RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02397
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060728

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E5, Combat Engineer, medically separated for “low back pain” and “bilateral knee pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%. 

CI CONTENTION:  “Please consider 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 based upon a 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 - 20060629	VARD - 20070419  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain, With Spinal Stenosis, Left L5 Radiculopathy	5238	10%	Degenerative Disc Disease of L5-S1, Lumbar Spine	5299-5243	20%	20061219	
			Radicular Left Leg Pain Associated with DDD of L5-S1	8599-8520	10%	20061213	
Bilateral Knee Pain, Without Neurologic Abnormality	5099-5003	10%	Degenerative Joint Disease and Chondromalacia, Left Knee	5003-5260	10%	20061219	
			Degenerative Joint Disease and Chondromalacia, Right Knee	5003-5260	10%	20061219	
Major Depressive Disorder, with Psychotic Features	EPTS	Post-Traumatic Stress Disorder	9411	30%	20061211	
		Psychotic Disorder	9210	NSC	20061211	
Obstructive Sleep Apnea, Severe	Not Unfitting 	Obstructive Sleep Apnea with Asthma and Bronchitis	6847	50%	20061219	
Hypertension	Not Unfitting 	Hypertension	7101	0%	20061219	
Abnormal EKG	Not Unfitting 	Coronary Artery Disease	7005	NSC	20061219	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONTIIONS:  80%	

ANALYSIS SUMMARY:  
Low Back Pain, with Spinal Stenosis, Left L5 Radiculopathy.  The PEB combined the right and left knee conditions as a single unfitting condition coded analogously to 5003 and rated 10%, with application of the US Army Physical Disability Agency (USAPDA) pain policy and AR 635-40 B24.f.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The Board also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the Disability Evaluation System or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the right and left knee conditions are presented together below, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) condition began in October/November 2004 after a motor vehicle accident (MVA) during deployment.  He reported low back pain (LBP), radiating to the left hip with left lower extremity (LLE) numbness posteriorly to the foot.  Magnetic resonance imaging (MRI) in April and repeated in May 2005 showed congenital spinal stenosis with moderately severe acquired spinal stenosis at lower lumbar levels due to degenerative disc disease (DDD) and spinal arthritis, with neuroforaminal compromise (bony canal through which the spinal nerves exit), bilaterally at L4-L5 and on the left at L5-S1.  Electrodiagnostic studies in May 2005 showed evidence of a chronic left L5 radiculopathy.  At an orthopedic evaluation on 28 October 2005, the CI reported LBP and left leg numbness and tingling to the posterior calf and top of foot (L5 distribution).  The examination request noted the CI was in the process of a MEB for his back and a surgical opinion was requested.  The physical examination noted no tenderness to palpation (TTP) of the low back and negative straight leg raise (SLR) testing, with normal lower extremity (LE) strength and reflexes and “slight subjective” decreased sensation of the top of the foot.  The surgeon noted there was no urgent surgical indication and that comorbidities including mental health issues and obesity would need to be addressed before any elective surgery was considered and physical therapy was recommended.  The MEB forwarded “spinal stenosis with lumbago, left L5 radiculopathy on electrodiagnostic testing, and subjective sensory manifestations” for PEB adjudication.  

The range of motion (ROM) examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

DOS 20060729
Thoracolumbar ROM
(Degrees)	PT ~6 Mos. Pre-Sep	MEB ~6 Mos. Pre-Sep	VA C&P ~5 Mos. Post-Sep	
Flexion (90 Normal)	70 (80% of normal)	20	45	
Combined (240)	170	195	125	
Comment	Painful motion +, no spasm, normal gait 	tenderness	Normal gait, no spasm. Painful motion. No additional loss of motion with rep.	
§4.71a Rating	10%	10%	20%	

At a physical therapy evaluation on 10 January 2006 physical examination noted descriptive thoracolumbar ROM as noted in the chart above.  There was a normal gait and no muscle spasm noted; however, there was painful motion noted.  Flexion and extension were limited by pain, while lateral bending was limited by body habitus.  Lower extremity strength, sensation, and reflexes were normal.  

