RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXX	CASE:  PD-2013-01158
BRANCH OF SERVICE:  Army	BOARD DATE: 20141210
SEPARATION DATE:  20041108

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88M/Motor Transport Operator) medically separated for chronic low back pain (LBP).  The 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 L3/S3 profile and referred for a Medical Evaluation Board (MEB).  The chronic LBP condition, characterized as “lower back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded alcohol dependence (chronic) and major depression superimposed on dysthymic disorder.  The Informal PEB adjudicated “chronic low back pain” as unfitting, rated 20%, with likely application of Department of Defense Instruction (DoDI) 1332.39 and VA Schedule for Rating Disabilities (VASRD).  The remaining conditions alcohol dependence (chronic) and major depression superimposed on dysthymic disorder was determined to exist prior to service (EPTS).  The CI made no appeals and was medically separated.

CI CONTENTION:  “VA rated at 60% (PEB) information incomplete/inaccurate.”  His complete submission is at Exhibit A.

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 IPEB – Dated 20040923	VA - (At Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	20%	Bulging Discs, L3-4, L4-5, L5-S1	5243	40%	20041122	
			L5 Radiculopathy; Right Lower Extremity	8799-8720	10%	20041122	
Major Depression	EPTS	Dysthymia (claimed depression)	9433	Deferred	20041122	
Other x 0 (Not in Scope)	Other x 2 (Not in Scope)		
Combined:  20%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20050129 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The requested major depression condition is eligible for Board review.  Although the Board does not have the authority to recommend a reversal of the EPTS determination, by precedent and prior legal and administrative opinion it may review the fairness of the PEB’s judgment that there was not permanent service aggravation.  Should the majority of members agree that there was permanent service aggravation, a disability rating IAW the VASRD, with or without a deduction IAW VASRD §4.22 (Rating of disabilities aggravated by active service), will be recommended.

Chronic Low Back Pain Condition.  Service treatment records documented a history of recurrent LBP since about 1999 or 2000 that became progressively more severe.  There was no clearly identified initial injury, although subsequent episodes of trauma were noted.  In 2003, an orthopedist diagnosed a right L4 radiculopathy in the context of new complaints of right leg pain and weakness.  Although those symptoms improved after a few days, ongoing LBP did not respond to conservative treatment and subsequent epidural steroid injections were only temporarily helpful.  Magnetic resonance imaging in January 2004 showed bulging discs at L3-4, L4-5, and L5-S1.  There was no spinal canal or neural foraminal stenosis.  An electrodiagnostic study in March 2004 suggested a right L5 radiculopathy.  While deployed to Iraq the following month, the back condition was exacerbated after falling from a truck, but he was deemed fit to stay in theater.

At the narrative summary (NARSUM) orthopedics examination on 6 July 2004 (4 months prior to separation) the CI reported pain (rated 6/10 in severity, moderate and frequent), in the right lower back region that radiated to his right anterior knee and occasionally to his foot.  He noted exacerbations every 5 months, worsening over time.  He reportedly had six episodes of urinary incontinence associated with back spasms and complained of weakness in the right lower extremity, especially with dorsiflexion at the ankle.  Pain improved with rest.  Examination of the lumbar spine revealed muscle spasms, but normal curvature.  Gait was not mentioned.  Lumbar tenderness was present and a test of nerve root irritation was positive on the right (straight leg raise test - SLR).  Lumbar flexion was 35 degrees (normal 90) and combined range-of-motion (ROM) was 150 degrees (normal 240 degrees).  Strength of the knee and of plantar and dorsiflexion of the ankle was normal.  Strength during heel and toe raising was also tested and confirmed to be normal.  Sensation was intact.

At the VA Compensation and Pension (C&P) exam on 22 November 2004 (2 weeks after separation), the CI reported a constant dull ache in the lower back that increased during flare-ups to 8-10/10 in severity and lasted up to a week.  Flare-ups occurred every 4-6 months and were precipitated by sleeping wrong, lifting, increased physical activity or bending over.  He required assistance getting out of bed, getting dressed and getting out of a bath tub during a flare-up.  Several months previously he had urinary incontinence, which occurred when there was a flare-up of pain.  He also reported a “nervous jittery feeling” in the lateral thigh to the toes that was present with flare-ups; and that his leg would feel weak and tire easily.  He reported tingling in the right leg, and numbness in the right foot and leg, usually in the morning.  The CI indicated that he had no functional loss due to his right leg symptoms except during flare-ups of LBP.  In general, he had difficulty standing in one position, having to shift his weight from leg to leg.  His activities were mostly sedentary, and he used a cane during flare-ups.  When not having a flare-up, he could walk 2 miles.  The CI reported that he was placed on quarters twice during the prior year for 48 hours each.  Examination revealed no abnormality of posture and no spasm.  Although gait revealed a “slight limp right leg,” heel, toe and tandem walking were reportedly normal.  Normal strength and sensation of the lower extremities was also reported and he displayed a normal deep knee bend.  Mild guarding was noted for all motions due to “being afraid he would cause a flare-up.”  Forward flexion of the lumbar spine was recorded as “increase in low back pain between 25 degrees and 50 degrees”; and after repetitive motion, “…had increase in low back pain between forward flexion of 35 to 45 degrees.”  Painful motion was present during flexion and lateral bending.  There was increased pain on repetitive motion and the back felt “weaker.”  Combined ROM before repetition was 180 degrees and after repetition was 185 degrees.  SLR was positive on the right.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under an analogous 5237 code (lumbosacral strain), while the VA rated the condition 40%, coded 5243 (intervertebral disc syndrome).  The Board agreed that the limitation of flexion in evidence supported a 20% rating, but no higher, for forward flexion greater than 30 degrees but not greater than 60 degrees.  The VA awarded an additional disability of 20% “for functional impairment.”  The application of VASRD §4.45 was debated, which allows for a higher rating if evidence of additional functional loss is present, and appeared to be the justification used by the VA for the next higher rating.  The Board noted the marginal reduction in flexion and increase in combined ROM after repetition as measured by the C&P examiner, and concluded that there was not sufficient evidence to warrant application of §4.45; and therefore the next higher rating was not justified on this basis.

The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the minimal rating criteria under that formula.  The Board finally deliberated if an additional disability was justified for peripheral nerve impairment.  The CI complained of pain radiating to the anterior right knee, tingling in the right leg, numbness in the right foot and leg and right lower extremity weakness (especially of ankle dorsiflexion).  A right L5 radiculopathy was confirmed by electrophysiologic testing, but the condition was not permanently profiled.  The NARSUM and VA exams noted normal strength and sensation in the right lower extremity.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  The CI experienced some radiating pain, but this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  While the CI complained of weakness of right ankle dorsiflexion, examination did not confirm any clinically relevant weakness of the right lower extremity.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  The Board therefore concluded that an additional disability was not justified on this basis.  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 chronic LBP condition.

Contended Mental Health Condition.  The CI was deployed to Iraq February 2003 - September 2003 and April 2004 - June 2004.  There were no MH treatment records in evidence.  A screening questionnaire on 12 April 2000 indicated the CI frequently experienced a depressed mood or a loss of pleasure in usual activities.  At a visit to the primary care clinic in February 2003 the CI reported he had “depression symptoms” but did not specify what they were.  He also answered all four questions of an alcohol screening questionnaire in a positive fashion, and indicated he needed to drink to go to sleep and had a history of blackouts.  Counseling referral and medication to prevent drinking were discussed.

On the  Report of Medical Assessment dated 15 June 2004 (5 months prior to separation), the CI only indicated that the LBP condition imposed a limitation on his duty.  On a Post-Deployment Health Assessment dated 15 June 2004, the CI reported that he felt in great danger of being killed while deployed, but denied experiencing events that were so frightening or horrible he had nightmares about them, tried not to think about them or caused him to be constantly on guard, watchful or easily startled.  On the DD Form 2807-1, dated 7 July 2004 (4 months prior to separation), the CI reported anxiety, depression or excessive worry, trouble sleeping, attempted suicide and counseling.  The profiling section of the DD Form 2808 did not list a psychiatric diagnosis and assigned an S1 profile.  The commander’s statement on 7 July 2004 implicated only the low back condition as an impediment to performance of duty.
The MEB psychiatric addendum on 2 August 2004 (3 months prior to separation) confirmed the CI’s deployments to Iraq but noted the CI could not recall exact dates.  He reported a history of depression since childhood when he was emotionally, physically, and sexually abused and at times hungry and homeless.  His current episode of depression began 4 months previously.  Since returning from Iraq, he endorsed restless sleep, nightmares about being back on the streets in Chicago and about being in battle, crying spells, recent suicidal thoughts, lack of motivation and marital problems.  Although no specific combat experiences were described by the CI, the examiner observed that truck drivers in Iraq “are constantly shot at and (witness) much trauma but (the CI) minimizes everything.”  The CI reported that he started drinking while stationed in Korea (1999-2000) when he learned that his wife (also active duty, stationed in Germany) was living with another man with whom she had a baby.  After transferring to Germany, the CI learned he was legally responsible for the child even though he was not the father; and since his wife did not want the child, he gave it up for adoption.  By this time he had started drinking heavily.  The CI reported that alcohol use did not affect him “in the least”; but he did not volunteer that he was referred to the substance abuse treatment program, which documented a history of alcohol abuse since age 12 resulting in hospitalization for detoxification, withdrawal symptoms and a history of blackouts.  Furthermore, he reported to the NARSUM examiner that he currently drank 2-3 beers daily after work, but not on weekends.  However, on the psychiatric intake form, he indicated that he consumed 10 beers daily.  The mental status examination (MSE) was significant for shallow affect, detached mood although he said he was depressed, vague and circumstantial speech, defensive attitude and mood swings.  Questions had to be repeated several times before he could answer, memory was selective, and he felt like dying in the past month though he denied current suicidal ideation.  Diagnoses of alcohol dependence and major depression (MDD) superimposed on dysthymic disorder were rendered, and a Global Assessment of Functioning (GAF) of 60-65 (moderate-mild symptoms or impairment) was assigned.  The CI declined medication for depression because “he doesn’t like drugs.”  The examiner noted that alcohol is a depressant, and that the CI’s depression symptoms are often found in alcoholics.  The alcohol dependence was considered “enough to cause severe impairment in his social and occupational functioning.”  It was anticipated that ongoing therapy and possible hospitalization for detoxification would be required.  The examiner also opined that the MDD was “in itself…enough to cause severe impairment in his social and occupational functioning.”  Alcohol was considered an attempt at self-medication for MDD.

At the general medical C&P evaluation 2 weeks after separation, the CI reported he had not consumed alcohol for 3 months, but that he was previously drinking a six pack, a fifth of whiskey or a case of beer daily.  At the C&P examination, dated 13 December 2004 (a month after separation), the CI reported an inpatient psychiatric hospitalization at age 16 for mental evaluation in the context of custody determinations and outpatient MH treatment by counselors and chaplains for much of his life.  He noted outpatient MH treatment “off and on for years,” including during elementary and high school.  He first realized he could have a drinking problem while in Korea in 1999 or 2000.  While in Germany he was drinking one case of beer and a fifth of whiskey daily.  Two days prior to the current exam he drank a 12 pack of beer and a bottle of Crown Royal.  He also reported being “seen by chaplains or counselors off and on throughout his military career” beginning in Korea in 1999 and in Germany from 2000 to 2002 for alcohol and depression.  He reportedly attempted an overdose of pills while stationed in Germany which represented his only actual suicide attempt.  He was also seen by an MH provider during his second deployment to Iraq.  The examiner noted at that time (May 2004) the CI was counseled for “losing control” after an argument on the telephone with his wife.  He was reportedly referred to behavioral health for this incident.  The CI reported his mental symptoms as severe and stated they stemmed from childhood and continued through his military career.  He rated his current depression as 5/10 in severity.  His most recent episode of depression began after his military enlistment, or “at least the past five or six years.”  He endorsed sleep problems and nightmares of “the end of the world and disasters” twice per week.  He was not currently working, but he did not miss time from work in the military, was never late and “was always a good worker.”  He was divorcing after one year of a second marriage, had some friends, but was socially isolated.  He had not accepted antidepressant medication because he did not want to feel “like a zombie,” but therapy was helpful.  MSE was notable for depressed affect and difficulty with concentration.  Passive suicidal ideation was endorsed.  Diagnoses of dysthymia, MDD and alcohol dependence were rendered with a GAF of 60 (moderate impairment).  The examiner concluded that military service did not cause his depression, but did exacerbate it.  After a request for clarification, the examiner opined that the primary Axis I diagnosis was major depression superimposed on dysthymia, and EPTS but was exacerbated by service; and that alcohol dependence was a secondary Axis I diagnosis which also EPTS, and worsened the depression but did not cause it.  At an outpatient VA visit on 26 May 2005 (6 months after separation), the CI denied trouble sleeping or depression.

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the Disability Evaluation System (DES).  Diagnoses of alcohol dependence and MDD superimposed on dysthymic disorder were listed by the NARSUM, the MEB and the PEB.  The Board determined that MH diagnoses were not changed to the applicant’s possible disadvantage in the disability evaluation.  The CI therefore did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The PEB applied the 9432 code (Bipolar disorder) for the depression superimposed on dysthymic disorder condition, and deemed it not eligible for disability rating and compensation because the condition was considered EPTS.  Alcohol abuse was found not compensable, although it could be deemed administratively unfitting.  Although deferred on the initial rating decision, the VA later rated major depression with dysthymia and alcohol abuse at 30% under the 9434 code (major depression), effective to the time of separation.  In the rating decision the VA stated “There is no objective evidence showing that your depression and dysthymia preexisted your entry on active duty or was productive of any disabling symptoms at the time of … enlistment.”

The Board’s main charge with respect to its recommendation is an assessment of the fairness of the PEB’s determination that there was no permanent service aggravation of this EPTS condition.  The Board discussed at length whether the MH condition was permanently service aggravated and subject to rating.  Although the CI revealed pre-military depression during the psychiatric NARSUM and the C&P examinations, the History and Physical entry examination, dated October 1998, did not show evidence of depression.  The history of heavy alcohol consumption and reported suicide attempt in Germany occurred in the context of military-imposed overseas duty and forced marital separation.  The CI had two deployments to Iraq in a high stress MOS, and he reported nightmares about being in battle.  Board members agreed the evidence supports the conclusion that the MDD superimposed on dysthymic disorder condition was permanently aggravated by service.

The Board directs attention to its rating recommendation based on the above evidence.  Application of VASRD §4.129 is considered by the Board for all cases of service-connected psychiatric conditions resulting in separation; but, all members agreed that the “highly stressful event” requisite for §4.129 was not satisfied in this case.

The Board next considered a §4.130 disability rating.  A rating of 10% requires “occupational and social impairment due to mild or transient symptoms during periods of significant stress; or symptoms controlled by continuous medication.”  A rating of 30% is described by “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks,” while a 50% rating requires “reduced reliability and productivity.”  During the DES processing, GAF scores leading up to the time of separation were in the mild-moderate range.  Although there were three 30% threshold symptoms the Board noted that the commander’s statement did not implicate a MH condition as a cause of duty impairment, and the CI likewise did not identify his MH condition as a cause of limited ability to perform his duty.  Furthermore, the CI noted that his condition never resulted in him being late to work or missing work, and he did not require any emergency room visits or hospitalizations.  The Board majority concluded that the evidence just elaborated was most accurately described by the 10% rating.  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 MDD condition, coded 9434.

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.  In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the major depression superimposed on dysthymic disorder condition, the Board by a vote of 2:1 recommends a disability rating of 10% coded 9434 IAW VASRD §4.130.  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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5299-5237	20%	
Major Depression Superimposed on Dysthymic Disorder	9434	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130820, 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 XXXXXXXXXXXX, AR20150004174 (PD201301158)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

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

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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