RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01489
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070510

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E3, Trainee, medically separated for “low back pain (LBP)” and “major depressive disorder (MDD),” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI contends he has had “multiple spinal surgeries following discharge along with increased major depression effecting quality of life.”  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 confined to 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 – 20070427	VARD - 20090424	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain…	5243	10%	S/P Lumbar Diskectomy…	5242	10%	20090424	
MDD	9434	10%	Depression	9434	30%	20090423	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with an L4-5 discectomy in June 2006 for herniated discs at L4-5.  A magnetic resonance imaging study done in February 2007 showed disc desiccation at L4-5 and a definite left sided asymmetric disc bulge at L5-S1.  At the MEB examination recorded on DD Form 2808 dated April 2007, approximately a month prior to separation, the physical examination showed stiffness over the lumbar area, muscle spasm and decreased range of motion (ROM).  The MEB NARSUM examination on 24 April 2007, approximately a month prior to separation, noted complaints of an inability to lift anything greater than 10 pounds without getting severe LBP within 10 minutes and lasted all day.  He rated his LBP at frequently moderate, with exacerbations to severe with walking for approximately 2 minutes.  Physical examination noted his lower back was stiff with tenderness.  He could not bend well.  The physical examination findings are summarized in the chart below.   

At the VA Compensation and Pension (C&P) examination on 24 April 2009, performed approximately 24 months after separation, the CI reported spontaneous constant, crushing, aching LBP and stiffness elicited by physical activity.  He denied any periods of incapacitation.  The CI reported that he had a hard time bending.  The physical examination findings are summarized in the chart below.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under code 5243 (Intervertebral disc syndrome), citing pain limited motion.  The VA also assigned a 10% rating using code 5242 (Degenerative arthritis of the spine) based on the VA C&P examination approximately 24 months after separation, citing tenderness.  The physical therapy (PT) examiner measured the lumbar ROM with a bubble inclinometer rather than the goniometric thoracolumbar ROM specified by the VASRD (§4.71a, Plate V).  The PT examiner did not specify the placement of the device or whether a dual inclinometer method was used.   The Board agreed a 20% rating was justified for the presence of forward flexion greater than 30 degrees but not greater than 60 degrees.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the LBP condition, coded 5243.  

Depression.  According to STR and the MEB narrative summary (NARSUM), the CI began experiencing a change in mood and behavior that began in September 2005.  He had crying spells and for a brief period felt suicidal but made no attempts.  He sought behavioral health services and was treated with therapy and medication without great improvement.  He reported a decline in energy, difficulty sleeping, decreased interest, social isolation, decreased concentration, and hopelessness.  He reported these feelings interfered with his duties and responsibilities as a clerk.  It was also difficult getting to formation in a timely fashion but reported he was in good standing with his chain of command.   Mental status examination (MSE) noted a dysphoric mood and congruent affect.  He denied suicidal ideation, and had appropriate judgment and partial insight.  A diagnosis of major depressive disorder (MDD) was rendered with a Global Assessment of Functioning (GAF) of 55 (moderate.)  Impairment for social and industrial adaptability was mild.  The commander’s statement noted he was a good soldier and did not implicate mental health (MH) issues as a condition interfering with the performance of duties.  

At the MEB examination recorded on DD Form 2807, Record of Medical History, dated April 2007, a month prior to separation, the CI reported sleeping problems due to stress, depression and pain.  He was taking a new medication for depression.  At the VA C&P performed 2 years after separation, the CI reported feelings of anger, sleep difficulty and inadequacy.  He was not receiving treatment, had not been hospitalized and had not made emergency room visits for psychiatric problems.  He worked as a bartender for the past 7 months and had good relationships with his supervisors and co-workers.  Family relationships were also good and he was engaged.  MSE noted flat affect, anxiety, depressed mood, and mild memory impairment.  A diagnosis of depression was rendered with a GAF score of 75-80 (transient symptoms, slight impairment.)

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under code 9434 (major depressive disorder), citing mild impairment.  The VA assigned a 30% rating using the same code, and based on the VA C&P examination 24 months after separation.  The 10% rating was required for social/occupational impairment due to mild symptoms and the 30% rating was required for social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  The NARSUM examination noted the CI still had depression and this, in addition to stress and pain, was causing sleep problems.  Yet, he was able to work for the past year as a clerk and had friends.  He was in good standing with his commander, who did not implicate MH issues as interfering with duties.  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.  

BOARD FINDINGS:  In the matter of the LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the MDD condition and IAW VASRD §4.130, the Board recommends no change in the PEB adjudication.  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, effective as of the date of the prior to medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5243	20%	
Major Depressive Disorder	9434	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140327, 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 XXXXXXXXXXXXXXXXXXXX, AR20160007290 (PD201401489)

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