At the MEB NARSUM examination on 23 January 2006, 6 months prior to separation, the CI reported LBP with LLE radicular symptoms.  Physical examination showed tenderness to palpation (TTP) of the lumbar region with normal strength, reflexes, SLR, and heel and toe walk.  There was “subjective decreased” sensation in the left lateral leg and sole of the foot, without muscle atrophy.  Thoracolumbar ROM was as noted in the chart above.  

At the 19 December 2006 VA Compensation and Pension (C&P) examination, performed 5 months after separation, the CI reported the same symptoms as above.  He reported two episodes of incapacitation in the last year lasting 3 to 4 days each.  The physical examination noted a normal gait.  There was TTP of the lumbar spine, without muscle spasm.  Thoracolumbar ROM was as noted in the chart above.  Painful motion was noted with flexion limited by pain and there was no additional loss of ROM with repetition.  The VA examiner indicated the LBP did not radiate and noted no neurological deficit.  The VA C&P Peripheral Nerves examination on 13 December 2006 showed full strength in all extremities.  The CI could stand on his heels and toes without difficulty.  He guarded his back pain throughout the examination.  There was normal strength, sensation, and reflexes of the LEs without muscle atrophy noted and testing for radiculopathy was negative

The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the MEB NARSUM proximate to separation.  Although at the post-separation VA C&P examination, forward flexion was more limited and met the 20% rating criteria, there was no evidence of limitation of ROM to that degree in the STR or at the time of separation or on a recurrent intermittent basis.  The VA C&P provided no evidence for the worsening of the back condition after separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  At the VA C&P examination the CI reported two episodes of incapacitation of not more than 8 days total duration in the past 12 months, which would not provide a higher rating if alternatively rated according to the VASRD formula based on incapacitating episodes.  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 low back condition.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported LLE pain and numbness at all examinations and was diagnosed with left lumbar radiculopathy confirmed by electrodiagnostic studies.  However, there were no objective sensory or motor deficits of either lower extremity at the MEB NARSUM or VA C&P examinations or at the orthopedic surgical evaluation in October 2005 and there was no urgent surgery indicated per the surgeon.  Radiating pain due to the low back condition is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates)” and there was no evidence of LE weakness or sensory deficit that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  

Bilateral Knee Pain, Without Neurologic Abnormality.  According to STR and the MEB NARSUM, the CI’s bilateral knee condition also began in November 2004 following the MVA noted above.  
The CI was also involved in an earlier MVA in February 2004 and reported right knee pain.  In the emergency room right knee X-rays were normal.  Imaging studies in May 2005 were noted to be for left knee injury.  Radiographs (X-ray) were normal and MRI showed minimal degenerative changes.  An orthopedic evaluation for left knee pain in May 2005 diagnosed osteoarthritis and recommended physical therapy.  Physical therapy evaluations noted bilateral anterior knee pain 

An orthopedic evaluation in October 2005 for right knee pain, noted that the CI reported injuring the right knee in the November 2004 MVA along with his left knee, but the right knee did not start to bother him until recently.  He reported pain under the kneecap that was worse with stairs or prolonged walking or standing.  The examination noted full ROM of the right knee with a positive apprehension test and patellar crepitus.  There was no TTP of the joint lines or effusion and ROM was not painful.  There was no evidence of instability or meniscal pathology.  Right knee X-rays showed a bone spur of the patellar tendon, and were otherwise normal and MRI showed chondromalacia patella and retropatellar bursitis and sprain of the soft tissues of the medial patella.  The CI was diagnosed with patellofemoral syndrome and a MEB was initiated.  The MEB forwarded “bilateral knee pain with right chondromalacia” for PEB adjudication.  

The permanent profile listed “bilateral knee arthritis.”  Profile limitations included inability to move with a fighting load, construct an individual fighting position or perform 3 to 5 second rushes.  Physical training was limited to push-ups and a walk test for APFT.  The commander’s statement implicated bilateral knee pain as impacting the CI’s ability to successfully perform his duties.  The commander noted the CI performed most of his duties sitting due to pain with prolonged standing.  

