RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	     CASE:  PD-2014-01259
BRANCH OF SERVICE:  Army                                                                 SEPARATION DATE:  20080706

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Motor Transport Operator, medically separated for “depressive disorder…” with a disability rating of 10%.  

CI CONTENTION:  The CI contends for his unfitting depressive disorder and his not unfitting post-traumatic stress disorder, back and right shoulder conditions.  The CI’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.   

RATING COMPARISON:  

SERVICE PEB - 20080321	VARD - 20081117	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Depressive Disorder…	9434	10%	Posttraumatic Stress Disorder with Depression	9411-9434	10%	20080821	
Post-Traumatic Stress Disorder	Not Unfitting					
Bilateral Shoulder Pain	Not Unfitting	Degenerative Changes in the Acromioclavicular Joint,
Bilateral Shoulders	5003	10%	STR	
Low Back Pain	Not Unfitting	Degenerative Disc Disease of L5-S1	5242	10%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDTIONS:  60%	

ANALYSIS SUMMARY:  

Depressive Disorder.  According to service treatment records (STRs) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s mental health condition became evident a few months before August 2006 at which time he was referred for assessment by the Chaplain for depression/anxiety while deployed.  The diagnoses at that time were ADD (attention-deficit disorder), major depressive disorder, r/o bipolar spectrum disorders (cyclothymic), and r/o PTSD (posttraumatic stress disorder). Treatment consisted of Wellbutrin SR (bupropion, an antidepressant) and Seroquel (quetiapine-an atypical antipsychotic drug used in combination with antidepressants) at night along with supportive psychotherapy.  At a follow-up the CI reported continued sadness, mood swings, anxiety and irritability.  He also exhibited signs of borderline personality disorder.  As a result he was medically evacuated home due to suicidal ideation and high anxiety.  He underwent anger management and continued the medication to which Celexa (citalopram, an antidepressant) was added to the treatment protocol to augment the Wellbutrin.  Marital problems were also manifest with anxiety and depression as the working diagnoses throughout 2006 until 18 December 2006 when chronic PTSD (see below) was added as a diagnosis based on a review of the CI’s symptoms, which he had heretofore been resistant to discuss.  In January 2007 he reported continued intermittent suicidal ideation, weight gain, low energy and no motivation.  Risperidone (an antipsychotic medication) was added to the treatment protocol for agitation and sleep disturbance in February 2007.  In April 2007 the CI’s depression was exacerbated by recent family stress resulting in domestic violence for which he took anger management classes as well as continued psychotherapy.  Fluoxetine (an antidepressant) replaced the citalopram between March and April 2007.

Despite treatment with medication and psychotherapy, the CI’s depressive disorder condition did not improve sufficiently to meet the requirements of the CI’s military specialty and he was referred for a Medical Evaluation Board (MEB).  At the NARSUM examination dated 6 September 2007, 10 months prior to separation, the CI reported three tours in combat zones.  In late spring of 2003 he was a truck driver and witnessed combat traumas of war.  He was fired upon by enemy combatants numerous times and experienced roadside bombs that damaged his convoys.  He also saw dead and injured people throughout his deployment.  His reaction to the traumas was one of horror and fear.  His deployment was stressful and was exacerbated with problems at home including financial and marital issues caused him to develop subjective depression and anxiety.  However, he deployed again in 2004, and filed for divorce, which was completed in the fall of 2005.  When he returned home he experienced increased mood and anxiety problems, which were manifested by sadness, decreased energy, apathy, anhedonia, and worry.  He had nightmares of combat traumas and became hypervigilant and jumpy when exposed to gunfire and explosive blasts.  Within a few weeks of his third deployment he felt “as if my mind had snapped.”  He relieved his subjective stress by self-mutilating behavior.  Thereafter, he was medically evacuated, and when he returned home, he experienced domestic chaos and had ongoing nightmares and memories of the deployments for which he underwent outpatient psychological and psychiatric treatment.  On his Post-Deployment Health Assessment dated 7 September 2006 he indicated he neither saw anyone wounded, killed or dead nor was engaged in direct combat where he discharged his weapon during the deployment, although he felt he was in great danger of being killed.  Despite treatment he was involved in two documented domestic violence episodes and participated in anger management classes.  At the NARSUM mental status examination in September 2007 the CI was well-groomed and was alert and oriented to person, place, time, and circumstances.  His behavior was calm, cooperative, and interactive.  Speech was normal to rate, prosody, tone, and volume. Eye contact was appropriate. Mood was described as "okay," with the mood congruent, euthymic affect, with broad range in reactivity. Thought processes appeared generally linear, logical, goal directed, and organized with good capacity for abstract thought. Thought content was free of any suicidal or homicidal thought, intent, or plan. He denied any hallucinations, delusional thoughts, an inability to distinguish reality from fantasy, or any other clinical evidence of psychosis.  Judgment was good and insight was broad. Higher cortical functioning was grossly normal. Estimated intelligence level was average and impulse control was good.  The examiner’s diagnoses were post-traumatic stress disorder, chronic as manifested by exposure to repeated combat traumas of death and serious bodily injury and the related responses and depressive disorder as manifested by subjective unhappiness, decreased energy, apathy, and anhedonia.  At the MEB examination (recorded on DD Forms 2807-1 and 2808) dated September and October 2007, approximately 9-10 months prior to separation, the CI reported being on edge a lot, met with a counselor once a week and was on medications for different reasons.  The examiner noted on DD Form 2807-1 the MEB condition was PTSD, deployment related, but did not check off anything related to the psychiatric clinical evaluation on DD Form 2808. 

