RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	      CASE:  PD-2014-04210
BRANCH OF SERVICE:  Army                                                                   SEPARATION DATE:  20050705

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Respiratory Specialist, medically separated for “posttraumatic stress disorder (PTSD)” and “cervical radiculopathy” rated 10% and 10%, respectively, with a combined  disability rating of 20%.

CI CONTENTION:  The CI requests the Board 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 on 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 - 20050331	VARD - 20070118	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10%	Post-Traumatic Stress Disorder (PTSD)	9411	50%	20060710	
Cervical Radiculopathy	5237	10%	Cervical Radiculopathy of the Right Upper Extremity	8510	40%	20060719	
Degenerative Joint Disease of the Sacroiliac Joints	Not Unfitting 	Degenerative Stenosis of the Lumbar Spine	5238	10%	20060719	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

PTSD.  According to the service treatment records and the Medical Evaluation Board (MEB) mental health narrative summary (NARSUM) in April 2002, the CI became involved in mental health (MH) after he had a positive urine drug screen for marijuana.  After several evaluations, he was noted to have significant anxiety and depressive symptoms that had gone untreated since his deployment to Somalia in 1993.  Over a period of days in April 2002, his symptoms worsened and he was admitted to the hospital for treatment.  At that time he received the diagnoses of PTSD, major depressive disorder (MDD), and alcohol dependence in sustained partial remission.  The CI was treated with medication and group therapy.  The NARSUM noted that since 2002, the CI presented to MH follow-up 4 times in 2003 and once in 2004.  At the NARSUM dated 29 July 2004, the CI noted that he had continued to have PTSD symptoms.  He no longer abused alcohol and he denied abuse of any drugs.  The mental status examination (MSE) documented an anxious mood and depressed affect.  His judgment and insight were intact.  The diagnoses of PTSD, chronic and MDD, recurrent, moderate were recorded.  An addendum to the MH NARSUM dated 5 November 2004, 8 months before separation, noted the CI continued to have insomnia and fatigue, which reportedly impaired his ability to concentrate and be effective at work.  His feelings of detachment was opined to have a negative impact on his marriage and social life.  He had irritability and angry outbursts that led to conflicts at work and at home.  The psychiatrist opined that his PTSD and depressive symptoms had a negative effect on his occupational and social functioning.

 The VA Compensation and Pension (C&P) mental exam was conducted a year after separation.  The CI reported he continued to have PTSD symptoms and continued to see a psychologist.  He also reported that he continued taking medication; however, it was not clear who prescribed medications.  The CI noted he had problems with sleep, irritability and depressed mood.  The general C&P exam a month later, noted that he had sleep apnea and used a CPAP.  The CI was employed at a sleep lab as a technician and noted he had not missed any time from work.  He indicated working helped him to cope with his PTSD.  The CI reported he was separated from his third wife due to problems in the relationship and her substance use.  He also noted he last used marijuana in early 2005, but had not used alcohol for 3 months.  The MSE noted depressed mood, slow speech, psychomotor retardation and an irritable affect.  He was noted to have mildly impaired memory for immediate information.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the PTSD associated with depressive disorder condition at 10%, coded 9411, with the notation that his symptoms were worsened by his “severe substance dependence.”  The VA granted a 50% disability rating coded 9411.  The Board noted the PEB documented that the CI’s condition was the result of combat in Somalia. Therefore, all 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 Temporary Disability Retired List (TDRL) placement.  Available treatment records prior to constructive TDRL period demonstrated some impairment in occupational and social functioning; however, there was no documented evidence to support impairment in judgment or thinking.  The NARSUM exam recorded history of one psychiatric hospitalization related to PTSD and mood symptoms.  There was no evidence of suicide attempts or homicidal ideation, or visits to the emergency room for MH issues.  There was no evidence of a legal history at the time of constructive TDRL.  The MSE exam was essentially normal.  The commander’s statement dated 3 months after the NARSUM, noted the CI had good performance and was able to perform his duties as expected. There was no indication that the CI’s MH symptoms had interfered significantly with duty performance. 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 exam was the sole source document available for review.  That exam documented continued difficulty with sleep; however, noted the CI reported no loss of work.  There was no documented impairment in thinking, judgment, short or long-term memory, and no evidence of impaired functioning at work.  Although it was noted that he had problems with sleep, it was also documented that he suffered from sleep apnea.  There was no evidence of any workplace issues.  All Board members agreed, the record demonstrated his condition was stable and he had good response to treatment prior to separation.  After deliberations, Board members concluded the CI’s condition at the time of separation, was most reflective of the 10% level for “symptoms controlled by continuous medication”.  After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the Board recommended a 50% disability rating at TDRL placement and a permanent 10% disability for the condition of PTSD.