At the MEB NARSUM examination on 23 January 2006, 6 months prior to separation, the CI reported bilateral knee pain and swelling.  He reported he could perform an alternate physical fitness test, and “could” run, but with significant symptoms.  The physical examination was reported for both knees.  Both knees showed patellar crepitus and tenderness without effusion or instability and normal ROM.  The MEB NARSUM examiner determined the bilateral knee pain failed retention standards.

At the 19 December 2006 VA Compensation and Pension (C&P) examination, performed 5 months after separation, the CI reported chronic bilateral knee pain and swelling, aggravated by activity, especially prolonged standing, walking, squatting, running, or stairs.  The physical examination noted a normal gait and “minimal” swelling bilaterally without evidence of instability.  There were degenerative changes of both knees with “moderate” crepitus in both knees; right knee extension was normal at 0 degrees and flexion was 90 degrees (normal 140) and left knee extension was normal and flexion was 100 degrees.  There was no additional loss of ROM with repetition.  

The Board first considered if both the right and left knees remained reasonably considered separately unfitting when considered apart from the PEB’s combined adjudication.  The bilateral knee condition was permanently profiled and the commander’s statement implicated the bilateral knees as impairing the CI’s duty performance.  The CI sought treatment during active duty for both knees and both knees were imaged.  The MEB NARSUM examiner determined the bilateral knees failed retention standards.  The Board concluded that there was not a preponderance of evidence of the service records that overcame the Board’s presumption that the bundled knee conditions were reasonably considered separately unfitting.  The symptoms and clinical findings for the right and left knees were essentially the same at examinations in record and therefore the Board considered its rating recommendation for the unfitting knee conditions together at the time of separation.  

The PEB rated the bilateral knee condition 10%, coded 5099-5003 (analogous to degenerative arthritis), citing the USAPDA Pain Policy as noted above.  The VA rated each knee 10%, both coded 5003-5260 (degenerative arthritis-limitation of leg flexion).  There was no limitation of flexion or extension of either knee that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  The examinations of the right and left knees proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) or history of surgery to remove a meniscus (5259) to support a rating under the respective codes.  There was no fracture, non-union, or malunion of the femur or tibia of either knee to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  As noted above, there were no distinctions with regards to clinical features or fitness considerations between the right and left knees.  The bilateral diagnosis supported a single 5003-based rating for “2 or more major joints” without compensable limitations or painful motion (as also applied by the VA); thus there is VASRD §4.71a latitude for a bilateral rating.  There was evidence for 10% rating of the right knee for functional loss but the evidence for 10% rating of the left knee was considered insufficient by the Board.  Members agreed that after unbundling the knees, there was no ratings benefit to the CI and that a 10% rating under 5003 was appropriate for the bilateral knee condition.  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 adjudication for the bilateral knee condition.  

Contended PEB Conditions:  Major depressive disorder, with psychotic features.  The PEB determined the major depression disorder (MDD), with psychotic features, coded 9434 (major depressive disorder) was unfitting but existed prior to service (EPTS) based on a history of a prior episodes of psychosis induced by alcohol abuse and illicit drug use prior to entering military service.  The Board found no evidence to indicate this was not correct.  The Board next considered whether or not there was evidence of service aggravation.  A presumption of service aggravation may only be overcome by a preponderance of competent medical evidence and accepted medical principles that the natural progression of a pre-existing condition was clearly unaltered by any consequence of military service.  

The CI was a National Guard, mobilized in September 2003.  A periodic physical in April 2001, the CI reported fair health and no medications.  He reported he had never been treated for mental health (MH) issues and reported no MH symptoms.  The physical examination was documented as completely normal except for being above weight standards.  On pre-deployment health assessments in February 2003, October 2003 and January 2004, the CI reported no health problems and no medications.  He was cleared at each of these evaluations.  At a fitness for duty evaluation on 4 March 2003 the CI was determined to be “fully fit.”  Later that day the CI presented to the police department and was scared because he thought people were trying to kill him, he thought his wife was setting him up to be killed and the police brought him to the hospital.  The CI was admitted as a psychiatric inpatient and tested positive for alcohol and cocaine.  He reported drinking but claimed he had used drugs in the past, but had not in the last 5 years and had just started using again recently.  He reported he was about to deploy in a couple weeks.  He was started on antipsychotic medications with a good response.  He denied delusions or depression and was discharged on a 10-day prescription of antipsychotic medications.  The CI declined to participate in alcohol or substance abuse rehabilitation at the time.  On the day of discharge he was evaluated by a social worker and reported he was there because he was feeling paranoid as noted above.  He denied hallucinations.  He denied any history of depression, violence, or suicidal ideation.  The mental status examination (MSE) was unremarkable.  Following this, the CI was deployed in March 2004 until March 2005 as a combat engineer.  An emergency room visit after return from deployment noted that the CI had an episode of paranoia in August 2004 while deployed associated with alcohol and illicit drug use.  However, he completed the deployment.  

An Non-Commission Officer Evaluation Report (NCOER) from December 2003 to November 2004 indicated the CI‘s performance was successful and superior.  On a Post-Deployment Health Assessment (PDHA) on 6 February 2005, the CI reported that he had seen enemy and coalition wounded, killed, or dead, that he had been in direct combat and discharged a weapon, that he felt in danger of being killed and was interested in receiving mental health help.  He reported some decreased interest and pleasure in activities and some thoughts that he would be better off dead or of hurting himself.  He reported nightmares related to deployment experiences and avoidance of thoughts or situations which would remind him of those experiences.  He reported he was constantly on guard and felt numb and detached from others.  He expressed concerns that he might lose control or hurt a friend or family member.  On a second PDHA in late March 2005, the CI reported he had seen coalition wounded, killed, or dead, felt in danger of being killed, but denied he was involved in combat and discharged a weapon.  The CI indicated more depression symptoms but denied any thoughts of hurting himself and less post-traumatic stress symptoms, but still reported feeling numb/detached and was concerned with conflicts with friends and family, but not that he would lose control or hurt them.  

A psychiatric evaluation for the MEB on 28 September 2005 noted the CI was involved in a MEB for musculoskeletal injuries.  The CI reported mild anxiety and loss of pleasure and interest.  He also reported sleep problems and increased appetite.  He denied hyperarousal, avoidant behaviors, or suicidal ideation.  He reported “mild” paranoia that people could read his mind like he had a “neon sign above his head.”  He denied delusions of mind control or hallucinations, but thought he could see ghosts.  The MSE noted a slow speech rate.  The CI’s appearance was tired and psychomotor retardation was noted.  His mood was dysthymic (sad) with congruent affect.  He evidenced paranoid delusions as described.  There was no evidence of hallucinations or suicidal ideation/homicidal ideation (SI/HI).  The examiner indicated thought processes were intact, but insight was impaired.  The diagnoses were major depressive disorder (MDD) and alcohol and cocaine abuse in remission.  He was started on an antidepressant and determined to be fit for duty, with re-evaluation of “fit for duty” if he did not respond to the medication.  In November 2005, the CI was evaluated in the emergency room again with paranoid delusions and reported use of crack cocaine and alcohol the day before.  He was admitted as a psychiatric inpatient for alcohol and drug induced psychotic disorder.  A MH visit on 14 December 2005 noted that after his three day hospitalization, the CI went AWOL to manage family problems.  He denied alcohol or drug use during the time, but reported paranoid delusions and non-command auditory hallucinations.  He reported depression symptoms, but less paranoia since returning.  The MSE noted a sad mood and blunted affect, impaired insight, paranoid delusions.  There was no evidence of hallucinations or SI/HI.  The diagnoses were MDD, single episode, and psychosis.  Antidepressant and antipsychotic medications were started.  A psychiatric memorandum to the PEB dated 23 January 2006 indicated that the CI was referred to behavioral health and the Army Substance Abuse Program (ASAP) in May 2005 and was seen from July 2005 to January 2006 for depression and paranoia, with minimal anxiety related to deployment experiences.  The CI had reported that the paranoid thoughts had been present for several years.  The memo summarized the history as noted above.  The psychiatrist indicated that ASAP had closely followed the CI and noted only one alcohol/drug relapse in November 2005, but he had otherwise abstained from substance use.  The CI was noted to be on antidepressant and antipsychotic medications.  He reported his mood had improved but he continued to think people could read his mind.  The psychiatrist summarized as excerpted below.   

