RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02484
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050324

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Health Care Specialist, medically separated for “neck pain secondary to cervical spondylosis, without neurologic abnormality,” “posttraumatic stress disorder (PTSD) and major depressive disorder,” and “right shoulder pain with myofascial component,” rated 10%, 10%, and 0% respectively, with a combined disability rating of 20%.

CI CONTENTION:  “The severity of the PTSD, to include Depression, Anxiety, and Hyper Vigilance renders me non employable…” 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 - 20041208	VARD - 20050903	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Neck Pain	5299-5237	10%	Degenerative Joint Disease, Cervical Spine	5242	10%	20050628	
Posttraumatic Stress Disorder and Major Depressive Disorder	9411	10%	Post-Traumatic Stress Disorder	9411	100%	20050706	
Right Shoulder Pain	5099-5003	0%	Residuals, Rotator Cuff Surgery, Right Shoulder	5299-5203	10%	20050628	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Posttraumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) mental health (MH) narrative summary (NARSUM), the CI reported he had psychological symptoms since his tour of duty to Somalia in 1993, but was too embarrassed to seek help.  He reported his symptoms continued during his deployments to Haiti in 1995 and Afghanistan in 2001.  The CI indicated that he witnessed several deaths and his friend committed suicide during deployment.  The CI noted he responded to the events with irritability and isolation.  He had problems with sleep, anxiety, anger, situational paranoia and depression.  He avoided situations that reminded him of his deployment experiences.  The STR noted that the CI underwent anger management classes in December 2003.  He was treated in the anxiety group (PTSD) for his mood and anxiety symptoms, and participated in individual therapy.  His primary care manager (PCM) prescribed medications to treat his mood and anxiety with minimal benefit.

The MEB NARSUM examination on 8 November 2004, 4 months prior to separation, noted the CI reported his symptoms of PTSD and depression had continued.  He had difficulty falling asleep, irritability and depressed mood.  The mental status examination (MSE) was essentially normal with the exception of irritable mood and affect.  The examiner recorded the diagnoses of PTSD and MDD, and assessed the Global Assessment of Functioning (GAF) score at 55 for moderate symptoms and or impairment.  

At the VA Compensation and Pension (C&P) mental examination in July 2005, performed approximately 4 months after separation, the CI was not employed, but noted he did some woodworking and had hopes of opening a business one day.  He was working out of his garage.  He was married and the couple had 3 children, all living together in their own home.  He denied a legal history.  The examiner noted that the CI had traveled 75 miles to the examination. The MSE documented problems with short-term memory and concentration.  His mood “was distressed; and his affect was markedly constricted.”  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the PTSD condition with MDD at 10%, coded 9411, citing, “Requiring psychotropic medication and outpatient treatment.”  The VA rated the condition of PTSD, coded 9411, at 100%, for “total occupational and social functioning.”  The PEB indicated the MDD as an associated diagnosis related to the primary unfitting PTSD but not separately ratable.  Rating under §4.130 is based on overall occupational and social impairment due to mental health symptoms and not based on any specific mental health diagnosis.  The Board considered whether the provisions of VASRD §4.129 (Mental disorders due to traumatic stress) was applicable.  The PEB acknowledged the CI’s PTSD condition was directly related to combat deployment, and 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 next considered the §4.130 rating at the time of separation.  The NARSUM and C&P examination both recorded absence of suicidal attempts or thoughts, and absence of psychiatric hospitalization or treatment in the emergency room for MH issues.  There were no documented symptoms of panic attacks, problems with memory or concentration, and no recorded impairment in thinking or judgment.  The commander’s statement noted the CI had excellent job performance.  No MH issue was implicated in the commander’s statement; however, the Board acknowledged the statement was prepared 3 months before the NARSUM, and prior to the MH profile.  However, there was no mention of workplace violence or aggression, or difficulties with co-workers.  The Board considered the record in evidence did not support a 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.  The C&P examination was the sole source document available in evidence post constructive TDRL period.  That examination documented the same symptoms recorded in the NARSUM, with the exception of the CI’s report that he had recently woke up choking his wife.”  Although the examiner opined that the CI’s impulse control was “currently impaired,” there was no documented evidence to support that opinion.  He had no legal history, and no report of domestic violence, or violence at the workplace or in the community.  The MSE noted the CI had “struggled” with short-term memory and concentration tasks, reportedly related to PTSD; however, evidence of PTSD or mood symptoms interfering with his occupation was absent, largely due to the fact that he was not employed.  The Board found no evidence in the C&P examination, and none in the STR that would justify a 100% disability rating.

The Board considered the absence of legal history, the absence of inpatient treatment or ER visits, and the report of chronic sleep impairment, depressed mood and irritability.  The 30% description (“occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”) better reflected his condition, since the evidence suggested his condition was not transient, and was not controlled by medication.  After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommends a 50% disability rating at TDRL placement and a permanent 30% disability for the condition of PTSD with MDD.

