RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-00650
BRANCH OF SERVICE: Army	BOARD DATE:  20140618
SEPARATION DATE:  20051216

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized National Guard SPC/E-4 (11B/Infantryman) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P3/L3 profile (S1) and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain” and “herniation of nucleus puplosis w/left leg pain,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB (IPEB) adjudicated “chronic back pain, with L5-S1 herniated nucleus pulposus w/o significant abnormality” as unfitting, rated 20% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI non-concurred with the PEB’s findings requesting additional conditions be considered and a Formal PEB (FPEB).  A FPEB adjudicated the same condition as unfitting, but lowered the rating to 10% citing receipt of contradictory evidence to the CI’s testimony.  The FPEB also indicated that the diagnosis of posttraumatic stress disorder (PTSD), presented at the time of the FPEB was not included on either the profile or MEB and in the absence of corroborating information from the CI’s unit, the condition was adjudicated as not unfitting.  The CI non-concurred with the FPEB’s findings and submitted a rebuttal.  A review by the PEB and the USAPDA upheld the FPEB’s decision. The CI was then medically separated.

CI CONTENTION: The CI elaborated no specific contention in his application.

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 20051026	VA - (8 Mos. Post-Separation)*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain w/L5-S1 Herniated Nucleus, w/o Significant Neurologic Abnormality	5243	10%	Degenerative Disc Disease, L5-S1	5243	20%	20060729	
PTSD	Not Unfitting	PTSD	9411	50%	20060729	
Others X 0 (Not in Scope)	Other x 5	20060729	
Combined:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20061212 (most proximate to date of separation [DOS]).   *The exam had an addendum dated 20061205, not in the record, that revised the ROMs used in the original C&P exam.

ANALYSIS SUMMARY.  

Chronic Back Pain.  The narrative summary (NARSUM) notes the CI suffered a back injury in an improvised explosive device (IED) explosion on 23 September 2004 in Iraq.  This resulted in left leg pain and weakness refractory to nonsurgical treatment.  The CI was not deemed a candidate for surgical intervention.  On clinic examination on 8 July 2004, active range-of-motion (ROM) of the spine was normal with normal motor, sensory and reflex exams.  Special X-ray studies of the spine (magnetic resonance imaging) performed on 9 July 2004 revealed a small lower disk disc without nerve impingement.  On examination of the spine on 2 August 2004, motor strength, reflex and sensory exams were normal.  On neurosurgical evaluation on 14 September 2004, the CI reported back and left leg pain, with decreased sensation and weakness in the left lower extremity.  On examination, gait was reported as antalgic with slightly increased reflexes but decreased motor strength in the left lower leg.  Nerve conduction studies were obtained at this time and were reported to show no neuropathy.  On neurology evaluation on 3 May 2005, motor strength and reflexes were reported as normal in the left leg.  Gait was described as “mildly” abnormal, but heel and toe walking was normal.  Repeat nerve conduction studies obtained on 4 May 2005 revealed a question of left lumbosacral radiculopathy of indeterminate level but no evidence of sciatic (lower leg) neuropathy.  At the MEB/NARSUM general exam on 20 July 2005, 5 months prior to separation, the CI was in no apparent distress.  An abnormal gait with limp was reported.  Motor strength and reflex exams were normal.  Some “decreased ROM on the left side secondary to pain” was reported.  No quantitative ROM was recorded.  The examiner opined that the disc did not cause nerve impingement and nerve conduction studies were not consistent with sciatica.  A PT evaluation was performed for the FPEB on 16 November 2005.  This study was not in the record but is quoted in the FPEB decision below.  At the VA Compensation and Pension (C&P) general exam on 29 July 2006, 7 months after separation, the CI reported continued pain and numbness in the left posterior thigh area.  He was dependent in his activities of daily living and was able to do yard work, and was employed at a desk job, not limited by his leg numbness.  He reported missing no work and no episodes of incapacitation.  On examination a slightly antalgic gait was noted.  Posture was normal.  Tenderness of the lower spine without spasm was reported.  Motor and reflex exams were normal.  A slight decrease in sensation was present in the lower left leg.  ROMs were obtained but were recorded ‘incorrectly’ and a clarifying PT examination was requested for the VARD.  The Board directs attention to its rating recommendation based on the above evidence.