The service member has had long-term depressive symptoms and paranoid delusions that have not been consistently related to his substance use.  His periodic alcohol and cocaine use have, however, exacerbated his primary psychiatric disorder.  

The Axis I diagnoses were MDD, recurrent, severe, with psychotic features – EPTS; Cocaine dependence, alcohol dependence.  The global assessment of functioning assessment was 40, which reflected some impairment in reality testing on this scale.  The MEB psychiatrist indicated the CI was unfit for continued military service due to his MH condition  

The commander’s statement dated 13 March 2006 noted the CI appeared disheveled and had some discipline issues.  The commander commented that the CI often seemed distant during briefings and counseling and worried about future events rather than dealing with issues at hand.  The commander said, “His normal military duties would be compromised with his many physical, mental and medication issues.”  

The CI had been exposed to traumatic events in the service that the Board majority judged more likely than not contributed to his EPTS MH condition worsening following deployment.  There was evidence in record that the CI had a long history of paranoid ideation aggravated by drug and alcohol use.  However, following deployment the CI reported ongoing depression symptoms and received a diagnosis of MDD.  Prior to his last period of active duty there was no documentation of an Axis I mental health diagnosis, the CI was not on regular psychotropic mediation, and was not involved in ongoing MH care, which he was at the time of separation.  The Board majority concluded from the evidence that the MH condition had been SA as there was no medical certainty that the MH disorder would have followed the same course absent the CI’s military experiences; that is to say there was no way to conclude “that pre-existing condition was clearly unaltered by any consequence of military service.”  The MH MEB psychiatrist noted that the CI’s use of drugs and alcohol exacerbated his underlying psychiatric disorder, but also noted that from July 2005 to January 2006 the CI was being closely followed by ASAP and had only one relapse in November 2005, and his MH symptoms were not solely related to his substance use.  Therefore, the Board majority considered a rating for the MH condition IAW VASRD 4.130

At the 11 December 2006 VA C&P Mental Disorders examination, performed 4 months after separation, the CI reported the same long-standing paranoid delusions.  He reported nightmares of an MVA while deployed.  He reported intrusive thoughts of a squad member who was killed and hypervigilance.  He was not employed and said “I don’t feel like I can do my job.”  He denied drug or alcohol use.  The MSE noted a depressed mood and affect and the CI made little eye contact.  Speech and thought processes were intact and he was fully oriented.  He denied hallucinations or SI/ HI.  His judgment was intact but his insight was deemed limited.  The Axis I diagnoses were post-traumatic stress disorder (PTSD) and psychotic disorder and the GAF assignment was 42, in the serious impairment range on this scale.  

The Board majority considered a rating for the MH condition IAW VASRD §4.130 at separation.  The PEB adjudicated the condition as unfitting but not service aggravated and did not provide a rating based on EPTS.  The VA rated the MH condition 30%, coded 9411 (PTSD) based on the C&P examination 4 months after separation and did not service connect the second MH condition of “psychotic disorder” coded 9210.  

The Board first considered if the application of §4.129 was applicable in this case.  However, there was evidence that the MH condition existed prior to service and although aggravated by military service, did not develop during military service due to a highly stressful event as specified by §4.129  Therefore, the Board majority agreed §4.129 was not applicable in this case.  At the time of mobilization to active duty there was no evidence that the CI’s MH condition impaired the performance of his military duties and therefore the Board majority recommends an undetermined EPTS factor.  At separation there were persistent paranoid thoughts and depression symptoms which impacted the CI’s daily functioning based on the commander’s statement, despite treatment with psychotropic medication and abstinence from drugs and alcohol.  At the C&P examination the CI reported more symptoms related to PTSD than he had prior to separation and the MH examiner diagnosed PTSD with depression symptoms and a psychotic disorder, but no diagnosis of PTSD was given during active duty.  The Board majority agreed the evidence at the time of separation supported the 30% disability rating, specified as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily) rather than the 10% rating, specified as decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.  After due deliberation, considering all of the evidence the Board concluded the MDD, with psychotic features condition was permanently aggravated by service and recommends a disability rating of 30%, coded 9434.  

