RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02294
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051113

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

CI CONTENTION:  The applicant requests consideration of all 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 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 - 20051102	VARD - 20080402	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lower Back Pain	5237	10%	Lower Back, Degenerative Disc Disease 	5237	10%	20080402	
Major Depressive Disorder 	9434	10%	Posttraumatic Stress Disorder and Major Depressive Disorder (Claimed as Anxiety Disorder)	9411	70%	20080211	
Anxiety Disorder	Not Unfitting					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Lower Back Pain.  The service treatment record (STR) indicated the CI injured his back while lifting a tire in November 2004.  He was treated with two epidural steroid injections (ESI) in theater and underwent physical therapy with no significant long-term improvement.  The CI noted he had occasional tingling down his right foot into his leg and walked with a mild positive antalgic (limp) gait.  An X-ray series of the lumbar spine, ordered for low back pain and left lower extremity radiculopathy, showed some slight degenerative change at L5-S1.  Magnetic resonance imaging (MRI) performed on 9 December 2004 revealed degenerative disc disease notable at L3-4, L4-5, and L5-S1 with spinal canal stenosis and neural foraminal (opening between vertebrae) narrowing.  A note dated 31 January 2005 indicated the CI had no radicular symptoms, paresthesias, weakness, bowel or bladder dysfunction, but he did have a slow moving gait.  However, in April 2005, the CI reported back pain and his right leg “gives out” and he could get shooting pain down the leg.  Examination revealed no atrophy, 5/5 muscle strength with some giveway [weakness] in the right peroneals (muscles on the outside of the leg) with intact sensation and reflexes of the knee and ankle.  Electrodiagnostic testing suggested a proximal lesion in the L4-5 roots or lumbar plexus related to the peroneal nerve.  There was a right sural nerve myelinopathy, but right peroneal and tibial motor responses were normal, although there were mild changes suggestive of chronic denervation in the tibialis anterior muscle.  Additional ESI’s were given in August and September 2005 for lower back pain and right lower extremity radiculopathy.  Lortab 5/500 (hydrocodone, a narcotic, and acetaminophen, a pain reliever) was added to Robaxin (methocarbamol, a muscle relaxer) for pain relief.  The narrative summary (NARSUM) Orthopedic Addendum dated 29 August 2005 range of motion (ROM) measurements are in the chart below.  The CI’s Military Occupational Specialty (MOS) required performance of manual type tasks to include carrying heavy equipment and driving large vehicles; however, because of functional limitations and associated pain, he could not perform his duties.  

At the Medical Evaluation Board (MEB) examination dated 30 August 2005, the CI noted he had lower back pain since November 2004 and was taking “meds for and doing PT (physical training)…[with] no improvement.”  A permanent L3S3 profile issued on 21 October 2005 for lower back pain restricted the CI from all functional military activities including no repetitive running, jumping, or jumping jacks.  The CI failed to report for VA Compensation and Pension (C&P) examinations on 6 December 2007 and 28 January 2008 and the VASRD dated 2 April 2008 rating was based on VA progress notes from 12 January 2004 to 2 April 2008.  The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT 6.2 Mo. Pre-Sep
	
Pain Management
3.0 Mo. Pre-Sep
	Ortho NARSUM Addendum
 2.5 Mo. Pre-Sep

Pain Management
2.0 Mo. Pre-Sep
	
Flexion (90 Normal)	60	Approx. 70	75	60	
L Rotation (30)	--		30	(30)40	
Combined (240)	--		225	-	
Comment	Gait normal; DTRs lower extremities 2+ bilaterally; negative straight leg raise; anterior glides L3-S1 painful grade IV++	Moderate paraspinalis, quadratus lumborum and gluteal tenderness to palpation; neurologic exam unremarkable	DTRs of the lower extremities were intact bilaterally; negative straight leg raise; normal heel and toe walk; mildly positive antalgic gait	
Exam just prior to second ESI; straight leg testing negative bilaterally; motor strength 4/5; sensory WNL	
§4.71a Rating	20%	10%	10% (PEB 10%)	20%	
IAW §4.59 (Painful motion)

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a rating of 10% using code 5237 (lumbosacral or cervical strain) based on August 2005 examination that demonstrated limited motion (greater than 60⁰ but not greater than 85⁰).  It was more proximate to separation than the physical therapy evaluation that measured forward flexion at 60⁰, which would warrant a 20% rating (30⁰ but not greater than 60⁰).  However, at a pain management examination in August 2005, 2 months prior to separation, flexion was again 60 degrees.  The VA rating of 10% was based on available medical evidence that showed the CI’s complaints of lower back pain and degenerative disc disease on a MRI in service.  Therefore, the more comprehensive examination on which the PEB may have based its rating was the orthopedic addendum, but the Board must account for pain management ROM measurements that were more proximate to separation, but were obtained just prior to an ESI; therefore, its use for a rating determination to reflect the CI’s condition at the time of separation is not completely appropriate especially since the examination did not include rotation measurements and the flexion was at the cusp between a 20% rating and a 10% rating.  Furthermore, the record neither had an explanation for the diminution of flexion measurement at the pain management examination nor did the record indicate whether or what degree of improvement or lack of improvement was achieved after the ESI and how long relief and improvement lasted or did not last. The Board then considered whether an additional service rating could be recommended under a peripheral nerve code.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.  Therefore, the Board recommends a 10% rating both for Temporary Disability Retired List (TDRL) placement and removal since there were no additional examinations after separation in the record on which to base a rating at variance with the 10% rating.

