RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03203
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20091014

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Metal Worker, medically separated for “lumbago intervertebral disc syndrome” and “major depressive disorder,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI contends all conditions in his application.  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 - 20090617	VARD – 20090728/20110526	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Intervertebral Disc Syndrome…	5243	10%	Osteoporosis, Thoracolumbar Spine/Intervertebral Disc
Syndrome, Thoracolumbar Spine, with Degenerative
Arthritic Changes	5242-5243	20%*	20090728	
Major Depressive Disorder…	9434	10%	PTSD	9411	70%**	20110315/STR	
Cognitive Disorder 	Not Unfitting					
Mild Hearing Loss	Not Unfitting	Bilateral Hearing Loss	6100	50%	20090801	
		Tinnitus	6260	10%	20090801	
Intermittent Left Elbow Pain 	Not Unfitting	Left Elbow (Dominant)…	5206	10%***	20110209	
Intermittent Subjective Paresthesia of the Right Leg	Not Unfitting	Radiculopathy, Right Lower Extremity	8520	10%****	20090728	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%/100%	
*Thoracolumbar Spine/Intervertebral Syndrome increased to 40% on 20110526 VARD from day after separation.   
**Major Depressive Disorder awarded and rated, 70% on 20110526 VARD from day after separation.   
*** Left Elbow (Dominant) awarded and rated 10% on 20110526 VARD from day after separation.   
****Right Leg increased to 20% on 20110526 VARD from day after separation.   
ANALYSIS SUMMARY:  

Lumbar Intervertebral Disc Syndrome and Intermittent Subjective Paresthesia of the Right Leg.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain condition began while in Iraq in 2005 after lifting heavy equipment.  Radiographic evaluation (X-rays) in February 2008 reportedly documented degeneration (spondylosis) at the L4- L5 vertebral level.  Further investigations (MRI) in July 2008 documented disc bulging of L1-L4 levels, bone spur (osteophyte) at L4-L5, and herniated disc at L5-S1 causing pressure on the right S1 nerve root.  Electrophysiological studies reportedly documented no evidence of radiculopathy.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “lumbago” for PEB adjudication.  

At the MEB examination on 27 August 2008 (14 months pre-separation), the CI reported chronic pain, wear of back support in order to sleep, and right lower extremity paresthesias.  The physical examination showed tenderness without spasm or evidence of nerve irritation.  Flexion was to 65 degrees (normal 90), extension to 25 degrees (normal 30), with normal lateral flexion, and rotation bilaterally.  

The MEB NARSUM examination was performed on 2 February 2009, 8 months pre-separation.  The CI reported daily pain with monthly flare ups precipitated by lifting, carrying, prolonged sitting or standing, that lasted up to 1 hour.  The physical examination showed a normal spinal contour, with tenderness of the right paraspinal muscles with no muscle spasm, and a normal gait.  There was no evidence of nerve irritation with normal sensation and strength throughout.  Thoracolumbar flexion was to 65 degrees, limited by pain, without further decrements after repetition.   

At the VA Compensation and Pension (C&P) examination dated 28 July 2009 (2 months pre-separation), the CI reported constant pain radiating to the right leg, exacerbated by physical activity.  He reported flare ups that resulted in limited range of motion and bilateral leg weakness and denied falls or incapacitating episodes.  The physical examination showed vertebral tenderness, and an abnormal gait attributed to spasm and guarding.  Nerve tension testing was positive on the right.  Flexion was to 45 degrees (normal 90) with pain after repetition.  Extension was to 15 degrees, lateral flexion was to 15 degrees bilaterally, with right rotation to 15 degrees and left rotation to 20 degrees (all normal at 30).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated 10% for the “lumbar intervertebral disc syndrome” coded 5243 (intervertebral disc syndrome), citing normal strength, reflexes and gait with limited flexion to 65 degrees.  The VA rated 20% for the “osteoporosis, thoracolumbar spine/intervertebral disc syndrome …” analogously coded 5242-5243 (degenerative arthritis of the spine; intervertebral disc syndrome), citing painful motion, flexion to 45 degrees, and radiographic evidence of degenerative changes.  The VA additionally rated 10% for a “radiculopathy, right lower extremity” coded 8520 (sciatic nerve, paralysis of, mild), based on the July 2009 pre-separation VA examination and citing findings of sensory abnormalities.  

