RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300516
BRANCH OF SERVICE:  Army	BOARD DATE:  20140710
SEPARATION DATE:  20050722

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a drilling Reservist SFC/E-7 (88M/Motor Transport Operator) medically separated for a cervical spine condition.  The cervical spine condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U3L2S2 profile and referred for a Medical Evaluation Board (MEB).  The cervical spine condition, characterized as “chronic neck pains due to degenerative disc disease (DDD)” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Although not specifically listed on the MEB, the narrative summary (NARSUM) listed three other non-disqualifying (medically acceptable) conditions, one being anxiety disorder, not otherwise specified (NOS).  The Informal PEB adjudicated “chronic neck pain with DDD C-5/C-6 and most significant at C-6/C-7 and a large disc osteophyte involving the right C-7 nerve root” as unfitting, but not compensable due to existing prior to service without permanent service aggravation.  The CI appealed to the Formal PEB (FPEB).  The FPEB adjudicated the cervical condition to be unfitting, rated 10%.  The remaining conditions were determined to be not unfitting and not rated.  The CI concurred and was medically separated.

CI CONTENTION:  “My condition of PTSD was determined by two different doctor [sic] prior to separation from active services was rated improper.”

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 applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service FPEB – Dated 20050516	VA - (9 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain with Degenerative Disc Disease C5/C6…C6/C7 and a Large Osteophyte Involving the Right C7 Nerve Root	5237	10%	Degenerative Disc Disease of the Cervical Spine	5242	10%	20041101	
Anxiety Disorder, NOS	Not Unfitting	PTSD	9411	30%	20041101	
Other x 2 (Not is Scope)	Other x 2		
Rating:  10%	Combined Rating:  40%	
Derived from VA Rating Decisions (VARDs) dated 20050314 and20051011 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Neck Pain.  There were minimal records within the file that pertained to the neck pain condition.  There was an X-ray report from November 2004 which indicated degenerative changes in the lower cervical spine.  Historical information in regards to the neck condition was obtained through summary documents.  Absent direct trauma, the CI developed neck pain associated with numbness into his left shoulder/arm while deployed in December 2003.  He was treated conservatively with medication and physical therapy (PT).  A radiologic work-up in March 2004 revealed degenerative changes in the mid/low neck with nerve root (exit area of the spinal cord) involvement.  Specialty referral initially recommended a continuation of conservative treatment to include local injections.  Post-injections, his symptoms temporarily improved for approximately 2 months.  Later, a neurosurgical option was declined by the CI and he eventually was sent for an MEB.  At the MEB examination (8 months after release from active duty and 8 months prior to reserve separation), the CI reported his chief complaint as “my neck hurts.”  He had “constant daily neck pains” rated 7 of 10 pain scale and aggravated with cervical rotation.  “[He] is able to perform his duty with slight discomfort.”  The MEB physical exam (PE) noted lower neck tenderness with global limited and painful range-of-motion (ROM).  Both upper extremities demonstrated normal components of motor, sensory and strength.  His diagnosis was unchanged from prior radiographic findings and his functional limitations were many when combined in totality with other present conditions.  The commander’s statement included all the CI’s conditions and noted, “The bulk of his limitations impact the Army’s physical fitness test, whereby he will be unable to perform alternate events.”  At the VA Compensation and Pension (C&P) exam performed 9 months pre-Reserve separation, the CI reported neck pain extending into his left upper extremity with subjective left grip weakness.  The PE revealed painful and limited ROM.  There were no abnormal neurologic findings.  The goniometric 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.

Cervical ROM
(Degrees)	PT/MEB ~ 7.5 Mo. Pre-Sep
	VA C&P ~ 9 Mo. Pre-Sep
	
Flex (45 Normal)	35	45	
Combined (340)	225	265	
Comment	painful motion	painful motion	
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  Although citing different VASRD codes, both the FPEB and the VA noted limited motion for a 10% rating.  Board members agreed that sufficient evidence of painful motion IAW §4.59 were present to justify the PEB’s 10% rating at separation.  Board members also considered application of §4.40 (functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled,” and clearly, the persistence of painful motion was such the case in this condition.  Additionally, the degenerative changes (arthritis) found on X-rays supports the 5003 criteria, but without “incapacitating episodes” would rate a maximum and total rating of 10%.  There are no available alternative joint or analogous coding options which are applicable and or advantageous to the CI’s current 10% rating.  Board members agreed that §4.59 or §4.40 was supported by the evidence to achieve the minimum compensable rating of 10%.  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’s adjudication for the chronic neck pain condition.

Anxiety Disorder.  The CI returned from an Iraqi deployment in February 2004.  Service treatment records (STRs) dated July 2004 indicated a chronic depressed mood stemming from traumatic exposures while deployed.  “[He] was attacked several times by RPG’s and IED’s while on patrol.”  He initially reported intrusive thoughts, nightmares, insomnia and poor concentration.  A provisional diagnosis of posttraumatic stress disorder (PTSD) with an S2 profile was rendered by his primary care provider.  A 12-month enlisted evaluation report (NCOER) ending in January 2004 noted the maximum in senior rater endorsement of “successful” and “superior.”  The VA psychiatric C&P examination performed on 1 November 2004 (7 months after active duty and 9 months prior to reserve separation), the CI endorsed insomnia, anxiousness, increased startle response, poor concentration, lack of energy and interest, isolation, and nightmares of his Iraqi deployment.  Despite such symptoms, he is still able to function as a State Trooper…and has done so since 1997.  His mental status examination (MSE) indicated evidence of “mild” depression, anxiety and psychomotor retardation (a slowing of thoughts as well as physical movements).  “He does get some nightmares, intrusive memories, startle, hyper-vigilance, and he is a bit more isolated.”  His Global Assessment of Function (GAF) was 60; connoting “moderate” impairment.  His diagnosis was PTSD.  At the psychiatric NARSUM performed on 7 February 2005 (3 months after the psych C&P), the examiner summarized the CI’s deployed experiences.  “[He] observed scenes of destruction and dead and/or burnt bodies in Iraq.  Upon redeployment, he experienced depressed mood, insomnia, fatigue, and decreased concentration.”  There were no suicidal/homicidal ideations or dangerous behavior observed.  His present condition included, “His overall symptoms are significantly improved” while on antidepressant medications.  His MSE was completely normal and his mood was described as “more focused, more active.”  His GAF was 75, nearing “transient” impairment.  The examiner concluded that the CI did not meet PTSD diagnostic criteria and that the CI did not have a psychiatric condition that precluded the performance of military duties; thereby meeting psychiatric retention standards IAW AR 40-501.  His diagnosis was anxiety disorder, NOS.  At a subsequent psychiatric assessment in April 2005, the CI endorsed having dreams of his deployment “once a week” associated with a depressed mood, lack of motivation, irritability and insomnia.  He denied mood swings, racing thoughts, hyperactivity, panic attacks or phobias.  Noting a GAF of 60, the psychiatrist again diagnosed PTSD.

The Board directs attention to its rating recommendation based on the above evidence.  Additionally, the Board carefully reviewed the entire STR for evidence of inappropriate changes in diagnosis of the MH condition during processing through the Disability Evaluation System (DES).  The available records show that the diagnosis of PTSD was first rendered by the DoD before initiating the DES process and subsequently was changed to anxiety disorder at the MEB NARSUM examination.  Disability associated with any psychiatric condition, regardless of the diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130 general rating formula for MH conditions.  The Board determined the criteria for the Terms of Reference (TOR) for the MH Diagnosis Review Project was met.  The PEB adjudicated the anxiety disorder as not unfitting.   The VA rated the MH condition as PTSD, coded 9411 at 30%.  The Board’s main charge is to assess the fairness of the PEB’s determination that the anxiety disorder was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

The MH condition was profiled and implicated in the commander’s statement and not judged to fail retention standards; noted as S2 on the profile.  Although Board members conceded PTSD-like symptoms with associated anxiety were present near the time of separation, there was no performance based evidence that any identified MH condition significantly interfered with his military duties.  Improved mental status and denial of prior racing thoughts, panic attacks and mood swings coupled with evidence of continued employment as a state trooper additionally supported the ability to adequately perform in his military MOS.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the anxiety disorder condition and so no additional disability ratings are recommended.

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 chronic neck pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the anxiety disorder, NOS condition, the Board unanimously recommends no change from the PEB’s determination as not unfitting.  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.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130513, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20140016340 (PD201300516)

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						     

CF: 
(  ) DoD PDBR
(  ) DVA