RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01130
BRANCH OF SERVICE:  Army	BOARD DATE:  20140910
SEPARATION DATE:  20070220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (63B/Light Wheel Vehicle Mechanic) medically separated for post-traumatic stress disorder (PTSD) and a back condition.  The PTSD and 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 L3/S3 profile and referred for a Medical Evaluation Board (MEB).  The PTSD and Intervertebral disk degeneration at L5-S1 conditions were forwarded by the MEB to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “PTSD” as unfitting, rated at 10% without application of §4.129 and “chronic low back pain” as unfitting, rated at 10%, citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  The US Army Physical Disability Agency completed an administrative correction which did not impact the original IPEB’s disposition or rating.

CI CONTENTION:  “I still have back pain all the time.  I’ve been on all different types of medications for my PTSD.  Still having to take meds as of this day.  I have to use my own insurance.  VA is a pain to deal with.”

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 Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  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.

In addition, the CI was notified that his case qualifies for review of his mental health (MH) condition in accordance with the Secretary of Defense directive for a comprehensive review of members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were unfavorably changed or eliminated during that process.  In response to said notification, it is presumed that the CI has elected review by this Board for the MH condition.  Accordingly, the case file was reviewed regarding unfavorable diagnosis change, fitness determination, applicability of VASRD §4.129, and rating (via §4.129 or §4.130 as appropriate) of the MH condition adjudicated as not unfitting.

RATING COMPARISON:

Service PDA Admin Corr – Dated 20070131	VA - (1 and 9.5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10%	Post Traumatic Stress Disorder	9411	50%	20071206	
Chronic Low Back Pain	5237	10%	DDD of the L5S1 Lumbar Spine	5243	20%	20070320	
Other x 0 (Not in Scope)	Other x 0		
Combined:  20%	Combined:  60%	
*Derived from VA Rating Decision (VARD) dated 20070404 (most proximate to date of separation)

ANALYSIS SUMMARY:

PTSD Condition.  The post-deployment health assessment screening dated 19 December 2005, endorsed that the CI witnessed person or persons gravely wounded or dying; or seeing human remains during his Iraq deployment.  He stated that he felt at times to be in grave “danger of being killed,” yet denied symptoms suggestive of PTSD 30 days prior to re-deployment.  The CI did admit to experiencing depressed moods and loss of interest in activities that were previously pleasurable, however, he was not interested in receiving help for stress or emotional problems.  

The psychiatric narrative summary (NARSUM) dated 13 January 2006 (13 months prior to separation), noted the CI had two deployments; the initial deployment was from March to September 2003 and the second deployment was from January 2005 through January 2006.  During the CI’s first deployment, he reported seeing several burning bodies and persons beginning killed by gunfire.  There were no reports of receiving direct gunfire but does states being in the proximity of mortar attacks.  He stated that during this deployment he experienced fearing for his life on a daily basis; however this feeling decreased towards the end of the deployment.  The CI reported that his second deployment to Iraq was more traumatic, due to being shot at while on guard duty, his truck was hit by an improvised explosive device and he recalled body parts rain down on him after a vehicle explosion.  The CI noted he began to have symptoms of anxiety, irritability, vigilance and depressive symptoms post-deployment.  The CI was prescribed Zoloft and attended anger management group therapy talk sessions.  The medication improved his irritability and anxiety, however, after returning from his second deployment, he continued to have symptoms such as irritability, hypervigilance, some depressive moods and an exaggerated startle response.

Mental status examination (MSE) recorded mild psychomotor agitation; the CI described his mood as angry.  The examiner observed that the CI’s affect was anxious, that he was irritable; and tearful while discussing the details of his deployments and the impact it had on his family life.  There was no evidence of disturbance with the CI’s thought processes and judgment was recorded as good.  The examiner determined that the CI’s symptoms met the criteria for the diagnosis of PTSD and a Global Assessment of Functioning (GAF) score of 66 (mild) was recorded.