The Board considered the evidence for a rating higher than 10% and deliberated the probative value of each.  All examinations documented repetitive goniometric measurements.  The NARSUM and MEB examination both documented flexion of 65 degrees that would support a 10% rating at separation.  However, it was clear that the NARSUM measurements were obtained in February 2009 and duplicated in August 2008 by the same examiner for the MEB examination.  The pre-separation VA C&P examination was most proximate to separation and documented independent measurements that supported a 20% rating.  Therefore the Board placed greater probative value on the VA examination.  There was no documentation of incapacitating episodes requiring bed rest prescribed by a physician.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 20% rating coded 5237 (lumbosacral strain) for the for the low back pain condition.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had radiographic evidence of a herniated disc and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and the sensory changes did not affect his job.  Electrophysiological studies did not provide evidence of radicular involvement, and physical examinations proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain and paresthesias from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis, for the contended intermittent subjective paresthesia of the right leg condition.  

Major Depressive Disorder (MDD).  According to the STR and the MEB NARSUM, the CI experienced a mortar attack during his deployment in 2003-2005, with subsequent loss of consciousness.  On a Post-deployment Health Assessment (PDHA) survey in November 2005, the CI reported seeing wounded enemies and civilians; and having nightmares, feelings of detachment and avoidance; and feeling “on guard,” and easily startled.   On another PDHA survey in August 2006, the CI reported still being married and having improved general health.  He denied being injured while deployed and denied any difficulties at all with work, taking care of things at home, or getting along with other people.  On a PDHA survey from April 2007, the CI reported not having sought counseling or care for mental health concerns.  There were no STR entries for mental health issues or treatment until 2008.  On the PDHA survey from February 2008, the CI denied having nightmares; being “on guard,” watchful, or easily startled; or having avoidance behaviors or detachment issues.  He also denied serious conflicts with the spouse, family members, or close friends; denied seeking counseling or care for mental health issues; and denied exposure to blasts, IED explosions, car bombs, or other combat events causing head trauma.  His only concern was worsening low back pain.  At that time, he was found to have adjustment issues with insomnia, nightmares, and elevated anxiety, however he denied emotional distress and deferred mental health services.  He was assigned to the warrior transition unit (WTU) for further evaluation of his back condition.  A TBI screening in March 2008 was negative.  

During a visit for neurocognitive testing (for attention, memory, and thinking ability) in October 2008 (12 months pre-separation), the CI was described as neat, well groomed, cooperative, cheerful and confident.  He demonstrated appropriate affect with coherent communication, adequate comprehension, and organized thinking.  Testing indicated thoughts of sadness, worthlessness, hopelessness, personal failure and anhedonia.  He was also thought to have maladaptive methods of dealing with anxiety and fear, with significant suspiciousness and hostility of others.  The examiner diagnosed MDD and cognitive disorder (see contended conditions).  The GAF [Global Assessment of Functioning] score was 65 (mild symptoms, generally well-functioning).  Biofeedback and individual therapy were begun in November 2008 (11 months pre-separation).  The CI reported lack of maximal benefit after attending a few sessions.  A psychiatric evaluation did not support the presence of a medically disqualifying condition.  The CI was assigned to the WTU as a duty driver, and by December 2008, had become increasingly irritable and frustrated, developing anxiety and depressed mood.  
During an evaluation by psychiatry in January 2009 (9 months pre-separation), the CI reported insomnia, irritability, depression, anxiety, lack of interest, poor energy, decreased libido, and difficulty concentrating.  He was diagnosed with MDD and medications were prescribed.  During the next few months of therapy, there was notable improvement in mood and anxiety.  Despite medications, the insomnia, decreased libido, and anhedonia continued.  There were no inpatient hospitalizations and no concerns for self-harm or danger to others.  

The psychiatric NARSUM was dated 13 March 2009 (7 months pre-separation).  The examiner documented a well-groomed and cooperative CI, with mild agitation, frustrated mood, and a defensive and guarded affect.  The mental status examination was “unremarkable,” with denial of suicidal or homicidal thoughts, delusions, obsessions or hallucinations.  Judgement and insight were “good,” and impulse control was intact.  He only had limited exposure to biofeedback and other anxiety therapies.  He continued to have symptoms of depression and irritability, impaired concentration and distractibility, low energy and motivation, lack of interest, insomnia, and low self-esteem.  He denied use of drugs and alcohol.  The examiner diagnosed MDD, “moderate,” with moderate degree of impairment for both military duty and social/occupational adaptability.  The GAF score was not specifically addressed.  

The commander’s statement, dated 20 March 2009, specified “no difficulties” regarding on time attendance, performance, and work relationships; and that he made reasonable decisions, and performed tasks and duties to standard.  However, the commander specifically noted that the CI’s “physical and mental condition [would] not allow him to do MOS,” [sic] resulting in removal from driving duties.  