On 6 October 2005, the IPEB, rated the back disorder 20%, coded 5243 IAW §4.71a.  The IPEB cited no quantitative ROM measurements but “ROM reduced by pain and antalgic gait.”  This rating was decreased to 10%, under the same code, by an FPEB on 26 October 2005, citing new data from a PT exam of 22 September 2005, not in the record.  Data quoted were: lumbar ROM limited by pain without neurologic abnormality and five positive Waddell Signs (signs of malingering).  The VARD, performed on 12 December 2006, rated the back condition 20%, coded 5243, quoting data from a clarifying PT exam of November 16, 2006.  The data quoted were: flexion of 50 degrees (normal 90 degrees) with “no additional limitation due to pain, fatigue, weakness or lack of endurance or incoordination.  Under code 5243 a rating of 10% requires forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees.  The next higher rating, 20 %, requires flexion of the lumbosacral spine greater than 30 degrees, but not greater than 60 degrees.  The next higher rating, 40%, requires flexion of the lumbar spine of 30 degrees or less.  The Board agreed that the predominance of evidence supported that the CI had a reduced ROM of the lumber spine from pain.  The Board was unable to ascertain the quantitative degree of reduction from the DES or the service treatment record (STR) available.  The Board noted the only evaluation of the spine with quantitative ROM measurement of 50 degrees was the VA examination of November 2006, 7 months after separation.  However, this exam was internally inconsistent with the reported normal posture and absence of spinal tenderness.  After discussion, the Board unanimously agreed the preponderance of evidence in record supported a rating of 10% for the back condition for reduced ROM.  The Board considered a rating under code 5243, incapacitating episodes/intervertebral disc syndrome.  An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed and treated by a physician.  A rating of 10% under this code requires incapacitation of at least a week in the prior 12-month period.  The Board agreed that no rating could be recommended under this code.  The Board considered a rating IAW §4.123 (neuritis, peripheral nerve).  The Board agreed there was no evidence for ratable peripheral nerve impairment in this case, since no sustained motor weakness was present, nerve conduction studies were negative for peripheral neuropathy and sensory symptoms had no functional implication.  The Board found no other appropriate codes for consideration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the back condition.

Contended Mental Health (MH) Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the PTSD condition 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 CI was returned from Iraq in November 2003 for repair of an inguinal hernia.  The record suggests the he was offered combat stress group therapy at this time which he did not attend.  The CI first presented for MH evaluation in April 2004 reporting flashbacks, hearing voices and hypervigilance.  He was given the diagnosis of PTSD by psychiatrist on 5 May 2004 and begun of oral psychotropic medication (Lexapro).  On follow-up evaluation on 24 May 2004, the CI reported a “significant reduction in anxiety/flashbacks and an increased in social activities.”  Mental status exam (MSE) was normal without suicidal or homicidal ideation (SI/HI) or hallucinations.  Medication was continued.  On evaluation 13 August 2004, the CI reported symptoms of startle response had further improved and denied flashback.  On evaluation on 1 October 2004, the CI was doing well and denied PTSD symptoms; MSE was normal.  The interval for follow-up care was increased and termination of medication was to be considered at next visit (December 2004).  On 27 December 2004, the CI was admitted to the psychiatry service for 3 days when he awoke from sleep “poorly responsive and screaming” stating he was having a nightmare about combat.  However, he noted remembering only “bits and pieces.”  At arrival at the hospital, the CI was “cooperative and pleasant with a normal MSE.”  The CI reported not taking any psychotropic medication and a similar episode after hernia surgery in June 2004.  He noted his last dreams and flashbacks to be 7 months prior.  He denied HI and any PTSD episodes.  The CI voiced that he “should not have been admitted to the hospital...it was a mistake.”  Lexapro at a lower dose than May 2004 was restarted.  After discharge on examination on 22 March 2004 the CI was doing well, but expressed some mild depression.  The dose of Lexapro was increased to the May 2004 level.  From March until 2 August 2004, the record reveals the CI to be doing well on medication and PTSD support group therapy without PTSD symptoms.  A psychiatric addendum for the IPEB was performed on 14 August 2005.  At this time the CI reported seeing images of dying children and families, day-mares 3 to 4 times a week and nightmares three times a week.  The CI further reported a “rollercoaster mood” with anxiety about the MEB, his physical ailments and his daughter’s medical problems.  The CI reported that he “really enjoyed his job (Retention) and planned to stay on when he separated from the Army.”  The examiner noted “slight inconsistencies” in this report.  On MSE the CI was oriented and alert, pleasant and cooperative.  The CI’s voice was noted to become soft and “childlike” when asked about PTSD symptoms, but returned quickly to normal with change in questions.  Hallucinations, SI and HI were absent.  An Axis I diagnosis was PTSD and Global Assessment of Function (GAF) of 60 was assigned. (GAF: 60 - 51 Moderate symptoms OR moderate difficulty in social, occupational, or school functioning in social, occupational, or school functioning).  On 23 August 2005, the CI was seen in clinic and was doing well with only mildly depressed affect.  There was no thought disorder, SI, HI, psychosis or report of increasing PTSD symptoms.  On 26 August 2005, the CI telephoned his provider, reporting an increase in anxiety and “hypervigilance the last two weeks and requesting an increase in his medication dose.  He ‘adamantly denied SI/HI” and “admitted worsening family stress the likely cause.”  The dose of Lexapro was increased.  On multiple subsequent visits, September through November 2005, the CI had normal mood, thought content, speech; no SI/HI or hallucinations and no flashbacks and hypervigilance.  