At the VA Compensation and Pension (C&P) examination on 21 August 2008, performed 1 month after separation, the CI reported disillusionment, depression, social isolation, sleep disturbance, nightmares and flashbacks, irritability, and anger.   At the mental status examination the CI was well-kempt without any impairment of thought process or communication.  There were no delusions or hallucinations and his behavior was appropriate. There was no suicidal or homicidal ideations.  He was oriented in three spheres and his memory was fair.  There were no obsessive or ritualistic behaviors.  Rate and flow of speech were normal and its content was relevant.  There were no panic attacks.  The CI looked mildly depressed and mildly anxious and did complain of pain in his shoulder, knees and back (see below).  He described sleep disturbance and there was some irritability and anger including hitting his wife in his sleep.  He had some weight gain, which he attributed to medications; however, his appetite was normal.  The examiner’s diagnoses were depression, NOS and PTSD, chronic.  He noted there was reduced reliability and productivity due to mental disorder signs and symptoms as manifested by discharge, current unemployment, and his previously mentioned symptoms.  His Global Assessment of Functioning (GAF) score was 65 (moderate symptoms).  The examiner opined the CI fulfilled features compatible with PTSD from exposure three tours in combat zones, at least one of which involved driving trucks in convoys and exposure to IEDs.  His service exposures to stressors manifested in depression and anxiety best described in the diagnoses of PTSD and depression.

The Board directed attention to its rating recommendation based on the above evidence.   The PEB rated the depressive disorder 10%, coded 9434 (major depressive disorder), citing symptoms controlled with continuous medication.   The PEB applied an undetermined EPTS (existed prior to service) factor in their adjudication.  The VA also rated the depressive disorder 10%, coded analogous 9411-9434 code (post-traumatic stress disorder) based on the VA C&P examination 1 month after separation, citing 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 Board considered whether the provisions of VASRD §4.129 (mental disorders due to traumatic stress) were applicable.  In accordance with VASRD §4.129, when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the CI’s release from active military service, the rating agency should assign an evaluation of not less than 50% and schedule an examination within the six month period following the veteran’s discharge to determine whether a change in evaluation is warranted.  While the deployment stressors played a role in the evolution of the CI’s psychiatric disorder, overall evidence points to a combination of non‐service connected domestic stressors as well as the cumulative combat stress of three deployments.  However, after extensive discussion by the Board members, there was no one highly stressful event that could be ascertained from the record, which was very carefully reviewed in order to invoke §4.129.  While the CI was in combat zones, even after three tours, there was no evidence of a bona-fide event where a combat decoration or badge would have been awarded.   Furthermore, on his Post Deployment Health Assessment in 2006 he indicated he did not see anyone wounded, killed, or dead during the deployment and was not treated for any traumatic injuries, although he was medically evacuated for self-mutilating behavior to relief stress.  Therefore, Board members agreed that the conditions of §4.129 were not precisely met in this case despite the subsequent PTSD diagnosis.  

The Board then turned to its rating recommendation. All members agreed that the §4.130 threshold for a 70% rating was not approached and that the criteria for a 10% rating was exceeded.  Therefore, the deliberation settled on consideration of a 50% versus a 30% rating recommendation.  A 50% rating requires “occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships,” while a 30% rating 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), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).”  While the CI had disturbances in motivation and mood and difficulty in establishing and maintaining effective work and social relationships as markers of a 50% rating, his condition and symptoms were more congruent with a 30% rating since he had been generally functioning satisfactorily, with routine behavior, self-care and conversation normal, although he still had a depressed mood, anxiety, and chronic sleep impairment. 

