RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		 CASE:  PD-2014-01271
BRANCH OF SERVICE:  Army	 SEPARATION DATE:  20070820

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty 0-4 (Military Intelligence Officer) medically separated for major depressive disorder, a neck, thoracic and lumbar spine conditions.  These conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent U3S3 profile and referred for a Medical Evaluation Board (MEB).  “Major depressive disorder” and “chronic neck, thoracic and lumbar spine pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one medically acceptable condition (dependent personality disorder) for PEB adjudication.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated major depressive disorder, thoracolumbar spine pain secondary to degenerative disc disease and chronic neck pain secondary to degenerative disc disease as unfitting conditions rated 10%, 10% and 0%, respectively, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The personality disorder was determined to be not unfitting.  The CI made no appeals and was medically separated. 

CI CONTENTION:  She was given a higher rating for her conditions by the VA.  Her 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 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 confined to review of medical records and all available evidence for application of the 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 IPEB – Dated 20070517	VA - (4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Major Depression With Psychotic Features and PTSD	9411-9434	30%	20071220	
Thoracolumbar Spine Pain Secondary To Degenerative Disc Disease	5299-5237	10%	Lumbo-Thoracic Spine Strain	5237	20%	20071203	
Chronic Neck Pain Secondary To Degenerative Disc Disease	5299-5237	0%	Cervical Spine Strain	5237	10%	20071203	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 4	
Combined:  20%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20080114 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Major Depressive Disorder (MDD).  The psychiatric MEB was conducted in September 2006, and finalized after the completion of psychological testing in November 2006, 9 months before separation.  The examiner documented that the CI had no psychiatric treatment prior to the military; however, she reported a childhood history of exposure to sexual trauma (she witnessed her sister being molested).  She also reportedly indicated that she may have been molested but had no memory.  The CI reported she began experiencing psychiatric symptoms in 2001.  She was in an emotionally abusive relationship at the time.  She began to have crying spells, was isolated, and abused alcohol.  She engaged in counseling and noted that she had a trial of an antidepressant but discontinued it because, “I didn’t like taking medication.”  The psychologist noted that the CI also reported a history of date rape by a fellow Officer; however, no charges were pursued.  At the time of the MEB, the CI reported sleep disturbance, depressed mood, decreased energy and concentration, and was noted to have met the criteria for MDD.  Suicidal ideation was not reported, but it was noted she reported past history of suicidal thoughts without attempts.  The mental status examination (MSE) was unremarkable except she was noted to be tearful.  Judgment was recorded as good.  The diagnoses of MDD, recurrent, and dependent personality disorder were documented with A Global Assessment of Functioning (GAF) score of 65-70 (mild).  The examiner noted the service treatment record documented “prior history of PTSD.”  However, it was noted that the CI currently did not meet DSM-IV criteria for PTSD; she met criteria for MDD.  At the time of the NARSUM, the CI was a graduate student, carrying “a fairly high grade point average” in her MBA program.   She was married and reportedly had good social support.  It was opined that although she had been in treatment for a year, she was not likely to improve enough to continue in the service.  The CI was taking two antidepressant medications at the time of the psychiatric MEB.

The VA Compensation and Pension (C&P) mental exam was accomplished 4 months after separation.  The CI was a stay at home mother with a 3-year old son and a 6-month old daughter.  Her psychotropic medication had been discontinued due to the pregnancy.  In May 2007, her obstetrician changed her medication, treating her depression with one single antidepressant medication.  The medication (Cymbalta) was helpful; however, she still had feelings of depression which she felt were manageable. She had not had any psychiatric admission, or visits to the emergency room.  She still had crying spells, and she slept about 6-7 hours, but was often awakened at times by the baby for feeding, and the 3-year old was frequently in and out of her bed.  She also had binging and purging behaviors and frequent headaches. She reported she had some paranoid thoughts about once a month.  She would think that someone was in the house, but would not look for them.  She would tell herself that she was just being paranoid.  She had intrusive thoughts and nightmares of the sexual trauma and childhood sexual abuse, and claimed other symptoms suggestive of PTSD.  The MSE was unremarkable except that she was tearful at times and had a depressed affect.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition of MDD, recurrent at 10%, coded 9434.  The VA granted a 30% rating coded analogously 9411-9434 (MDD and PTSD).  The Board first considered if the provisions of §4.129 were applicable.  All Board members agreed that the preponderance of evidence did not support the application of §4.129.  The Board next considered the rating recommendation.  The higher rating of 30% requires evidence of “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks” 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.  The NARSUM examiner noted that the CI had moderate symptoms of depression, but impairment in global functioning was mild.  Her stressors were related to work, school and being a new mother.  It was not clear to what extent her symptoms interfered with occupational or social functioning.  The commander’s statement mentioned the CI was receiving mental health treatment; however, stated, “Her current physical condition requires frequent medical appointments which limit her ability to fully participate in unit experiments as well as increases the work-load within her staff section.”  There was no mention of poor peer relations, problems with concentration or focus, nor was it noted that the CI demonstrated any impairment in functioning due to lack of sleep, memory issues, or mood symptoms.  The MSE at both the C&P and NARSUM exams were essentially normal.  The CI was noted to have excelled in her MBA program.  There was no evidence in the record of recurrent suicidal behaviors and no impairment in thinking or judgment at any time prior to separation.  The Board acknowledged that her symptoms reportedly increased by the time of the C&P exam; however, the examiner did not offer an opinion in regards to degree of impairment of functioning related to MDD and therefore, the exam had limited probative value. The Board noted the CI was able to provide care for her two small children without any apparent impairment.  There were no reported issues with memory and no evidence of panic attacks or chronic sleep impairment prior to separation.  She had a few depressive symptoms that had not interfered with overall functioning.   The Board also considered the absence of hospitalizations or ER visits.  All Board members agreed, the CI’s condition at the time of separation, most closely reflected the 10% level of impairment for occupational and social impairment due to mild or transient decrease in work efficiency and inability to perform occupational tasks only during periods of significant stress.  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, recurrent condition.  