The review of the CI’s service treatment records revealed documentation of a behavioral health (BH) evaluation dated 10 March 2006, diagnosing the CI with anxiety disorder, not otherwise specified.  During this evaluation, the CI described having a good marriage and denied problems with sleep, appetite, energy or his concentration.  The CI also denied having a depressed mood, reliving or re-experiencing traumatic events, panic attacks and hypervigilance.  He stated that he did continue to experience irritability and anger but reported no incidents of violent outbursts or frequent aggressive encounters; chronic PTSD was diagnosed at the CI’s BH appointment 6 months later.  The CI continued to participate in talk therapy session and take his BH medication.  His primary complaint was of irritability, which was substantiated by his service treatment record documentation, however there was no documentation evident of impaired thinking, impaired judgment, or suicidal or homicidal ideations.

The VA Compensation and Pension (C&P) mental examination, approximately 10 months after separation, noted the CI was working 60 hours per week as a service advisor for an automobile dealership.  The VA C&P general medical examination obtained in March 2007 (a month post-separation), documents that the CI’s PTSD condition was stable with medications.  During the examination the CI stated that he noted some improvement in certain PTSD symptoms (further details were omitted), but continued to have challenges with anger management, aggressive thoughts and experienced some homicidal ideation.  He stated he had “no real friends” primarily socializes with co-workers and family members, also stated that he continued to have marital problems.  He reported disturbance of short-term memory, lack of concentration, problems with sleeping secondary to nightmares of his experiences in Iraq that occurred 2 to 3 times a week (unable to recall details of dreams).  He reported that he had stressors such as significant debt issues and was evicted from his home.  Otherwise the MSE was completely unremarkable but the examiner did conclude that the CI’s short-term memory problems were likely associated with his lack of concentration due to the PTSD condition.  The diagnosis of PTSD, chronic, moderate was assessed with a GAF of 60 (borderline moderate-mild).

The Board directs its attention to the evidence presented.  The Board first reviewed the service treatment records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the DES process.  The evidence of the available records showed the diagnosis of PTSD was the only diagnosis rendered.  The Board determined that no MH diagnosis was changed in the disability evaluation process, thus, the applicant did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The Board next considered the rating recommendation.  The PEB rated the condition of PTSD, coded under 9411, at 10%.  The VA rated the condition of PTSD coded as 9411, at 50%.  The PEB noted that 10 A/C applied in this case (combat-related determination); however, failed to apply the provisions of VASRD §4.129.  The Board, in compliance with the provisions of VASRD §4.129 (mental disorders due to traumatic stress) determined that the provision was applicable.  All Board’s members agreed that the §4.130 criteria for a rating higher than 50% were not met at the time of separation and therefore the minimum Temporary Disability Retired List (TDRL) rating is applicable and, consequently recommend a minimum 50% PTSD rating for a retroactive 6-month period on the TDRL.

The Board must then determine the most appropriate fit with VASRD §4.130 criteria at the end of the TDRL tenure for its permanent rating recommendation.  The VA C&P examination, performed 10 months after separation, documents the CI was employed full-time, had some financial struggles, limited social relationships, had marital problems and anger issues.  However, his MSE was essentially normal, there was no indication in evidence of a psychiatric hospitalization; although the CI did reported he had homicidal thoughts, he was never violent or aggressive and there was no adverse legal history.

The general VA C&P’s examination obtained a month after separation noted the CI was stable on medication.  There were no recorded panic attacks and some improvement in symptoms was noted.  The VA examiner opined the CI’s irritability interfered with occupational and social functioning and led to reduced reliability and productivity.  After careful deliberation, the Board concluded, there was insufficient evidence to support that there was reduced reliability and productivity since the CI was working full-time.  There was absence of evidence that would predict workplace issues since job related issues were omitted.  Therefore, the 50% disability rating criteria was not met.  The Board then deliberated the 30% disability rating which requires “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal).”  Although the CI reported issues with short-term memory at his VA C&P examination, the cognitive assessment, was omitted, the memory issue was recorded as secondary to concentration problem and examiner further concluded that the CI’s remaining PTSD symptoms had not interfered with his overall functioning.  The Board also considered the absence of hospitalizations and emergency room visits.  The commander’s statement, obtained 2 months prior to separation, stated that the CI was an outstanding soldier and that his MH condition did not interfere with his ability to satisfactory perform his duties.  Therefore, the Board concluded there was insufficient evidence to support the 30% disability rating.  The Board members agreed that the 10% rating 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 symptoms), best reflected the CI’s disability level at the time of permanent separation.  After due deliberation, with consideration of all the evidence and in keeping with the application of VASRD §4.3 (reasonable doubt), the Board recommends a 10% permanent disability rating.

