but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting lower back and mental health conditions are addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The requested TBI and sleep apnea conditions were not identified by the PEB; and, therefore, are not within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service Admin IPEB – Dated 20080319	VA - (7 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder with Generalized Anxiety Disorder	9434	10%	Generalized Anxiety Disorder and Major Depression	9400	50%*	20071011	
Lumbar DDD	5299-5242	10%	Lumbar Disc Disease	5237	10%	20071003	
Obesity	Not a Physical Disability	No VA Entry	
Hyperlipidemia	Not Unfitting		
No Additional MEB/PEB Entries	Other x2	20071003	
Combined:  20%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20080407 (most proximate to date of separation [DOS])
* Rating increased from 30% which was effective 20060209 until 20060628 on VARD dated 20060725.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation.

Lumbar Degenerative Disc Disease.  The CI developed low back pain (LBP) over a several year period without any specific injury.  As time progressed, his back pain became more persistent and was exacerbated by routine activities.  He was treated with duty restriction, physical therapy, chiropractic care and non-steroidal anti-inflammatory (NSAID) drugs without relief.  A magnetic resonance imagining study revealed a three-level degenerative disc disease with herniated discs in the lumbar spine.  He received two epidural steroid injections that also proved ineffective at relieving his pain.  The narrative summary (NARSUM) prepared 4 months prior to separation noted the CI’s LBP was due to wearing heavy personnel protective gear during a deployment in 2005 and worsened because of the same stress during a subsequent deployment in 2006.  He described constant pain on a daily basis that was worse with prolonged standing, walking and heavy lifting.  He stated that despite his constant pain, he had very little problem with mobility or activities of daily living.  The pertinent physical exam findings are summarized in the chart below.  At the VA Compensation and Pension (C&P) exam performed 7 months before separation, the CI reported he took Toradol (a type of NSAID) daily for back pain which did help his back pain.  He reported daily back pain at a level of 3 out of 10.  He had flare-ups of his LBP pain 5 to 6 times over a 10-month period that usually occurred when he bent his back more than usual or strained it by moving something heavy.  He did not report incapacitation associated with back pain.  The pertinent physical exam findings are summarized in the chart below.  

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

Thoracolumbar ROM (Degrees)	Physical Therapy 8 Mos. Pre-Sep	VA C&P 7 Mo. Pre-Sep	
Flexion (90 Normal)	75	85	
Combined (240)	230	240	
Comment	Normal gait; Posture guarded; Pos. painful motion	Normal posture & gait; Mild muscle spasm on left; Pos. painful motion; No Deluca criteria; Normal reflexes & strength	
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB applied the analogous VASRD code 5299-5242, degenerative arthritis of the spine, and rated it 10% with specific application of VASRD standards.  The VA applied code 5237, lumbosacral or cervical strain, and also rated it 10% disabling.  Both VASRD codes applied in this case utilize the same VASRD rating formula (General Rating Formula for Diseases and Injuries of the Spine).  This formula uses ROM values to assign a rating level.  All documentation agrees that the ROM measurements and associated physical exam findings are consistent with the 10% rating level.  There is no VASRD §4.71a route to a rating higher than 10% under any applicable code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lumbar degenerative disc disease condition.

Major Depressive Disorder with Generalized Anxiety Disorder.  The CI, who did not have a history of mental health problems, experienced two significant psychosocial stressors within the 3-year period prior to separation.  The first incident occurred while he was on a 12-month deployment beginning in February 2005.  During that period, the documentation states that his wife was unfaithful, moved another man into the home and filed for divorce.  His two stepdaughters subsequently dropped out of school, one was abusing drugs.  The second incident occurred in July 2007.  One of his stepdaughters, the one abusing drugs, had moved into his home while she was rehabilitating and completing her general education requirements.  The CI bought her a car and a week later she was killed in a car accident.  After these two incidents, he experienced symptoms of anxiety and depression.  He was treated with anti-depressant medication without resolution of his symptoms.  The psychiatric NARSUM prepared 5 months prior to separation noted the CI felt pessimistic, depressed and occasionally anxious.  He experienced sleep impairment, vague suicidal thoughts, trouble focusing and poor concentration.  He stated that his symptoms affected his personal life, but did not seem to be interfering with his work.  The mental status exam revealed psychomotor retardation with good eye contact.  His mood was depressed and his affect was mildly constricted.  Cognitive function, thought, judgment and speech were normal.  There were vague suicidal thoughts with no intent or plan and there was no homicidal ideation.  The examiner opined that there is mild impairment because of his depression and the generalized anxiety disorder on his psychosocial functioning, but his employment does not seem to be suffering.