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the depression condition, coded 9434.  

Contended PEB Conditions: Posttraumatic Stress Disorder, Bilateral Shoulder Pain and Low Back Pain.  The Board’s main charge is to assess the fairness of the PEB’s determination that posttraumatic stress disorder, bilateral shoulder pain and low back pain were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The posttraumatic stress disorder was profiled and implicated in the commander’s statement, but was not judged to fail retention standards by the PEB.  The low back pain condition was implicated in the commander’s statement.   The commander wrote that he has “not dealt with the SGT Loveless and his situation” since assuming command in the previous 2 months.  The commander referenced the CI’s permanent S3 profile from January 2008 that did not restrict activities in all categories (allowed to take full, regular physical fitness test). However, the commander went on to reference that per a previous decision regarding the CI’s back condition, he was restricted from all APFT events but could perform the walk modified event.  The low back pain was  not profiled and was not judged to fail retention standards. The bilateral shoulder pain was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  

Posttraumatic Stress Disorder.  After 3 deployments the CI reported he was exposed to combat, faced incoming enemy fire, witnessed IED explosions directed to his convoys, and saw dead civilians.  However, his symptomatology and treatment were intertwined and discussed above in depth in relation to depression.  The PEB noted that even though the PTSD was determined to fail retention standards, it could not be rated since no verified stressors were identified and when elements of depression were eliminated it was not separately unfitting.  

Because of the admixing, overlapping, and intertwining of the CI’s symptoms as well as the basis for his medical evacuation from the theater, the Board was unable to sufficiently separate the symptomatic nuances and behavior related to the PTSD from that of the depressive disorder to find it separately unfitting.  

Board members, however, did note that the VA despite citing PTSD with depression, nevertheless rated the condition 10% using code 9411-9434 rather than code 9411 exclusively, thereby suggesting the depressive disorder was the ratable condition.  Therefore, 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 posttraumatic stress condition.  Furthermore, the Board cannot recommend it for an additional disability rating IAW VASRD §4.130 where a disability associated with any psychiatric condition, regardless of the diagnosis or multiple diagnoses such as the depressive disorder and PTSD in this case, is subsumed under a single rating using the same criteria IAW the General Rating Formula for Mental Disorders.

Low Back Pain. In January 2007 the CI reported back problems for 7 years, which he felt was related to jolting of his body from truck driving.  Thoracic spine X-rays were normal and there were mild degenerative changes with anterior osteophytes and end plate sclerosis involving L2 and L3 with narrowing of the T11-12 and T12-L1 disk spaces.  Treatment consisted of ibuprofen (an NSAID) and acetaminophen (a pain reliever) along with physical therapy and chiropractic adjustments through August 2007.  In September 2007 the CI noted back pain and shoulder pain (see above).  On examination the thoracolumbar spine demonstrated tenderness on palpation and pain was elicited throughout the range of motion (ROM).  Magnetic resonance imaging of the thoracic and lumbar spine demonstrated mild degenerative disk disease at L5-S1.  In April 2008 the CI noted constant back pain and he exhibited tenderness on palpation on the upper, mid and lower back.  Neurologic evaluation was unremarkable.  The CI did not report for a VA C&P examination.

Thoracolumbar ROM
(Degrees)	FP ~18 Mo. Pre-Sep
	
DD 2808 ~15 Mo. Pre-Sep
	
Flexion (90 Normal)	Normal	FAROM	
Extension (30)			
R Lat Flexion (30)			
L Lat Flexion (30)			
R Rotation (30)			
L Rotation (30)			
Combined (240)			
Comment		No spasm and negative straight leg raising (to determine nerve root irritation)	
§4.71a Rating	-	-	

There was no performance-based evidence from the record that bilateral shoulder pain and the low back pain conditions significantly interfered with satisfactory duty performance at separation.  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 bilateral shoulder pain and the low back pain contended conditions; and so, no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the depressive disorder condition, the Board unanimously recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  In the matter of the contended posttraumatic stress disorder, bilateral shoulder pain and low back pain conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Depressive Disorder	9434	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140310, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB																		
14 NOV 2016

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 AR20160016539 (PD201401259)

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 re-characterize 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:	       
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA