RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02371
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20020621

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty National Guard (Active Guard Reserve (AGR)) E-5 (Personnel Information Systems Management Specialist) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3S3 profile and referred for a Medical Evaluation Board (MEB).  The “L5-SI degenerative disk disease with herniated nucleus pulposus and no evidence of neurocompression” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded seven other conditions (T6 compression fracture, major depressive disorder with posttraumatic stress disorder, neck pain, irritable bowel syndrome, migraine headaches, mild reactive airway disease, and erectile dysfunction) for PEB adjudication.  The Informal PEB (IPEB) adjudicated the back pain condition as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant requests consideration of all his conditions.  His 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/Naval 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:  

IPEB – Dated 20020522	VA* - (~12 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain …	5295	10%	Chronic Lumbosacral Strain …	5295-5292	20%	20030528	
T6 Compression Fracture	Not Unfitting	Residual, Vertebral Fractures, Thoracic Spine	5291	10%	20030528	
Major Depressive Disorder w/PTSD	Not Unfitting	Major Depressive Disorder …	9211-9434	100%	20030724	
Neck Pain	Not Unfitting	No VA Placement	
Irritable Bowel Syndrome	Not Unfitting	No VA Placement	
Migraine Headaches	Not Unfitting	No VA Placement	
Mild Reactive Airway Disease	Not Unfitting	No VA Placement	
Erectile Dysfunction	Not Unfitting	No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  100%	
*Derived from VA Rating Decision (VARD) dated 20030820 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Low Back Pain Condition.  The service treatment record (STR) detailed that the CI injured his back in 1993 (nine years pre-separation) while moving a 70 pound barrel; he heard an audible snap in his back and experienced immediate pain.  He was diagnosed with back strain and treated with a back brace and physical therapy.  He continued with back pain; it was not severe but he claimed to never return to his previous level of function.  He did not have a profile and kept up his regular fitness routine.  In 1999 (three years pre-separation) he had another injury (jumping off a water buffalo), heard a pop in his back again, and experienced immediate pain with some left sided “weakness” which lasted 45 minutes.  He was again diagnosed with back strain and was treated conservatively.  Subsequently, he had increasing back pain with some radiation of pain down the left leg to his foot.  Magnetic resonance imaging (MRI) in October 2000 reportedly showed degenerative disk disease of the L5-S1 disk and a mild disk herniation with no neurocompression.  He was placed on a permanent profile by orthopedics in August 2000 and sent back to his unit.  In January 2002 (4 months pre-separation) the CI fell 6 to 9 feet off a fence and suffered a burst fracture of T6 without any neurologic injury, which was treated with a TLSO (thoracolumbar sacral orthosis) back brace.  It was determined that he could not perform the full scope of duties required by his MOS and that his condition was slowly worsening over time, and he was referred to the PEB.  

At a neurosurgery consultation on 8 March 2002 (3 months pre-separation and 2 months after the T6 fracture), but signed on 22 April 2002, the CI had normal (5/5) strength, although some give-way weakness was noted secondary to back pain.  Hypoesthesia (decreased sensitivity to stimuli) was noted subjectively in the left S1 dermatome.  Range of movement in the lower back and upper back could not be fully assessed secondary to pain complaint; in addition, the examiner opined that these maneuvers would be risky especially when considered in light of the CI's injury (T6 compression fracture).  X-rays showed a worsening compression anteriorly of the T6 vertebra from 40% to 60%, as well as worsening kyphosis from 25-40 degree angulation.  The examiner concluded that the CI's injury has shown deterioration and might require further surgical intervention, and that the CI did not meet Army retention standards.  

A work restriction (“sedentary work without lifting”) written by a civilian provider on 17 April 2002 addressed the thoracic burst vertebra (the clinical note was not available).  At an emergency room evaluation on 19 April 2002, the CI complained of 10/10 back pain, but it is not clear if this was the thoracic or lumbar spine, or both.  On examination, there was tenderness of both the thoracic and lumbar spine, and normal strength (5/5) and sensation of the lower extremities.  

At the NARSUM examination on 24 April 2002 (2 months pre-separation and 3 months after the T6 fracture) there was minimal tenderness to palpation over the central aspect of the lower lumbar spine in the area of the L5-S1 junction, and normal sensation to light touch.  There was slight (4+/5) decreased strength of left lower extremity, which was difficult to assess due to slight cogwheel-type breakaway weakness in every muscle group.  He had forward bending to 85 degrees (normal 90) with minimal back pain, and extension to 20 degrees (normal 30).  The examiner opined that both the lumbar degenerative disc disease and the T6 compression fracture were disqualifying for duty.  

At the VA Compensation and Pension (C&P) exam performed on 28 May 2003 (11 months post-separation), the CI complained of a “catching” of the L5-S1 region with an aching pain in the thoracic area, which was exacerbated somewhat by cold weather.  He denied the use of assistive devices, and rated his back pain as 90% of the total discomfort and 10% being in the left posterior leg.  He had no other neurologic impairments, and his walking distance was “unlimited” (he was able to walk 13 miles at one time).  On examination, the CI moved about the room “without significant difficulty” and demonstrated “no difficulty ambulating through the passageways of the hospital.”  There was normal alignment of the spine with no evidence of significant abnormal curvatures.  Forward flexion was “a maximum of 74 degrees with a report of pain at 46 degrees,” extension to 42 degrees (normal 30) with pain starting at 32 degrees, rotation to the right a maximum of 6 degrees with a denial of pain response, and rotation to the left a maximum limited by pain to 12 degrees.  Muscle strength (5/5) and sensory function of the lower extremities was normal.  

The Board directed its attention to its rating recommendation based on the above evidence.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  The Board noted that the 2002 VASRD standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004.  The PEB rated the condition at 10%, coded 5295 (lumbosacral strain), citing characteristic pain on motion.  The VA rated the condition at 20%, coded 5295-5292 (lumbosacral strain – limitation of motion of lumbar spine), citing highlights from the STR and C&P examinations.  Specifically, a 20% rating is warranted under code 5292 by moderate limitation of lumbar spine motion; or under code 5295 by lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position.  

The Board noted the disparity between examinations with implications for the Board's rating recommendation, deliberated the probative value of these conflicting evaluations, and carefully reviewed the entire file for corroborating evidence from the period preceding separation.  Of significant import to the Board (if not the definitive benchmark) is the temporal alignment of any evidence to the date of separation, which attenuated the probative value of the VA C&P exam.  All exams exhibited some decreased range-of-motion (ROM), which supported a 10% rating, coded 5292 (slight limitation of motion of lumbar spine) or 5295 (lumbosacral strain with characteristic pain on motion).  The flexion (74 degrees) and extension (42 degrees) reported in of the VA C&P exam also supported a rating of 10%, although both of those movements were associated with painful motion during a portion of the ROM.  The Board reviewed the relatively limited left and right rotation in the VA exam, but opined that this was not compelling to the rating decision since reduced spinal rotation largely reflects thoracic and not lumbar disability.  The Board not find sufficient evidence in the available records to support a 20% rating based on ankylosis (codes 5288 and 5289); moderate limitation of motion of lumbar spine (code 5291); or lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion in standing position (code 5295).  The Board did not find sufficient support for a higher rating based on evidence of lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion; or incapacitating episodes having a total duration of at least four weeks but less than six weeks during the previous 12 months.  In order to recommend separate rating for radiculopathy associated with unfitting spine conditions, the Board must establish a functional impairment linked to fitness; a threshold clearly not reached by the evidence in this case.  After due deliberation 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 pain condition. 

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that T6 Compression, PTSD/major depressive disorder (MDD), neck pain, irritable bowel syndrome, migraine headaches, mild reactive airway disease, and erectile dysfunction 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.  

T6 Compression Fracture.  The history for this condition is included with that for Low Back Pain Condition above.  The injury occurred on 19 January 2002, 4 months pre-separation.  This condition found to be disqualifying by the MEB, was found to be not unfitting by the PEB, and was rated 10%, coded 5291 (Spine, limitation of motion of, dorsal) by the VA (Moderate), separate from the chronic lumbosacral condition.  The T6 compression was not listed on the DA Form 3349, Physical Profile.  The Board noted that as late as 17 April 2002 that the CI was given duty restrictions for the T6 compression fracture, and that at the neurosurgery consultation signed on 22 April a ROM evaluation could not be completed due to pain and the risk due to recent injury.  The Board found that a 10% rating was supported by either painful motion §4.59 or (in some exams) moderate limitation of motion.  The record did not support a higher rating based on ankylosis of the thoracic spine.  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of T6 compression favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 5291 and meets the VASRD §4.71 criteria for a 10% rating. 

Major Depressive Disorder with PTSD.  Dermatology requested a psychiatric consultation because the CI had a history of excessive worry, sleep deprivation, and an apparent inability to complete forms without a great deal of anxiety.  The MEB DD Form 2807, Report of Medical History, dated January 2002, documented the CI had difficulty with sleep, anger management, stress control counseling, and depression treated with medication.  The medicine was discontinued because of impotence.  A consult by an active duty psychiatrist was done on 10 January 2002 (5 months pre-separation).  The CI reported that he recovered well and returned to full duty after his first back injury in 1993, but had constant pain after his second injury (undated).  He was doing well emotionally until 2001 when he noted depressed mood, anhedonia, insomnia, crying spells, and feelings of hopelessness and helplessness.  He felt unsupported by his supervisors.  Several anti-depressant medications were prescribed but had to be stopped due to side effects, and he was on citalopram with some improvement over the previous 3 months.  He reported sexual abuse at age 16 and continued to have nightmares related to the event.  He endorsed symptoms of PTSD and reported symptoms were much worse when he was depressed.  He was in his fourth marriage.  The CI’s mood was described as “mild depression,” but the rest of his mental status examination (MSE) was unremarkable; his Global Assessment of Functioning (GAF) was 72 (if symptoms are present they are transient and expectable reactions to psychosocial stressors; no more than slight impairment in social, occupational, or school functioning).  Impact on duty was noted to be significant.  The final diagnoses were MDD and PTSD; the examiner stated that the CI’s psychiatric condition was disqualifying for retention on active duty and that if he were retained on active duty, that he would require weekly access to a clinic for continuing psychiatric care.  

In a memorandum for the PEB on 13 February 2002 (4 months pre-separation), the CI’s commander stated that, for the previous 12 months, the CI had been unable to perform his primary MOS “due to deteriorating physical and mental conditions.”  The CI had been counseled numerous times for failure to report for duty or notify his immediate supervisor that he was unable to report for duty, claiming that during these occasions he was physically incapacitated and unable to reach his telephone to inform his supervisor of the situation.  He had been counseled for repeatedly disobeying direct orders that required him to provide medical documentation from his civilian medical practitioner for PEB board review.  The commander stated, “Many of [the CI’s coworkers] have found his behavior to be threatening and fear him.  This is due in large part to his demeanor during counseling and coaching sessions.”  The commander also noted that the CI challenged all authority over him to include the medical professionals at the medical center.  He continued to disobey orders given to him by his neurosurgeon by frequently operating a motor vehicle.  The commander concluded, “In my opinion, [the CI] is not physically or mentally able to perform the duties of a soldier”.  A DA Form 3349, Physical Profile, was initiated on 24 April 2002 and the CI was given an S3 profile for MDD and PTSD, recommending no assignment to isolated areas where definitive weekly access to hospital psychiatric care was not available.  

At the VA Compensation and Pension (C&P) PTSD exam performed on 24 July 2003, 13 months after separation, the CI talked about being molested at age 15 or 16 at a bus depot, as well as difficulties over the last several years in the Army (including alleged harassment and mistreatment) and in his personal life.  The examiner stated, “There do not appear to be characteristics that would go with PTSD at present.  There was no immediate life threatening stressor to his life situation.  He claims the harassment and mistreatment while in the service as already indicated.  However, there was apparently no threat to his actual physical well-being. He appeared at the interview wearing a bicyclist outfit and very long beard.  The interview was difficult because he seemed preoccupied with his own issues.  At some point his presentation became somewhat garbled.  He discussed difficulty filling out forms wondering what is really intended by some of the items, feeling that anything he might endorse would be used against him.  He does appear to have very significant psychiatric issues but the support for PTSD is almost nonexistent.”  The examiner’s differential diagnosis was between depression with psychotic features and schizoaffective disorder, and the GAF was 28 (“behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment OR inability to function in almost all areas”).  The examiner also stated, “He would likely not be able to manage any funds, which might be made available to him,” and the VA subsequently found the CI incompetent for VA purposes.  

The Board directed its attention to its recommendation based on the above evidence.  The MEB forwarded MDD and PTSD as medically unacceptable to the PEB who adjudicated them as not unfitting.  The VA rating decision on 20 August 2003, based upon the examination performed 14 months after separation, rated the CI’s condition at 100% for MDD with PTSD , coded 9211-9434 (schizoaffective disorder with MDD), citing extensive clinical symptoms in the mental status exam (MSE) as indicated above.  The Board’s main charge with respect to the MDD and PTSD conditions is an assessment of the fairness of the PEB’s determination that they were 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.  An established principle for fitness determinations is that they are performance-based; the Board is confronted in this case with evidence that the limitations imposed by the mental health (MH) condition prohibited the performance of the CI’s military duties.  

The permanent S3 profile overwhelmingly included restrictions based upon the CI’s low back condition; however, it also included an assignment limitation of “No assignment to isolated areas where definitive weekly access to psychiatric care (Armed Forces hospital, Armed forces Medical Center) is not available.”  This restriction could impose limitations on his duty assignment and could pose duty limitations as a soldier in relation to worldwide deployments, therefore, possibly rendering him unfit from an MH condition.  The psychiatric consultant recommended the same restriction and also noted under the Current Functional Status category, the impact of the CI’s diagnoses significantly impacted his duty performance.  The commander’s statement repeatedly described and expressed concerns regarding the CI’s mental status and implied his behavior was endangering to self and others.  Board members considered that the C&P exam, although 14 months post-separation and beyond the period of probative value, provided historic context to the CI’s behavior.  The CI reported to the C&P examiner the paranoia he felt while filling out forms.  This likely explains the dermatology request for psychiatric consultation due to “an apparent inability to complete forms with a great deal of anxiety.”  Furthermore, this exam showed that the CI did indeed have ongoing psychiatric symptoms and that the difficulties described in the Army MH consult were not a one-time or short-term occurrence.  These citations are further evidence that his MH condition likely rendered him unfit for continued service.  After due deliberation, the Board agreed that in regards to the functional impairment of the contended MDD condition, evidence existed in favor of its recommendation as an additionally unfitting condition for disability rating.  Disability associated with any psychiatric condition, regardless of the diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130 general rating formula for MH conditions.  The Board agreed that 4.129 did not apply.  The CI had several 50% threshold symptoms that included impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. 

After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of MDD with PTSD favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 9434 and meets the VASRD §4.130 criteria for a 50% rating. 

Neck Pain.  The STR details that the CI complained of neck “stiffness” in August 1999 (three years pre-separation) that was related to his low back problem, but the physical therapist did not document a physical therapy diagnosis.  His primary care physician noted the neck pain and spasm, which he clarified as “… not unusual in cases like this, and the neck pain should reduce as we obtain release of the chronic restrictions in the cervical and cranial base areas.”  There were no further entries in the STR until 19 January 2001 (17 months pre-separation), when the CI fell about 6 feet off a fence onto his head/back.  X-rays showed a burst fracture of the T6 vertebra, and he was treated with analgesics and a halo traction device.  Neck pain was listed as a final diagnosis in the NARSUM, but there was no mention of it in the history or physical.  The neck pain condition was not profiled; it was not implicated in the commander’s statement; and, it was not judged to fail retention standards in the NARSUM or by the MEB.  There was no performance based evidence from the record that the neck pain condition significantly interfered with satisfactory duty performance.  After due deliberation 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 neck pain condition; thus no additional disability rating can be recommended.

Irritable Bowel Syndrome, Migraine Headaches, Mild Reactive Airway Disease, Erectile Dysfunction.  None of these conditions were profiled; they were not none were implicated in the commander’s statement; and none were judged to fail retention standards in the NARSUM or by the MEB.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation 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 any of the contended conditions; thus no additional disability ratings can be recommended.  

BOARD FINDINGS:  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 low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended T6 compression fracture condition, the Board unanimously recommends a disability rating of 10%, coded 5291 IAW VASRD §4.71a.  In the matter of the Major Depressive Disorder with PTSD condition, the Board recommends a disability rating of 50%, coded 9434-9411 IAW VASRD §4.130.  In the matter of the contended neck pain, irritable bowel syndrome, migraine headaches, mild reactive airway disease, and erectile dysfunction conditions, 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 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 his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Low Back Pain, with Degenerative Disc Disease with a Herniated Nucleus Pulposus L5/S1 without Impingement of Neural Components  	5295	10%	
T6 Compression Fracture  	5291	10%	
Major Depressive Disorder with PTSD	9434-9411	50%	
COMBINED	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140522, 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 XXXXXXXXXXXXXXXXXXXX, AR20160004389 (PD201402371)

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 (000 PDBR) pertaining to the individual named in the subject line above to recharacterize the individual's separation as a permanent disability retirement with the
combined disability rating of 60% 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
60% 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