Chronic Low Back Pain.  The MEB NARSUM dated 20 December 2006 documents that the CI initial complaints of back pain occur after lifting weights and that the pain intensity waxed and waned.  The CI indicated that his pain increase with activities such as yard work, bending, running and performing his duties as a mechanic.  He also stated that he was unable to carry a combat load or construct a fighting position secondary to the back pain.  His profile restricted his activities (run, bike, walk and swim) to his own pace and distance; also participation in lower body weight training.  

The CI’s LBP was treated conservatively with medications and physical therapy without adequate pain relief; the CI was not considered a surgical candidate.  During physical examination, the MEB examiner observed tenderness to palpation of the paravertebral muscles of the low back and pain on flexion.  Straight leg raise was negative; there was no evidence of neurovascular compromise or neuropathy.  The MEB range-of-motion (ROM) dated 14 December 2006 recorded a lumbar flexion of 95 degrees and extension of 16 degrees.  The examiner referenced a 2003 magnetic resonance imaging (MRI) report of the lumbar spine that showed degenerative disk disease at L5-S1, with small central disk protrusion.  An MRI of the lumbar spine, dated 4 January 2007 (approximately a month prior to separation), demonstrated posterior central annular tear with disc protrusion at L5-S1 without evidence of nerve root impingement.  Service treatment records related to the back condition were not available for the Board’s review.  

At the VA C&P examination dated 20 March 2007 (a month post-separation), the CI reported he had positive results for LBP with both physical therapy sessions and chiropractic session although the results were of a short duration.  The VA examiner noted that the CI was able to ambulate without assistive devices; however, gait was noted to be “slightly” antalgic secondary to back problem.  His ROM was a flexion of 75 degrees with pain and extension of 25 degrees with pain.  The examiner also noted mild spasm with palpation of paraspinal muscles but no evidence of neurological compromise.  An MRI obtained in December 2006 demonstrated degenerative disk disease at L5-S1 without nerve root involvement.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition 10% for tenderness coded 5237.  The VA rated at 20%, coded 5243 (degenerative arthritis) citing spasm severe enough to result in an abnormal gait.  A higher code of 20% requires spasms producing abnormal gait, or abnormal curvature of the spine or forward flexion not greater than 60 degrees.  The VA examiner recorded a “slightly antalgic gait, to the left”; however, noted the CI could walk adequately without any difficulties and opined his physical limitation was minimal.  He used no assistive device and spasm was recorded as mild.  Documentation of spasm was omitted at the MEB examination.  After deliberating, the Board agreed there was pain on motion and tenderness supporting the 10% rating; however, there is insufficient evidence to support the higher rating of 20% under the 5237 code.  There was no evidence of incapacitating episodes for a higher rating under code 5243.  After due deliberation and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 10% disability rating at the CI’s initial TDRL placement and at permanent separation for the back pain 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 PTSD condition, the Board unanimously recommends a TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed and a 10% permanent rating IAW VASRD §4.130.  In the matter of the chronic low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends a 10% TDRL rating and at permanent separation.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
PTSD Condition	9411	50%	10%	
Low Back Pain	5237	10%	10%	
COMBINED	60%	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130814, 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 XXXXXXXXXXXXXXXXX, AR20150003249 (PD201301130)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
60% disability for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period no recharacterization of the individual’s separation or modification of the permanent disability rating of 20%.

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum as follows:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was separated with a permanent combined rating of 20% effective the day following the six month TDRL period with no recharacterization of the individual’s separation.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will provide 60% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     

CF: 
(  ) DoD PDBR
(  ) DVA