Neck Pain.  According to the STRs and the MEB NARSUM, the CI’s neck pain began as early as 1993 after falling while performing military duties.  Radiographic studies in October 2002 revealed mild degenerative changes to the cervical spine.  Evaluation by orthopedics in 2002 recommended non-surgical treatment.  An Electrodiagnostic study in April 2003 indicated nerve changes due to an old right shoulder injury, nerve changes in the elbow and wrist, and likely cervical spine nerve root impingement.  Additional similar studies 3 months later (July 2003) were normal.  The CI underwent surgery to relieve right shoulder impingement in April 2004.  Despite conservative treatment, the cervical spine condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  The MEB forwarded “cervical spondylosis” for PEB adjudication (spondylosis is degenerative changes to the spine).  The range of motion (ROM) measurements of the physical therapy (PT) appointment on 4 November 2004, 5 months before separation, documented forward flexion to 55 degrees (normal 45) and pain on motion.  The MEB NARSUM examination later that month on 22 November 2004, which was 3 months before separation,  reported strength and sensation of the upper extremities as intact, and cervical ROM “full” on flexion and extension.

At the VA Compensation and Pension (C&P) Joints examination on 28 June 2005, performed 3 months after separation, the CI reported he could perform activities of daily living, but reported avoiding pushing, pulling, and lifting with his right arm.  The examiner noted mild discomfort on palpation of the cervical spine, and radiologic study of the neck revealed “very early degenerative changes” at one level of that section of the spine.  There was no evidence of deformity, swelling or discoloration.  ROM documented flexion and extension to 45 degrees.  

The Board first considered its rating recommendation for the recommended placement on TDRL, which is the date of separation (in light of the mandatory TDRL period described in the analysis of the PTSD condition above).  The PEB rated the neck pain 10% rating under 5299-5237 code (analogous to cervical spine strain), citing tenderness and painful motion.  The VA assigned a 10% rating, but used the 5242 code (degenerative arthritis of the spine) justified by evidence of discomfort with palpation.  The Board agreed that a 10% rating, but no higher, was justified based upon evidence that varied slightly between the examinations proximate to separation.  Any spasm or guarding that was reported was not severe enough to result in abnormal gait or spinal contour, so the next higher 20% rating was not justified on this basis.  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.

The Board also considered whether additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had symptoms of radiating pain documented in the treatment records, but examinations indicated normal strength, reflexes, and sensation, and any sensation of radicular pain did not affect his job.  Electrodiagnostic studies were equivocal regarding radicular nerve irritation or involvement, and physical exams (NARSUM, and VA C&P) proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  The Board therefore concluded that no additional disability rating for radiculopathy was justified.

Right Shoulder Pain.  According to STR and the MEB NARSUM, the right-hand dominant CI underwent right shoulder surgery in April 2004 to reduce impingement of the acromioclavicular joint and relieve pain.  Despite treatment, the shoulder could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty, so he was referred for MEB.  The MEB forwarded “right shoulder pain with myofascial component” for PEB adjudication.  The PT appointment on 4 November 2004 (4 months prior to separation) recorded flexion to 170 degrees (normal 180) and abduction to 160 degrees (normal 180) with pain limiting motion.  The MEB NARSUM examination later that same month, 22 November 2004, physical examination revealed strength and sensation of both upper extremities to be normal.  The examiner recorded ROM flexion and abduction at 170 degrees.  At the VA C&P examination on 28 June 2005, performed 3 months after separation, the CI reported the ability to perform activities of daily living, but avoided pushing, pulling, and lifting with the right arm.  The physical exam showed pain in the extreme of abduction (raising the arm outward from the side), and pain and spasm were reported by the CI with repetitive motion.  The examiner documented painful motion and ROM of flexion to 170 degrees.  

The Board considered its rating recommendation for the recommended placement on TDRL, which is the date of separation (in light of the mandatory TDRL period described in the analysis of the PTSD condition above) and removal.  The PEB assigned a 0% rating under the 5099-5003 code (analogous to arthritis), using language that indicated reliance upon the US Army Physical Disability Agency Pain Policy (“pain rated as slight and frequent”).  The VA assigned a 10% rating using an analogous 5203 code (clavicle or scapula, impairment of) for decreased range of motion with associated pain.  The Board considered all applicable coding options and noted the condition was not compensable under any code related to limitation of motion, or dislocation, or malunion.  However, Board members agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion).  There was no additional evidence to consider at TDRL removal.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right shoulder condition, coded 5299-5203 at TDRL placement and removal.  

BOARD FINDINGS:  In the matter of the neck pain and IAW VASRD §4.71a, the Board unanimously recommends no change of the rating assigned in the PEB adjudication.  In the matter of the PTSD condition, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DoD directed; and a 30% permanent rating IAW VASRD §4.130.  In the matter of the right shoulder pain, the Board unanimously recommends a disability rating of 10%, coded 5299-5203 IAW VASRD §4.71a at TDRL placement and removal.  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 prior to medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Neck Pain	5299-5237	10%	10%	
Post-Traumatic Stress Disorder	9411	50%	30%	
Right Shoulder Pain	5099-5003	10%	10%	
COMBINED	70%	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140528, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB							
MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXX, AR20160010943 (PD201402484)

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 
70% 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 50%.

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 70% 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 50% 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