The Board undertook an analysis of the above information.  The Board concurred that the CI had a MH condition with PTSD symptoms.  The Board unanimously agreed that the condition was well controlled with minimization of symptoms by medication with appropriate adjustments.  No MH condition was permanently profiled or implicated in the commander’s statement and was not judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that any MH under treatment significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board majority concluded that there was insufficient cause to recommend a change in the FPEB fitness determination for the PTSD.  The Board agreed that this applicant did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Projects as no MH diagnosis was changed during the DES process.

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 back pain condition, the Board unanimously recommends no change from the PEB determination.  In the matter of the contended MH condition, the Board, by a vote of 2:1, recommends no change from the PEB determination as not unfitting.  The single voter for dissent submitted the appended 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.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130521, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

MINORITY OPINION:

The CI was found unfit for chronic back pain with L5 to S1 Herniated Nucleus Pulposis, without neurologic abnormality, rated at 10%, and separated with severance pay for that one condition.  What is at issue in this case, which was adjudicated by our Board as part of the MH Diagnosis Review Project (as a dual eligible applicant), is whether or not the PEB unfairly eliminated a diagnosis of PTSD from the DES process to the possible disadvantage of the applicant.  I believe they did, and that is the basis of my minority opinion.

The applicant entered the DES in July 2005.  His DD Form 2808 (MEB History) corroborated ongoing MH treatment and the pending psychiatric evaluation, which was later detailed in the NARSUM addendum by the MEB psychiatrist.  That examiner diagnosed PTSD on Axis I, providing very directed language establishing the link with “traumatic events during combat;” and, concluded, “He will not be able to return to duty to perform combat function as this would most likely precipitate and/or exacerbate his symptoms. Due to-the severity and intensity of his symptoms, as well as his past traumas, the likelihood that he will need intensive psychiatric treatment to achieve remission is high and his prognosis for recovery and ability to function as a worldwide qualified active duty Army member is very guarded.”  The military impairment was opined to be “marked;” an S4 profile imposing significant psychiatric limitations was initiated, and the GAF assignment of 60 is the scale threshold for moderate impairment.

The applicant’s STR clearly shows he was seen consistently by Behavioral Health staff from April 2004 through the remaining 20 months until separation, and beyond, until July 2000.  The record is replete with 36 STR entries for MH evaluation and treatment prior to separation, including the involuntary psychiatric hospitalization in December 2004; and, 12 more MH entries in the 18 months following separation.  Each of these numerous (48) entries from service providers confirms an Axis I diagnosis of PTSD, most of them confirming the link with combat and deployment and most referring to the S4 profile. 

Despite this plethora of evidence, and glaring MEB psychiatric opinion, the MEB’s DA Form 3947 submission on 8 August 2005 failed to forward any MH condition and, the PEB’s subsequent DA Form 199 determination on 6 October 2005 followed suit.  The applicant submitted a timely non-concurrence, with a specific request that PTSD (among other conditions) be added for service rating.  The PEB President responded with the opinion that no change in the PEB’s original findings was warranted; the CI opted for a Formal PEB (FPEB) and, the CI’s rebuttal was included in the case file referred to the FPEB.

The CI testified at the FPEB on 26 October 2005 and submitted exhibits.  The FPEB also received contradictory testimony from one member of the CI’s unit that refuted the CI’s testimony, as well as references in both the MEB and the NARSUM which stated the CI’s condition(s) was related to an IED blast, by noting that the CI’s deployed duty location was in the “green zone” where they had no enemy engagements and the CI received no observable injuries.  Based on this one soldier’s account, the FPEB determined that all of the submitted evidence to the contrary was “strongly contradicted.”  The FPEB concluded that the “diagnosis of PTSD was presented at the time of the formal PEB.  This diagnosis was not included on Soldier's DA Form 3947 or DA Form 3349.  In the absence of corroborating information from the Soldier's unit and the Soldier continuing to work full-time, this diagnosis is not unfitting and not rated.”