Contended PEB Conditions:  Obstructive sleep apnea, severe, hypertension, abnormal EKG [electrocardiogram].  The Board’s main charge is to assess the fairness of the PEB’s determination that these contended conditions were not unfitting.  

Obstructive Sleep Apnea (OSA):  The CI was diagnosed with severe OSA by polysomnogram in February 2004, but tolerated CPAP or BiPAP poorly and was non-compliant with treatment at first.  Following his diagnosis the CI was deployed from March 2004 to March 2005 as a combat engineer.  It is unclear whether the CI brought a CPAP machine with him or just did without, but he successfully completed the deployment as evidence by the NCOER report cited above.  The OSA condition was permanently profiled and listed “requires electricity for CPAP.”   The commander’s statement dated 13 March 2006 noted the CI was tired and sleepy most of the time and appeared disheveled.  However, at the time the CI was in medical hold and was on multiple medications, including psychotropic medications and intermittent narcotic pain medication.  After deliberations, the Board concluded that the CI’s successful deployment after his OSA diagnosis supports that the condition was not necessarily disqualifying and there was not a preponderance of evidence to overcome the PEB’s fitness determination.  

Hypertension and Abnormal EKG:  None of the conditions were profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  

After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended OSA, hypertension, and abnormal EKG conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the major depressive disorder with psychotic features condition, the Board majority concluded there was permanent service aggravation and recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended obstructive sleep apnea, hypertension, and abnormal EKG 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	
Low Back Pain, with Spinal Stenosis	5238	10%	
Bilateral Knee Pain	5099-5003	10%	
Major Depressive Disorder With Psychotic Features	9434	30%	
COMBINED 	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140523, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

MINORITY OPINION:  The minority dissent with the majority recommendation is based on the totality of the evidence from the STR and the marginally probative post-separation VA C&P examination as accurately portrayed in the above proceedings.  Based on a totality of this evidence, the minority member opines that the PEB correctly adjudicated the “major depressive disorder” as existing prior to service (EPTS) and not permanently service aggravated.  

The CI had a long-standing history of paranoid ideation throughout adulthood, with a history of being homeless because of alcohol and cocaine abuse.  Inpatient rehabilitation in 1999 did not result in lasting recovery.  There was clear evidence that he abused cocaine before being activated for active duty in March 2004, during his mid tour leave period while deployed to Iraq from March 2004 through March 2005, and after his deployment in May and again in November of 2005.

The CI’s Non-Commission Officer Evaluation Report encompassing the Iraq deployment recorded successful overall performance and superior overall potential.  He was not profiled for depression until the MEB proceedings. Although MDD was not diagnosed until after deployment, the CI’s depressive symptoms had been present long-term (as confirmed by the MEB psychiatrist) and was not logically a result of deployment or other military stressors.  The STR very clearly established a cycle of MH symptoms directly linked to alcohol and drug relapses.  After re-deployment, the initial presentation to Behavioral Health for was for depressive symptoms related to substance abuse, reporting “minimal anxiety related to his recent deployment experiences” per the MEB psychiatrist.  The CI responded well to treatment until an emergency room presentation for a crisis related to cocaine relapse that was over 8 months after re-deployment.

The evidence does not show either a cause-and-effect relationship or permanent aggravation of the MDD with service stressors.  The deployment (as well as military separation and life stressors after deployment) may have temporarily exacerbated the psychiatric symptoms, but did not alter the natural course.  The triggering and permanently aggravating factor lay squarely with the EPTS substance abuse.  It is the minority opinion that the evidence supports that conclusion to a degree that overcomes the presumption of aggravation standard stated in these proceedings. 

Consistent with the DoDI 6040.44 standard of recommendations that are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that the CI’s “major depressive disorder with psychotic features” remain as a EPTS condition without permanent service aggravation as properly adjudicated by the PEB. 

SAMR-RB

MEMORANDUM FOR Commander

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20160016560, PD201402397

1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I reject the Board's recommendation and accept the Board's minority opinion as accurate that the applicant's final Physical Evaluation Board disability rating remains unchanged. There is insufficient justification to support the Board's recommendation in accordance with Army and Department of Defense regulations.

2. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

Enclosures
CF:
( ) DoD PDBR