Thoracolumbar Spine Condition.  The NARSUM dated 20 February 2007, noted that the CI began to experience upper back, neck and lower lumbar spine pain in the winter of 1999.  She had an MRI that showed a small protrusion in the left L4-L5 and mild degenerative facet changes at L4-5 and L5-S1.  The CI underwent treatment that included physical therapy exercises, chiropractic care, muscle relaxers, pain medications and steroids.  Activities such as bending forward, lying flat on the back and stretching relieved the pain.  Her pain worsened with activity.  The CI noted her back pain radiated to bilateral lower extremities.  Physical examination noted tenderness to palpation over T6-T12.  Pain was elicited by motion and relieved by flexion.  Spasm was absent and she was noted to have full range-of-motion (ROM) with flexion at 90 degrees and extension at 30 degrees.  The lumbosacral spine also demonstrated tenderness to palpation at L1-L5 and muscle spasms were noted as well as pain on motion.  Gait and stance were normal.  There was no evidence of deformity or neurosensory/motor deficits.     The VA Compensation and Pension (C&P) was accomplished 4 months after separation.  Physical examination recorded forward flexion ROM of 45 degrees (90 normal) limited by pain, and after repetitive motion the back was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination.  Extension ROM was normal.  Muscle spasm, guarding and localized tenderness were absent.  Sensory and motor exams were normal.  The Board directed attention to its rating recommendation based on the above evidence. The PEB rated thoracolumbar spine condition 10%, coded 5237 (lumbosacral strain), citing mild muscle spasm without gait alteration and tenderness to palpation.  The VA applied the same code to grant a 20% rating based on ROM.  A higher rating of 20% requires spasms producing abnormal gait, or abnormal curvature of the spine, or forward flexion not greater than 60 degrees.  The Board noted the ROM recorded in the NARSUM reflected an examination that was performed in either November 2006 or January 2007 (between 7-10 months before separation).  There was no documented ROM in the service treatment record of evidence in the 12 months before separation with exception of the November or January exam.  The C&P exam was the sole exam most proximate to separation.  The board majority concluded there was not a preponderance of evidence to support the higher rating.  The Board also considered code 5243 (intervertebral disc syndrome); however, this code did not support a higher rating since there was no evidence of incapacitating episodes documented in the record.  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 thoracolumbar spine condition.  

Chronic Neck Pain Condition.  The CI’s history of chronic neck pain dates back to 1999.  Since that time she reported neck spasms, limited ability to rotate to left and right, headaches and tingling and paresthesia in the right arm.  She was treated conservatively with minimal improvement.  Radiographs of the cervical spine demonstrated normal cervical lordosis without evidence of subluxation or fracture.  There was mild loss of disc height at C7-T1.  At the MEB/NARSUM exam, approximately 7-11 months prior to separation, the CI reported pain on motion of her neck that worsened with activity.  The pain was sharp between C2 and C3, with a dull quality radiating forward overhead, down the neck and shoulders.  Physical examination of the cervical spine and upper extremities was not documented.  At the Compensation and Pension (C&P) examination, 4 months after separation, the CI reported her neck pain followed a fall in 1998, and she currently was not receiving any treatment for the pain.  She denied a history of paresthesia, weakness, or numbness.  Physical examination revealed normal strength and reflexes, and normal sensory function. ROM recorded 45 degrees of flexion without pain and 45 degrees on extension with pain at the end range limit.  She had a combined ROM of 270 degrees.  There was no additional loss of motion on repetition.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition at 0% coded 5237, analogously to the muscle strain code.  The VA under the same code granted a 10% based on limitation of motion.  A 10% rating is assigned when there is forward flexion not greater than 40 degrees but greater than 30 degrees, or combined ROM of the cervical spine greater than 170 degrees but not greater than 335, or spasm severe enough to result in abnormal spinal contour. A 20% rating requires forward flexion of the cervical spine of 15 to 30 degrees, or combined ROM of not greater than 170 degrees or spasm not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50% or more of the height.  The Board noted the C&P exam was the sole exam in evidence that documented a complete cervical spine exam, and therefore, was the only exam supporting a rating.  The CI’s combined cervical ROM was 270 degrees, which was consistent with a 10% rating. There was no evidence of ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication.  There was no evidence of incapacitating episodes for a higher rating under 5243. Given the record of evidence the Board could not find other applicable VARSD codes for consideration.  After due consideration, the Board unanimously agreed that a rating of 10%, coded 5237 best reflected the neck condition at separation.  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 neck 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 major depressive disorder condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the thoracolumbar spine condition, the Board recommends by a majority vote, no change in the PEB adjudication. In the matter of the neck condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  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 re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
MDD, recurrent	9434	10%	
Thoracolumbar Spine Pain	5299-5237	10%	
Chronic Neck Pain	5299-5237	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131213, 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 XXXXXXXXXX, AR20160003965 (PD201401271)

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