The VA C&P examination dated on 3 November 2009 (1 month after separation) did not address any MH concerns or diagnoses.  At the VA C&P examination dated on 15 March 2011 (17 months after separation), the CI reported hypervigilance, irritability, sadness, crying spells, isolation and distancing himself from family relations, sleeping difficulties, flashback and nightmares, and hospitalization in October 2010.  He denied hallucinations, panic attacks, homicidal or suicidal thoughts, and no episodes of violence or loss of impulse control.  He was attending group and individual psychotherapy and his medication list included benzodiazepines (for anxiety and panic disorders; alprazolam), an antipsychotic (aripiprazole); an antidepressants (duloxetine); a mood stabilizer (divalproex); and a sedative/hypnotic for insomnia (zolpidem).  He described his therapies as being “good” and “somewhat effective.”  The mental status examination showed appropriate grooming with a constricted affect, mildly anxious mood, impaired recent memory, with a paucity of ideas and preoccupation with 1-2 topics.  His symptoms had a “moderate” impact on the grooming activities of daily living (ADLs), and prevented the execution of ADLs outside of the home (shopping, sports, travel, driving, etc.).  There was moderate impairment in family relations and work, with no impact in judgement and thinking.  The examiner diagnosed post-traumatic stress disorder (PTSD), with a GAF of 60 (moderate difficulty in social and occupational functioning) attributed to mood instability, and a “guarded” prognosis for improvement.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB adjudicated the MDD condition as unfitting with a disability rating of 10% coded, 9434 (major depressive disorder).  The VA rating decision dated 26 May 2011 granted service-connection for a diagnosis of PTSD, with a 70% rating retroactive to the date of separation, coded 9411 (PTSD).  The Board first considered whether VASRD § 4.129, mental disorders due to traumatic stress, was applicable in this case.  The Board noted that the CI was deployed to Iraq from 2003 to 2005, but there was no evidence or description of a specific stressor that precipitated the onset of the CI’s psychiatric symptoms.  There were no psychiatric visits or treatments in the STR until 11 months pre-separation.  The Board determined that VASRD § 4.129 was not applicable in this case.  
The Board then considered whether there was evidence for a higher than 10% rating IAW VASRD §4.130, general rating schedule for mental disorders.  The Board noted that there was no STR evidence for neglected hygiene, impairment in thinking or judgment, impaired activities of daily living, alcohol/substance abuse, legal difficulties, or psychiatric emergency room treatment or hospital admissions within 12 months of separation.  The CI was diagnosed with MDD in October 2008, was taking 2 medications, and had completed several months of treatment for depression.  There was limited participation in various therapies (biofeedback, anxiety therapies), however, by January 2009, his mood and anxiety issues were improving.  He had been performing as a 24 hour duty driver from July 2008 through February 2009 without issue.  The commander nonspecifically stated that “once his condition changed, he was taken off his driving status,” and began to seek light duty prior to separation.  Although the Commander stated that his “physical and mental condition will not allow him to do MOS,” it was apparent that the majority of the CI’s issues surrounded his back condition.  

After separation, he was taking four medications to manage his MH symptoms.  There was a reported hospitalization in October 2010. This would be considered post-separation worsening and therefore not representative of the disability at separation.  He continued to have depression and irritability, impaired concentration and distractibility, low energy and motivation, lack of interest, insomnia, and low self-esteem.  He was married with two children, however, reportedly experienced isolation from family, memory impairment, and neglect of personal hygiene.  His mood instability affected his family relationships, and limited employment.  His insight and judgment were not impaired.  

There was no pre-separation documentation of decreased work efficiency or inability to perform occupational tasks as the commander’s statement did not reflect any impairment specifically due to psychological symptoms.  There was no evidence of panic attacks, or mild memory loss.  The CI was never hospitalized for a mental health condition, did not seek treatment in the emergency room, and noted improvement with medication.  The Board noted that his condition worsened after separation, however this does not provide the basis for its disability rating recommendation at the time of permanent separation.  The Board assesses the fairness of the rating decision based on the evidence proximate to final separation.  Based on this, the Board concluded that the evidence best supports a rating of 10% for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.  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 MDD condition.  

Contended PEB Conditions:  Cognitive Disorder, Mild Hearing loss and Intermittent Left Elbow Pain.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  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 any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the lumbar intervertebral disc syndrome condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the major depressive disorder condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended cognitive disorder, hearing loss, left elbow pain, and intermittent subjective paresthesias of the right leg 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 his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Lumbar Intervertebral Disc Syndrome	5237	20%	
Major Depression Disorder	9434	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140714, 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), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXX AR20160017165 (PD201403203)

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 re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% 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 30% 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