Major Depressive Disorder. The STR indicated the CI deployed three times, twice as a Marine and the last time as an Army reservist.  He had significant combat exposure during a deployment in Iraq from January to May 2003 at which time his NCO was seriously injured and two warrant officers were killed; artillery rounds were fired on his unit’s positions; and he felt guilt having to point weapons towards children.  He had no psychological symptoms while in Iraq.  His last deployment was to Kuwait, which the CI noted “smelled like death.”  Treatment for anxiety was commenced while he was still in-theater; however, it was for low back pain that he was returned to the United States.  His first “anxiety attack” occurred while driving his car at home in April 2005 and was marked by “a pounding/racing heart,” a fainting feeling, tingling down his extremities, shaking, difficulty breathing, and sweating.  He initially had attacks at least 3 times per week and was taken to the Emergency Room (ER) when he had multiple attacks with chest pain in one day.  He also reported hand tremors when stressed, although they had been present since childhood.  Treatment in an intensive outpatient program (IOP) and medication (Paxil (paroxetine, an antidepressant), clonazepam (to treat anxiety, seizures, and panic disorders), Xanax (alprazolam to treat anxiety and panic disorders), Zyprexa (olanzapine, an antipsychotic medication) and Desyrel EQ (trazodone, an antidepressant)) had helped, but he did not “like being around large crowds.”  The CI had difficulty sleeping and began drinking heavily to “help himself fall asleep.”  The drinking resolved once medication was introduced and he was able to sleep well thereafter.  

At the MEB NARSUM examination performed on 11 August 2005, 19 September 2005, and 21 September 2005, approximately between 2 to 3 months before separation, the CI reported symptoms of guilt about his interpersonal relationship with his spouse, had shaking episodes, felt uncomfortable around and avoided crowds, had sleep difficulties and anxiety attacks (“like a heart attack”), stuttered, felt tired during the day, was startled/scared by loud noises and artillery, and had poor memory and concentration around groups of people.  Over the course of treatment the CI was prescribed, antidepressant and anti-anxiety medication.  At the initial examination he was mildly disheveled and his speech was mildly slow and shaky.  He denied any alcohol use.  His mood was “bad and cranky” with constricted affect.  Thought processing was linear and logical but slowed.  At the follow-up examination he was less anxious with some mental slowing and mild memory problems that may have been related to medication.  He was diagnosed with anxiety disorder NOS sufficient enough to cause moderate impairment in his occupational and social functioning and major depressive disorder, single episode, likewise sufficient enough to cause moderate impairment in his occupational and social functioning.  His Global Assessment of Functioning (GAF) scale was 60 (moderate symptoms).  Prognosis was deemed fair to good, but although he had improved with treatment, he continued to manifest significant symptoms.  

At the MEB medical examination dated 16 September 2005, approximately 2 months before separation, the CI reported that he had frequent trouble sleeping, received counseling, and had depression or excessive worry and “was currently on meds for anxiety.”  The medical examiner noted a diagnosis of anxiety disorder as a significant or disqualifying defect. The commander’s statement dated 30 September 2005 indicated the CI was physically incapable of performing his duties due to anxiety depressive disorder and lower back pain.  A permanent L3S3 profile was issued on 19 October 2005 for lower back pain, anxiety disorder NOS, major [depressive] disorder, single episode, and alcohol dependence with limitations of all physical fitness testing and all functional military activities.  

At the VA Compensation and Pension (C&P) examination dated 11 February 2008, approximately 27 months after separation, the CI reported feeling nervous and depressed much of the time, had anxiety attacks, noted depressive symptoms daily and nightmares of Iraq nightly with poor sleep.  After separation, the CI continued to have panic attacks marked by dizziness, shortness of breath, sweating and shaking.  He held several jobs and had a boss who understood his need for time off, which included several breaks from work.  Additionally, he had legal issues related to alcohol use.  Finding his mother dead and witnessing physical abuse between his parents were pre-military stressors that contributed to his joining the military and along with his subsequent combat experiences led the VA examiner to indicate the CI appeared to meet the diagnostic criteria for posttraumatic stress disorder (PTSD) as well as for major depressive disorder, recurrent severe, which was likely secondary to the veteran’s PTSD symptoms.  The CI’s panic attacks were felt to occur within the context of PTSD symptoms.  His GAF was determined to be 48 (major impairment in several areas) and the depression likely exacerbated his PTSD symptoms and vice versa.  PTSD signs and symptoms resulted in deficiencies in most of the following areas:  work, judgment, thinking and mood.  Depression resulted in occupational impairment such that he would “go off” by himself and he used alcohol as a means of coping.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the CI at 10% (mild industrial impairment) for major depressive disorder using code 9434 and found the condition of anxiety disorder NOS not unfitting.  On 2 April 2008, 27 months after separation, the VA rated the CI 70% based on a hospitalization 5 weeks earlier and symptoms of depression using code 9411 for PTSD, and major depressive disorder (also claimed as anxiety disorder).  There was performance based evidence from the record that the depressive disorder did significantly interfere with satisfactory duty performance at the time of separation.  However, the CI was not placed on TDRL.  Just as the NARSUM author, the MEB examiner and the commander acknowledged the anxiety disorder as one of the CI’s conditions, so too did Board members, who noted that although the PEB considered the anxiety disorder as not unfitting, it was a component diagnosis of the CI’s overall mental health.  