The CI again non-concurred and provided a new rebuttal statement detailing his continuing MH treatment and providing examples of the interference of PTSD with his daily life, his family, and his ability to function in the military environment.  He refuted the testimony of the sole individual contradicting the evidence, noting that the soldier was not present when the IED incident happened, and that all members involved in the blast that day were injured but finished the mission before reporting their injuries.  The CI emphasized that his injuries were well documented by the unit medic (providing his name), as well as on the Aeromedical Evacuation report authored by a medical doctor (whose name he also gives).  The CI also noted that the DES processing by the PEBLO was interrupted by a catastrophic hurricane, inferring the PEBLO had insufficient opportunity to ensure the package included the records of the CI’s ongoing PTSD treatment, and the attitude of the board after that was “oh well.”  The CI felt he did not receive due process.

The FPEB President’s reply, and the United States Army Physical Disability Agency reply, concluded the applicant had submitted no new objective medical or performance evidence.  Both affirmed the FPEB’s findings which found the PTSD condition not unfit and not ratable.

At the VA psychiatric C&P evaluation on 25 July 2006, 7 months after separation, the Clinical Psychologist (Ph.D.) also provided an Axis I diagnosis of PTSD, elaborating fulfillment of all the diagnostic criteria; and, concluded that “it appears as likely as not that his experiences in Iraq, especially being involved in direct combat and himself being injured by an IED blast have resulted in his symptoms of post-traumatic stress disorder.”  She further stated that “due to the chronicity of his symptoms, his prognosis remains guarded,” and she assigned a GAF of 53 (moderate, approaching severe, impairment).  On the basis of that evaluation, the VA rated the applicant 50% for PTSD, effective the date of separation.  That rating was never lowered, and about 18 months later was raised to 70%.

The records in this case irrefutably establish service in a combat theater, with aeromedical evacuation from theater.  As elaborated above, there is copious evidence for a confirmed diagnosis of PTSD by multiple service (vs. civilian or VA) providers, and linkage of that diagnosis to combat stressors.  The NARSUM and psychiatric addendum to the NARSUM corroborate the diagnosis and PTSD Criterion A stressors; and, provide very directed opinions regarding prognosis and lack of compatibility with continued military service.  The omission of PTSD from the MEB DA Form 3947 and PEB DA Form 199 cannot be reasonably justified.  The failure of the IPEB or FPEB to provide remedy on very explicit and reasoned appeal is likewise poorly defensible.

I, the minority voter, strongly believe that this constituted an inappropriate and detrimental elimination of a diagnosis of PTSD, compellingly established by numerous MH providers, to the clear disadvantage of the member.  There is preponderant probative weight due the thoroughly documented PTSD treatment over an extended period, one of the most cohesive records for same which this minority voter has seen.  Nevertheless, the IPEB chose to ignore this evidence, and the FPEB chose to discredit it on the basis of the testimony of one soldier; the applicability of which was credibly challenged by the CI.  Every element in any way affecting the probative value to be assigned to such evidence must be thoroughly and conscientiously studied by each Board in the light of established DoD and VASRD policies, to the end that decisions will be equitable and just as contemplated by the requirements of the law.  That was not done in this case, and it is this Board’s responsibility to recommend that injustice be corrected.

Furthermore, an Under Secretary of Defense memo dated 17 July 2009 states “as a matter of policy, the PDBR and all three BCMRs will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after September 11, 2001, and in such cases, where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of six months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence.”  Additionally, an Air Force Review Boards Agency Senior Legal Advisor memo dated 2 April 2010 addressed to this board, further states “PTSD - Whether added as an unfitting condition or originally included as an unfit condition, a 50 percent rating will be the minimum assigned temporarily even if the medical evidence would not support an unfit determination.  The permanent rating at the six-month point will be determined as in other PTSD cases in accordance with DOD guidance.”

I believe the CI should have been placed on the TDRL for the mandatory 6-month period IAW VASRD and DoD policy, rated at the minimum required 50%.  Then, based on available evidence of record at about the 6-month reevaluation interval, the CI be rated at that time for his PTSD at 10%, 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, or; symptoms controlled by continuous medication.  The record shows that at this time the CI was actively participating in his PTSD group and interacted well with others while providing supportive feedback.  A VA C&P exam in July 2006 documented that the CI was working full time as a residency director at a hospital loved his job, describing it as “fun,” and denying any significant problems.  He had not lost any time from work, and his PTSD symptoms at that time were not having an impact on his employment functioning. It was also stated he had continued in treatment with noted benefit.

RECOMMENDATION:  I respectfully submit to the Secretary that that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation; that he be temporarily medically retired for 6 months with a combined service rating of 60% (50% for PTSD), and then permanently medically separated with severance pay with a combined disability rating of 20% (10% for PTSD).

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Chronic Back Pain (Lumbar Disc Disease)	5243	10%	10%	
PTSD	9411	50%	10%	
COMBINED	60%	20%	

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 XXXXXXXXXXXXXXX, AR20140019387 (PD201300650)

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