Cervical Radiculopathy Condition.  According to service treatment records and the MEB NARSUM, the CI had a 10 to 11 year history of neck pain with radiculopathy, exacerbated by activity.  Radiographic studies in April 2003 demonstrated degenerative disc disease of the cervical spine with moderate to severe right neural foraminal stenosis at C5-C6.  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 a MEB.  The MEB forwarded “cervical radiculopathy and degenerative disc disease of the cervical and lumbar spine” for PEB adjudication.  At the MEB NARSUM examination on 5 May 2004, 14 months before separation, the CI reported constant neck pain with radiation to the right shoulder and arm.  His pain was somewhat relieved by medication.  Physical examination documented neck stiffness, and tenderness to palpation over C5-C7, and over neck muscles.  The range of motion (ROM) measurements for the MEB recorded at the physical therapy appointment on 7 October 2004, 9 months before separation, documented forward flexion to 37 degrees (normal 45), with pain on motion . 

The CI was non-attendant to VA Compensation and Pension (C&P) spine examination.  At the VA C&P peripheral nerve examination, performed a year after separation, the examiner noted there were no clinical abnormalities documented in the record other than complaints of neck pain.  The CI reported he had numbness in his right hand.  Incapacitating episodes were not documented.  The cervical magnetic resonance imaging conducted at the VA revealed degenerative stenosis that involved the nerve root canals of C6-7.  The electrodiagnostic studies conducted at the VA were normal.  The examiner noted there was no evidence of carpal tunnel syndrome or polyneuropathy.  

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 below).  The PEB rated the cervical radiculopathy with degenerative disc disease at 10%, coded 5237 (cervical spine strain).  The VA, a year after separation also assigned a 10% rating under the same code for the condition of degenerative stenosis of the cervical spine, for painful motion.  The condition of cervical radiculopathy of the right upper extremity was rated by the VA at 40%, coded 8510.  The Board agreed that a 10% rating, but no higher, was justified based upon ROM of forward flexion greater than 30 but not greater than 40 degrees.  There was no documented report of spasm or guarding so the next higher 20% rating was not justified on this basis, and there was no justification for rating under the intervertebral disc syndrome code.  

The Board also considered whether additional disability rating was justified for peripheral nerve impairment due to radiculopathy, and was unable to justify an additional rating, given normal electrodiagnostic studies, normal strength, reflexes, and sensation exams, and absence of evidence demonstrating negative impact on duty performance related to radiculopathy.  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 pain at constructive TDRL placement and removal.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the degenerative joint disease of the sacroiliac joints condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The NARSUM examiner opined that the condition failed retention standards without specific reference to cause.  His profile indicated conditions that included joint disease of the neck, back, and sacroiliac joint; however, the limitations were not specific to the sacroiliac joint, and was more reflective of neck and back conditions.  The CI’s profile allowed lower body weight training, which would suggest that he was able to perform squats and other lower body exercises.  

Radiographs in May 2004 showed mild degenerative changes at the S1 joint.  It was noted that repetitive jumping, climbing stairs, and repetitive stooping, exacerbated his pain; however, there was not the preponderance of evidence that this condition was solely responsible for his pain or for the profile limitations.  Evidence of treatment specifically for the hip joint was absent in the 12 months prior to separation.  The commander’s statement noted that the CI had good duty performance and was able to perform his duties “as normally expected with his injury.”  No specific impairment or condition was noted.  There was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.

BOARD FINDINGS:  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 10% permanent rating IAW VASRD §4.130.  In the matter of the cervical radiculopathy condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended degenerative joint disease of the sacroiliac joints condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
PTSD	9411	50%	10%	
Cervical Radiculopathy	5237	10%	10%	
RATING	60%	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141017, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160011997, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability
Board of Review (DoD PDBR) to constructively place you on the Temporary Disability
Retired List (TDRL) at 60% disability for six months effective the date of your original
medical separation for disability with [severance pay] [Reserve retirement] and then
following this six month period no recharacterization of your separation or modification
of the permanent disability rating of 20%. Enclosed is a copy of the Board's
recommendation and record of proceedings for your information.

The constructive TDRL period will result in an adjustment to your pay providing
you 50% retired pay for six months from the date of your original medical separation
and then no recharacterization of your separation or modification of the permanent
disability rating of 20% following the constructive six month TDRL period.

The accepted DoD PDBR recommendation has been forwarded to the
Army Physical Disability Agency for required correction of records and then to the
U.S. Defense Finance and Accounting Service to make the necessary adjustment to
your pay and allowances. These agencies will provide you with official notification by
mail as soon as the directed corrections have been made and will provide information
on your retirement benefits. Due to the large number of cases in process, please be
advised that it may be several months before you receive notification that the
corrections are completed and pay adjusted. Inquiry concerning your correction of
records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO),
XXXXXXXXXXXXXXXXXXX.

A copy of this decision has also been provided to the Department of Veterans
Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,

Enclosure