The Board considered whether the provisions of VASRD §4.129 (Mental disorders due to traumatic stress) was applicable.  The PEB acknowledged that his conditions was the direct result of armed conflict, albeit the CI had pre-service events involving abuse between parents and finding his mother dead.  Those events along with military service, when he experienced significant injuries in-theater including seeing injured and killed marines during his deployment, were traumatic therefore, Board members agreed the provisions of §4.129 were applicable in this case.  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 6-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.  The Board is therefore obligated to recommend a minimum 50% rating for a retroactive 6-month period on the TDRL.

The Board next considered the §4.130 rating at the time of constructive TDRL placement.  There was no evidence of more severe or extensive deficiencies to warrant higher than 50% rating for TDRL placement. The Board next determined the most appropriate fit with VASRD §4.130 criteria at the end of TDRL for its permanent rating recommendation.  However, because the VA examination was 27 months after separation, the Board must weigh the evidence contained in the MEB records and psychiatric NARSUM, balanced by the VA evidence fairly remote from separation, in order to extrapolate an estimation of the ratable impairment at 6 months after separation.  DoDI 6040.44 specifies a 12-month interval for special consideration to VA findings, rendering the probative value of the VA evidence in this case very limited.  The Board recognizes, however, that the delayed VA examination reflects the stress of transition to civilian life especially in the case of a reservist, which is intrinsic to the permanent rating recommendation.  However, the remoteness of the examination and the proximate hospitalization to the time of the rating deprives the Board of evidence for judging the stress of transition to civilian life, which is a key intent of §4.129, and generally a significant element underlying the Board’s permanent rating recommendation.  In cases such as this, the Board, of necessity, must base the permanent rating recommendation on the information at separation and, to a certain extent, on the anticipated prognosis at 6 months.  The Board first considered whether the mental health condition was unfitting at TDRL removal.  Information was obtained from the VA C&P examination post-separation that indicated the CI was working but having difficulty due to anxiety symptoms requiring frequent breaks, had no outpatient psychotherapy but received medication monitoring sporadically, had interim legal issues, and was hospitalized twice in 2008.  

The Board was unable to proportion how much of the overall mental disability was attributed to MDD or anxiety disorder.  However, all Board members agreed the constellation of symptoms was best reflected in the 30% disability rating.  Therefore, the Board recommends a TDRL removal rating of 30%, while noting that his diagnosis at the VA examination 27 months after separation was PTSD (posttraumatic stress disorder).  There was insufficient evidence to support a 50% rating proximate to separation in the absence of documentation or mental health intervention of significance nor is a 70% rating at the time of separation warranted since the CI was working and had not been hospitalized.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the major depressive disorder conditions upon constructive TDRL placement and 30% on TDRL removal. 

Contended PEB Conditions:  Anxiety Disorder.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation. The PEB did not subsume the anxiety disorder with the depressive disorder or link the two conditions together in its determination of unfitness of the overall mental health condition.  Board members noted that VASRD §4.130 uses the General Rating Formula for Mental Disorders, and is obliged to rate MH conditions based on symptoms and not diagnoses.  Therefore, all MH symptoms are included under the MDD rating above.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the lower back pain condition, the Board recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a for placement on the TDRL (6 months) and a 10% rating upon final separation.  In the matter of the major depressive disorder condition, the Board unanimously recommends a disability rating of 50%, coded 9434 IAW VASRD §4.129 and VASRD §4.130 for TDRL placement and a 30% rating 9434 IAW VASRD §4.129 and VASRD §4.130 for TDRL removal.  In the matter of the contended anxiety disorder 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. The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Lower Back Pain	5237	10%	10%	
Major Depressive Disorder	9434	50%	30%	
RATING	60%	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140520, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXX AR20160013310 (PD201402294)

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  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
60% disability for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40%.

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 temporary disability 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 day following the six month TDRL period.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, provide 60% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 40% effective the day following the constructive six month TDRL period.  

	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:

 

CF: 
(  ) DoD PDBR
(  ) DVA