RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03085
BRANCH OF SERVICE:  Coast Guard	BOARD DATE:  20150120
SEPARATION DATE:  20090901

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Boatswain's Mate) medically separated for mental health (MH) and spine conditions.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  Depression; low back pain (LBP) and neck pain were forwarded to the Physical Evaluation Board (PEB).  No other condition was submitted by the MEB.  The Informal PEB adjudicated the three MEB conditions, but could not reach a unanimous decision; therefore, the case was forwarded to the Formal PEB (FPEB) for consideration.  The FPEB adjudicated general anxiety disorder; intervertebral disc syndrome, spine; and intervertebral disc syndrome, cervical as unfitting, rated 10%, 0% and 0% respectfully, with application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”

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:

Service FPEB – Dated 200801030	VA* - (6.8 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
General Anxiety Disorder	9400	10%	Depression	9434	NSC	20100324	
IVDS, Spine	5243	0%	Back DDD	5242	NSC	20100324	
IVDS, Cervical	5243	0%	No VA Placement	
Other x 0 (Not in Scope)	Other x 3	
Combined:  10%	Combined:  NSC%	
*Derived from VA Rating Decision (VARD) dated 20100729 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

General Anxiety Disorder. The CI was first evaluated for a MH condition on 3 March 2003, depressed mood, for the past 3 months.  He indicated that he had been depressed after he had been beaten at age 17.  He reported that his symptoms began as he began to recall images from childhood sexual abuse and that he disliked his current job.  He endorsed a family history of substance abuse and MH disease.  He was diagnosed with a major depressive disorder (MDD), but found fit for full duty.  He was seen by a psychiatrist 4 days later and started on an anti-depressant and psychotherapy recommended.  The CI was next seen on 22 September 2003 after he had broken up with his girlfriend.  He had recurrent symptoms and medications were reinitiated.  In March 2004, he was late for work.  He was evaluated for substance abuse, but did not meet the criteria for either alcohol abuse or dependence.  He continued to be seen on a regular basis and carried the diagnoses of anxiety, depression and posttraumatic stress disorder (PTSD).  He underwent another evaluation on 23 September 2004 for a clearance for a Top Secret clearance.  His symptoms were not interfering with his duties.  However, his judgment and integrity were thought to be questionable.  He had engaged in an inappropriate relationship with another Coast Guard member and received non-judicial punishment with reduction of rank and forfeiture of pay.  The CI also reported an extensive suspension in high school after carrying a stolen hand gun.  He was considered fit for duty.

Although the CI continued to report symptoms, his recorded visits for MH declined and he was seen sporadically over the next 3 years until 29 January 2008 when he was evaluated in psychiatry.  He was diagnosed with an anxiety disorder NOS (not otherwise specified) and again begun on psychotropic medications.  The prior diagnoses of MDD and PTSD were not supported.  He was found fit for full duty.  At a follow-up appointment on 21 February 2008, the CI reported reduced symptoms with medications and psychotherapy.  He was found to have mild sleep apnea (obstructive sleep apnea [OSA]) on 3 April 2008 after he was evaluated for complaints of insomnia.  At the MEB narrative summary (NARSUM) examination dated 30 April 2008, approximately 16 months prior to separation, the CI reported that he had not had much change in his symptoms with medications.  On examination, he appeared anxious, but otherwise it was unremarkable.  The examiner noted that he had been on LIMDU for his back and neck and also had anxiety.  On 21 May 2008, the CI screened positive for alcohol abuse and was entered into outpatient treatment.  He was also directed to abstain from alcohol consumption.  A 3 June 2008 command endorsement for the MEB noted that the CI worked Monday through Friday from 0700-1600 in administrative duties.  It was noted that his normal duties required physical effort.

A psychology note dated 17 June 2008 noted that the CI had first been evaluated by this psychologist in August 2007 for substance abuse.  The examiner recorded that the CI been under stress from his back pain and secondary career considerations.  The CI denied a family history of substance abuse (inconsistent with his previous report, above), but had been self-medicating his insomnia.  He reported improved sleep with treatment of the OSA.  However, he faced non-judicial punishment for coming to work with alcohol on his breath.  Treatment had been focused on his depression and anxiety about the termination of his Coast Guard career.  A supervisor noted that the CI was limited at work primarily by his back in the 22 August 2008 statement, but was able to accomplish administrative tasks including job site inspections.

At the VA Compensation and Pension (C&P) examination dated 24 March 2010, approximately 7 months after separation, the CI reported that he had been mentally well until 2003 when, while serving on a ship, he found out that his fiancé was “cheating” on him and everyone on his ship became aware of this.  He subsequently developed depressive symptoms which included fleeting suicidal thoughts.  A second episode was in 2007 when he felt that his work contributions were marginalized.  This was coincident with the development of back pain.  At the time of the C&P evaluation his symptoms were complicated by his occupational situation.  He had invested in a landscaping business expecting to be separated in 2008.  However, he was separated in 2009; this, coupled with the current economic climate had created financial difficulties for him.  He noted that he had not received medication or therapy since 2004.  The examiner did not have MH records available for review.  On examination, the CI was depressed and anxious, but the mental status examination was otherwise unremarkable.  He was diagnosed with a recurrent MDD which was secondary to two discrete episodes on (active duty) which were described above (relationship and work environment).  He was assigned a Global Assessment of Function of 55, indicative of moderate symptoms or impairment.  The Board noted that the history provided to the examiner is not consistent with the records in evidence.  The 17 October 2013 MH C&P also noted that he had begun MH treatment in 2004.  In addition, the CI reported being charged with theft at age 14; the charges were later expunged/dismissed.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the CI at 10% for generalized anxiety disorder, controlled by continuous medications, coded 9400.  The VA initially determined that the MH condition, depression, coded 9343, was not service-connected as there were not service records available for review to show a MH condition while in service.  Subsequently, the depression was rated at 10%, effective the DOS, after receipt of the service treatment records.  The Board considered the evidence.  The CI was functioning in an administrative capacity during the MEB process and functioning well in what was apparently a civilian job.  The NARSUM noted that the CI was on medications for anxiety, but noted no duty limitations from it.  Following separation, the CI was able to run his own business despite the stress from financial difficulties.  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 MH condition.

Intervertebral Disc Syndrome, Spine. On 23 July 2007, the CI reported the onset of LBP after a long car ride.  He was treated with medications and released from duty for 2 days.  Two days later, he was doing better and had a normal gait.  However, 2 days after that, he reported persistent pain.  On examination, he was tender to touch over the paraspinal muscles, but the examination was otherwise unremarkable including his gait.  He was given three more days off; at follow-up, he reported continued pain and was referred to physical therapy (PT) and continued on limited duty.  At the initial PT appointment on 1 August 2007, he had limited and painful motion.  This was aggravated by yard work.  X-rays on 18 September 2007 showed a transitional L5 vertebral body (a congenital abnormality associated with LBP).  He was evaluated by orthopedics.  Spasm was absent and range-of-motion (ROM) normal other than flexion which was apparently absent.  The neurological examination was normal.  A magnetic resonance imaging (MRI) on 27 October 2007 showed a disc protrusion impinging upon the S1 nerve roots bilaterally.

At a PT evaluation on 8 April 2008 it was noted that he had started a lawn care business.  On 23 April 2008 approximately 17 months prior to separation, flight medicine ROM testing showed a reduction in flexion and extension with a normal gait.  At the MEB NARSUM examination on 30 April 2008, the CI reported pain since July 2007.  The neurological examination was normal.  A 28 May 2008 PT evaluation documented that the CI rushed to complete his exercises (for his shoulder) without signs of distress despite complaints of pain.  It was noted that he continued to operate his lawn care business.  On 12 August 2008 in PT, it was recorded that, in the previous 7 weeks, his attendance was inconsistent and that he had cancelled ten appointments and also “no showed” four times.  He was suspected of malingering as 5/5 signs of non-organic pain were present.  A week later he was seen in flight medicine with a complaint of “new pain” for which he requested narcotics.  On examination, he was in no distress and walked without apparent difficulty.  A note from his supervisor dated 22 August 2008 recorded that he could no longer operate machinery such as tractors, mowers, and trimmers.
At the VA C&P examination dated 24 March 2010 approximately 7 months prior to separation, the CI reported LBP which radiated from his back to his left ankle.  He was limited to walking 1000 yards.  He denied incapacitation.  He was able to accomplish gardening activities and push a lawnmower.  He stated that he had not been employed since September 2009; however, the MH C&P the same day indicated that his current employment was his lawn care business.  On examination, his posture and gait were normal without use of an assistive device.  There was no spasm, tenderness, guarding of movement, abnormal musculature.  Provocative testing for nerve root irritation was negative.  DeLuca criteria were negative.  The neurological examination was normal other than a loss of sensation over the left shin secondary to a pre-service injury.  No signs of intervertebral disc syndrome nor were there signs of non-organic pain.

The goniometric 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)	Flight Medicine
~17 Mos Pre-Sep	VA C&P
~7 Mo. Post-Sep	
Flexion (90 Normal)	75	40	
Combined (240)	210	125	
Comment	Normal gait	Normal gait and neurological examination; DeLuca negative	
§4.71a Rating	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 0%, coded 5243 (intervertebral disc syndrome), noting that the CI had contributed to his non-recovery.  The CI did not refute the PEB adjudication.  The VA initially determined the back to be not service-connected as well, but subsequently rated the back at 20% based on the C&P cited above, coding the back 5242 (degenerative arthritis of the spine).  The Board noted that the flexion on the C&P examination was limited to 40 degrees.  However, the CI had no spasm, tenderness, guarding of movement, or abnormal gait.  He reported that he could push a lawn mower and do gardening.  These findings are considered inconsistent with limitation of flexion to 40 degrees.  The Board also noted the previous concern of a civilian physical therapist that malingering might be an issue.  The Board therefore also considered the rehabilitation ROM values.  Even though these were more remote from separation, the values measured were more consistent with the level of function reported both prior to and following separation.  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 back condition.

Intervertebral Disc Syndrome, Cervical.  The CI was first evaluated for neck pain on 11 June 2007 after he dove into water and hit his head on the bottom.  He had no loss of consciousness or sequelae other than headache.  His examination and CT scan were normal.  His pain persisted, but was intermittent.  He was evaluated in orthopedics on 18 September 2007 and reported that the pain was persistent despite PT and medications including narcotics.  On examination, there was no list, spasm, or deformity.  The ROM was reduced for flexion, but normal in other planes.  The neurological examination was normal.  On 27 October 2007, MRI revealed multi-level DDD and degenerative joint disease (DJD).  X-rays 4 days later also showed possible DJD at C4-5 and possible loss of normal curvature (an indication of spasm).  The NARSUM did not detail the current status of the CI.  The 28 May 2008 PT examination noted inconsistencies in his measurements and that despite the subjective complaints of pain, he “rushed to complete the exercise program without any verbal or physical signs of distress.”  An 11 July 2008 primary care clinician noted that the CI had a supple neck (implying normal or near normal motion).  The CI was seen for a viral syndrome and the neck evaluated to check for signs of meningitis.  As already noted, the 12 August 2008 PT note documented that malingering was suspected.  a week later, he presented with a request for narcotics for his pain as noted above.  His neck was supple at this appointment.

At the VA C&P examination approximately 7 months prior to separation, no specific history for the neck condition was recorded.  On examination, his neck was noted to be supple with a normal posture and gait.  Motion was not painful, nor was spasm, guarding, tenderness, or atrophy present.  The ROM was normal and did not decrease with repetition.  

The goniometric 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.

Cervical ROM
(Degrees)	Rehab
~17 Mos Pre-Sep	Rehab
~17 Mo. Pre-Sep	Rehab
~16 Mo. Pre-Sep	VA C&P
~7 Mo. Post-Sep	
Flex (45 Normal)	25	30	35	45	
Combined (340)	150	225	195	340	
Comment	It is not clear if the flexion is 25 or 22 degrees from the note	Painful motion	Pain with measurements, but none evidenced in therapy	Painful motion absent	
§4.71a Rating	20%	20%	10%	0% (No VA claim)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition at 0% and coded it 5243 citing poor compliance.  The VA did not rate the neck as it was not claimed by the CI.  The Board considered the evidence.  The examinations which were most proximate to separation while on active duty showed a supple neck.  No visits for the neck pain were in evidence in the year prior to separation.  At the C&P examination, the neck was normal to examination.  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 neck condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  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 anxiety condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the back condition, the Board unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  In the matter of the neck condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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, effective as of the date of his prior medical separation.

UNFITTING CONDITION	VASRD CODE	RATING	
Generalized Anxiety Disorder	9400	10%	
Intervertebral Disc Syndrome (Lumbar) Spine	5243	10%	
Intervertebral Disc Syndrome Cervical (Spine) 	5243	0%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140423, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	
Commandant
United States Coast Guard	Mail Stop 7907
2703 Martin Luther King Jr. Ave SE
Washington, DC 20593-7907
Staff Symbol: CG-1
Phone: (202) 475-5000

								   XXXX

Dear XXXXXXXXXX
I am the Designated Decision Authority for the Coast Guard on applications submitted to the Department of Defense Physical Disability Board of Review (PDBR).  Under the authority of Title 10, United States Code, section 1554a, I accept the PDBR’s recommendation in your case (Case Number PD-2014-02379 [s/b PD-2014-03085]) and hereby modify the disability rating previously assigned to reflect a rating of 20% and no re-characterization of your separation.  This decision will be effective as of the date of your prior medical separation.  Please allow up to ninety (90) days for the corrections to be made. 

Please note, if you received a lump-sum or other payment of back pay and allowances at separation, your disability retired pay may be reduced to take into account receipt of such lump-sum or other payment.  

Enclosed for your information are a copy of the PDBR’s recommendation and a copy of the record of proceedings. 

A copy of this decision has also been provided to Coast Guard Enlisted Personnel Management Branch, the PDBR, and the Department of Veterans Affairs. 

If you have any further questions, please contact the Coast Guard Personnel Service Center at (703) 872-6628. 
	Sincerely,

2 Enclosures		
	
Copy:	CG Personnel Service Center (EPM-1)
DoD Physical Disability Board of Review
Department of Veterans Affairs