At the C&P exam performed 7 months before separation, the CI reported he had significant difficulty trusting others since his return from Iraq and has not had a relationship that had lasted more than 3 months since his divorce in 2006.  He reported that he consistently pushes women away because he is always waiting for things to go wrong in the relationship.  He also reported that he did not care about life issues and situations like he used to do indicating a degree of detachment from others and life.  There was sleep impairment, but no suicidal or homicidal thoughts and he was employed full time.  The mental status exam revealed unremarkable psychomotor activity, constricted affect with a depressed mood.  Recent memory was mildly impaired and his thoughts were “rambling”; however, his speech, judgment, and insight were normal.  His Global Assessment of Functioning (GAF) score was 61, consistent with mild to moderate psychological symptoms with limited difficulties at work and moderate problems in relationships.  The examiner annotated the following on the final C&P exam:  “Is there reduced reliability and productivity due to mental disorder symptoms?  No.”
The Board directs attention to its rating recommendation based on the above evidence.  The PEB applied VASRD code 9434, major depressive disorder, and rated it 10% utilizing language consistent with application of the VASRD standard.  The VA applied code 9400, generalized anxiety disorder, and increased the rating to 50% from the 30% rating he received 21 months earlier.  This 50% rating was questionable as the VA examiner answered “No” to the question that directly correlates with the 50% rating.  The Board adjudged that VASRD 4.129 was not applicable in this case.  Rating mental health impairment is accomplished by application of the General Rating Formula for Mental Disorders to the CI’s occupational and social impairment.  In this case, the documentation agrees that the CI had some social impairment with little occupational impairment due to his mental condition.  He did not exhibit any reduced reliability and productivity that is required for a 50% rating.  The CI‘s GAF was 61 which correlates with mild to moderate symptoms and can reasonably support a 30% or 10% rating.  Therefore, Board deliberations settled on the 30% vs. the 10% rating recommendation.  Protracted discussion ensued regarding the CI’s level of occupational impairment with specific consideration of the commander’s statement and the psychiatric NARSUM.  The commander’s statement documents “No Limitation” to all questions related to occupational impairment due to a psychiatric disorder yet documents that the CI “… has been a good soldier and did his duty when called, but now with all of the medical and personal/psychological issues plaguing him, he has become inconsistent in attendance and performance due to various appointments.”  The psychiatric NARSUM was also somewhat equivocal in its documentation of the CI’s impairment.  It contained statements that directly reflected no or very little occupational impairment along with statements that could be interpreted as reflecting more moderate occupational impairment.  The Board considered all entries and came to the consensus that the preponderance of the evidence was more consistent with a 10% rating under §4.130.  Additionally, the Board considered the PEB’s adjudication as “reasonable” and after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the major depressive disorder with generalized anxiety disorder condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the lumbar degenerative disc disease condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the major depressive disorder with generalized anxiety disorder condition and IAW VASRD §4.130, the Board, by a vote of 2:1, recommends no change in the PEB adjudication.  The single voter of dissent (who recommended a 30% disability rating), did not elect to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Lumbar Degenerative Disc Disease	5299-5242	10%	
Major Depressive Disorder with Generalized Anxiety Disorder	9434	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130429, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB / XXXXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXX, AR20130021810 (PD201300210)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl