RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXX	CASE:  PD-2013-01653
BRANCH OF SERVICE:  Army	BOARD DATE:  20140805
SEPARATION DATE:  20041026

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty 2LT/O-1 (25A/Signal Officer--Trainee) medically separated for a mental health (MH) condition.  He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  The MH condition, characterized as “major depressive disorder,” (MDD) was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 as not meeting retention standards.  The MEB also identified and forwarded spondylolisthesis of L5-S1 for PEB adjudication.  The Informal PEB (IPEB) adjudicated MDD as unfitting rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining spondylolisthesis of L5-S1 condition was determined to be not unfitting.  The CI appealed to the Formal PEB (FPEB), which affirmed the PEB’s findings and ratings, and the CI was medically separated.

CI CONTENTION:  “Residuals of spinal fusion L5-S1 with an evaluation of 10 percent is underrated for the actual stress and pain.”

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 mental health and back conditions are addressed below; and, no additional conditions are 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.  The Board acknowledges the CI’s contention that suggests a rating should have been conferred for the spine condition documented at the time of separation.  The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Military Disability Evaluation System (DES) operates.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  However the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

RATING COMPARISON:

Service FPEB – Dated 20040210	VA* - (12 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Major Depressive Disorder	9434	50%	20031111	
Spondylolisthesis of L5-S1	Not Unfitting	Residuals of Spinal Fusion L5-S1	5237	10%	20031111	
Other x 0 (Not in Scope)	Other x 0	
Combined:  10%	Combined:  60%	
*Derived from VA Rating Decision (VARD) dated 20050629 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Major Depressive Disorder.  Review of the service treatment record reveals no history of an MH disorder prior to November 2001, when the CI experienced the onset of depressed mood subsequent to the incidence of low back pain (LBP) during his initial Basic Officer (Infantry) Leadership Course, which he had started in October 2001.  He later noted the onset of sleep disturbance after low back surgery in October 2002.  In February 2003, he was transferred, as his MOS had changed from infantry to signal corps, and he noted the onset of sadness and frustration.  He reported that he and his fiancé ended their engagement in April 2003 and noted the onset of suicidal thoughts at that time.  In June 2003, he was hospitalized after twice attempting suicide with pills, cocaine and alcohol.  At the time of his admission, he noted 4 months of depressive symptoms.  Having admitted initially to a single use of cocaine, he was discharged from the hospital, but was readmitted in July 2003 with depression, suicidal thoughts (with a plan) and revealing a pattern of persistent cocaine use since February 2003.  In August 2003, he entered an in-patient substance abuse program but with “persistent depressive symptoms.”  In September 2003, he was voluntarily re-admitted to the psychiatric in-patient unit.  Mental status examination (MSE) at that time revealed normal speech, normal memory and concentration, poor judgment, fair insight, absence of psychomotor agitation or retardation, absence of suicidal or homicidal ideation, but with “mildly depressed” affect and a mood self-described as “disappointed.”  Three days after admission, he was discovered to be making superficial cuts on his arms with a razor blade, later stating he was “unsure why he did it,” but noting “feelings of hopelessness,” wishing he was dead, and expressing no remorse.  At this occasion, MSE reported mildly depressed affect, but poor insight and judgment.  The service treatment record (STR) documents that within several days, the CI appeared to be “future-oriented,” wanting “to move forward with his life” and denying suicidal ideation.  With the combination of therapy and medication (Celexa and Serzone), the CI reported improved symptoms, including denial of suicidal ideation and the psychiatrist noted that his MDD was in “partial remission.”  The commander’s memorandum to the MEB (submitted after his hospitalization) reported that the CI’s work performance had always been “satisfactory” and had “always conducted tasks to standard.”  His permanent S3 profile (12 months prior to separation), which followed his hospitalization, noted that he was restricted from carrying or firing a rifle, recommended that he must be assigned near a military treatment facility with psychiatric care, but otherwise noted only physical duty restrictions, which were solely due to his co-occurring back pain.

The MEB narrative summary (NARSUM) dated 2 October 2003, noted resolution of the CI’s suicidal thoughts.  The CI noted “improving mood,” that “suicidal thoughts have resolved” and that he has “benefitted significantly” from the current therapy.  There was no documentation of panic attacks, memory loss, or difficulty either establishing or maintaining relationships.  On MSE, his affect was slightly depressed but with a “better” mood.  Cognition was intact with “no signs of psychosis.”  Insight and judgment were noted as “improved.”  The NARSUM concluded that the CI displayed “borderline social adjustment” and was “likely to experience significant job instability.”  The prognosis was “fair” due to his “relatively good functional level prior to the onset of his depression.”  The NARSUM listed two Axis I MH diagnoses; namely, (1) MDD, single episode, moderate and (2) Cocaine dependence.  The CI underwent a MEB in November 2003 (11 months prior to separation), which documented the diagnosis of MDD, single episode, with marked impairment for further military duty and definite impairment for social and industrial adaptability.

At the VA QTC examination (12 months prior to separation), the CI noted that his depression had started subsequent to his back injury, when he was unable to continue in his desired career as an Infantry Officer.  The QTC examiner recorded that suicidal thoughts began after his back surgery in October 2002 and were exacerbated after he split up with his fiancé, culminating in two suicide attempts in June 2003, with an overdose of anti-histamine, cocaine and alcohol.  At the time of the QTC examination, the CI reported that his depression symptoms had “improved 50-60%.”  At this examination, he reported feeling hopeless, helpless, with some anxiety over the future and denied auditory hallucinations and reported that “people in his unit are watching him.”  His therapy involved continuous medication (Celexa and Serzone) and weekly consultation with a psychotherapist.  On MSE, speech and memory were intact, with anxious mood and affect, but no psychomotor agitation or retardation.  There was no evidence of delusional thought, hallucinations, current suicidal or homicidal ideation, panic attacks or obsessive or ritualistic behavior.  His diagnoses by the VA were (1) major depressive disorder (MDD), recurrent, moderate to severe, with possible psychotic feature, in partial remission, (2) alcohol abuse in early remission and (3) cocaine abuse in early remission, with an Axis V (Global Assessment of Functioning) of 55-60, “with moderate difficulty in social and occupational functioning.”

The IPEB (11 months prior to separation) concluded that the MDD condition, with persistent depressed mood, hopelessness and recurrent suicidal thoughts with a recent suicidal attempt and history of substance abuse, was unfitting.  After the CI’s non-concurrence with the IPEB, a Formal PEB (FPEB) was convened (8 months prior to separation) which included the CI’s presence and his own sworn testimony (which was not available to this Board for review) in addition to the NARSUM.  Noting the CI’s “impairment for social and industrial adaptability…as mild,” the FPEB found his MH condition unfitting.  The CI submitted a rebuttal of non-concurrence with the FPEB, in which he stated that he “was fortunate to be doing well,” and attributed his improvement to his medication and his psychotherapy.  The PEB concluded that “no change to the original findings is warranted.”

The Board directs attention to its rating recommendation based on the above evidence.  The FPEB (8 months prior to separation) noted the CI’s improvement, as noted in the NARSUM as well as in his rebuttal, and rated the MDD at 10% under VASRD code 9434.  The VARD (dated 8 months after separation) rated the condition at 50%, also under VASRD code 9434.  There was no evidence available documenting the CI’s condition after the VA QTC examination (11 months prior to separation) until 6 years after separation.  In regard to the probative value judgments which must be considered in the rating recommendations for the unfitting MH condition, the Board took into consideration two issues.  First, the Board discussed if the ratable severity, especially in the short-term, was mitigated somewhat by the acute and temporary contribution to impairment from the two substance abuse conditions which were not ratable and were, by the time of the MEB, found to be “in early remission.”  Additionally, the Board weighed the probative value of both the PEB and VA evaluations, both of which took place soon after the CI’s hospital discharge and approximately a year prior to his date of separation and which must remain as the Board’s definitive benchmark in its recommendations.  In the absence of other evidence, these two sources must bear the heaviest probative value.

The deliberation settled therefore on arguments for a 10%, versus a 30% or a 50% permanent rating recommendation.  The general description in §4.130 for a 30% rating is “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily);” and that for 50% is “occupational and social impairment with reduced reliability and productivity.”  The VA QTC examination did not cite evidence which would confirm that either reliability or productivity on the job was suffering because of psychiatric symptoms.  The Board determined that, except during the CI’s hospitalization and the in-patient substance abuse program, there was no performance based evidence from the record that any MH condition significantly restricted or interfered with satisfactory duty performance.  Some level of work inefficiency might be expected to result from the reported symptoms; although, there was no documented evidence of this.  The evidence clearly indicates that except for the acute period during the CI’s hospitalization, there were no intermittent periods of inability relative to occupational capacity.  The general description for a 10% rating under §4.130 is a fit with the CI’s documented level of social and occupational functioning, which showed no objective impairment.  It is clear that the CI’s symptoms had significantly improved, documented both by his own testimony and also by the use of the DSM IV specifier “in partial remission” by the military psychiatrist and by the VA QTC.  The Board members agreed that the CI’s symptoms at the time of separation required control “by continuous medication,” but also agreed that there was no documentation of significant or specific occupational and social impairment, a pre-requisite for a rating higher than 10%.  Additionally, a 2010 VA C&P mental examination, although remote from separation, noted that the CI had one single MH visit in 2005, had no psychiatric hospitalizations in the year prior to separation, which is important to note since he had two prior to separation, and had no admissions after separation.  He had stopped drinking and using cocaine in 2004.  That examination also recorded that the CI had worked after separation until 2 months prior to the 2010 examination.  He stated he stopped working because “back pain and being on feet with restaurant work caused problems functioning…also felt stressed by customers at work.”  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 MDD condition.

Contended lumbar fusion condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that lumbosacral (L5-S1) spondylolisthesis 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 STR documents that in December 2001 the CI, noting a history of “intermittent back pain X 1 year,” reported acute LBP (8/10) without “history of injury to back,” subsequent to an “extracurricular” road march which was followed by soreness in the low back.  Although the CI noted no trauma at this time, a clinic note later documents that the pain started after a ground-level fall when he was carrying a radio.  A clinic visit in January 2002 noted continuation of the back pain and documents the results of radiographic imaging, which revealed a “Grade 4 spondylolisthesis of L4 and L5” (forward movement of one lumbar vertebra upon another).  Temporarily profiled L3, partial resolution of the CI’s symptoms resulted in postponement of a scheduled lumbar fusion.  After the symptoms returned the CI underwent “elective lumbar surgery” in October 2002 (an L5 laminectomy with intermittent L4-S1 posterior spinal fusion).  By the time of his transfer to Signal Branch in February 2003, he had started running again.  At this time he was noticing increased pain, and his duty restrictions were changed to no APFT, no running, jumping or marching and lifting limited to 10 lbs.  A subsequent L2 profile in July 2003 stated that the CI could participate in the fitness test (APFT), could run “at own pace” 2 miles, and carry and fire a rifle. 

Seen in follow-up in August 2003, he reported that “his low back pain is much better than it was preoperatively.”  A clinic note during this time describes “mild back pain (3/10).”  By the time of the NARSUM (12 months prior to separation), his back pain was “significantly improved,” but his surgeon, recommending “reasonable activity limitations” and “reasonable precautions,” concluded that his back condition did not meet retention standards.  At this time, his permanent (L2) profile restricted lifting to 40 lbs., but allowed APFT, running, push-ups, sit-ups and marching up to 12 miles with a 40 lb. ruck.

The commander’s memorandum to the PEB stated that the “spondylolisthesis has resulted in a branch transfer from infantry to signal” branch, but did not specify that the CI was unfit for continued service due to the back condition, adding that, while on profile for his back, the CI’s “performance was satisfactory and he always conducted tasks to standard.”  At the MEB physical examination, the examiner noted a well-healed mid-lumbar surgical scar, noted a “good full active range of motion,” and documented a diagnosis of “back pain secondary to spine surgery.”  The MEB forwarded the diagnosis of lumbosacral spondylolisthesis as medically unacceptable; the IPEB (12 months prior to separation) found the low back condition not unfitting.  At the CI’s request, an FPEB was convened and 8 months prior to separation, found the back condition not unfitting.  In his subsequent rebuttal to the FPEB, the CI did not contest the FPEB’s adjudication that the back condition was not unfitting.

The spondylolisthesis was profiled L2 and limited the CI to a 12-mile march and lifting 40 lbs.  The condition was not recommended for separation in the commander’s statement.  There was no performance based evidence from the record that the back condition significantly interfered with satisfactory duty performance in Signal Branch.  After due deliberation, and 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 low back 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 MDD condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended low back condition, the Board unanimously recommends no change from the PEB 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131002, 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, AR20150004686 (PD201301653)

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