RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00040
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20060604

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Air National Guard E9, Medical Services Superintendent, medically separated for “herniated nucleus pulposus (HNP) C6-7 status post diskectomy and fusion” and “major depressive disorder (MDD),” each rated 10%, with a combined disability rating of 20%.  

CI CONTENTION:  The CI contends he was given a higher rating for his conditions by the VA.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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(s) at the time of separation.  The panel 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 panel 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 - 20060216	VARD - 20070524	
Condition	Code	Rating	Condition	Code	Rating	Exam	
HNP C6-7…	5241	10%	DDD, C-spine, C4-6	5237	30%	20060914	
MDD	9434	10%	Anxiety & Depression	9434	NSC	20061115	
			PTSD	9411	NSC		
Obstructive Sleep Apnea (OSA)	Cat II	OSA	6847	50%	20060914	
Barret’s Esophagus		GERD w/ Barret’s Esophagus	7399-7346	0%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

HNP C6-7 (Cervical/Neck).  According to service treatment records (STR) and the 9 June 2005 Review In Lieu of Medical Evaluation Board (MEB), the CI’s neck condition began in late 2004 with pain in his neck, scapulae and radiating down his shoulders into the forearms.  Magnetic resonance imaging (MRI) showed cervical disc protrusion at C6/7 with canal compromise.  The CI was pending surgery for a protruding disc at C6-7 and the CI was referred for MEB.  
Cervical fusion surgery was performed 24 June 2005, 11 months prior to separation.  Following surgery, electrodiagnostic testing (EMG/NCS) found no cervical radiculopathy or myelopathy, and there was a normal motor examination with normal reflexes and extremity movement.  There was no post-surgical cervical examination or range of motion (ROM) evaluation in evidence prior to separation.  

At the 14 September 2006 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported neck pain radiating down his arms.  The CI indicated he had “required bed rest for pain in the past 12 months, about 90 days out of the year.  This was doctor prescribed.”  Physical examination showed a non-tender neck with normal appearance.  The ROM was painful forward flexion of 8 degrees (normal 45) with combined ROM of 115 degrees (normal 340).  At the 5 March 2007 VA initial outpatient visit, 9 months after separation, the CI complained of cervical spondylosis with myelopathy.  Physical examination showed cervical paravertebral muscle spasms with flexion of 20 degrees (normal 90) and rotations of 10 and 15 degrees (normal 45), with no lateral flexion measurements provided.  

The panel directed attention to its rating recommendation based on the above evidence.  The formal PEB rated the cervical condition 10%, coded 5241 (spinal fusion), and the PEB remarks indicated an attached sheet that was not found in evidence.  The VA rated the cervical condition 30%, coded 5237 (cervical spine strain), based on the C&P examination 3 months after separation, citing limited motion.  The only ratable cervical examination in evidence following pre-separation surgery was the C&P examination 3 months after separation.  The panel therefore based the rating on the VA examination most proximate to separation.  The panel agreed that a 30% rating, was justified for limitation of flexion not greater than 15 degrees reported on the VA examination.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the cervical condition, coded 5241.  

Major Depressive Disorder.  STRs were scant and the first indication of anxiety/depression was an 18 March 2005 telephone consultation indicating the CI was anxious about his gastrointestinal condition, that a depression screen was negative, and that Zoloft (sertraline - an antidepressant) was prescribed.  There was no discussion of any mental disorder in the 9 June 2005 Review In Lieu of MEB, aside from a hand-written circle for “Anxiety” under past medical history, and medications included Zoloft.  The CI had been granted three extensions for medical concerns (initially and primarily Barrett’s esophagus (from prolonged gastroesophageal reflux-GERD), although the physician’s memos (1 and 6 April 2005) recommended against medical hold due to the chronic nature of the CI’s conditions.  

The 10 June 2005 commander’s statement indicated the CI was given a 90-day letter notifying the CI that he was not going to be retained after his separation date of 6 April 2005, and that the CI was detailed to work on inspection preparation 18-28 January 2005, with 28 January being his last day in the workplace.  Medical indications were that the CI could not work a full shift.  The commander requested guidance on MEB, medical hold, or separation as the CI was presumed fit for duty at the time of his notification of separation from the AGR program.  

VA pre-separation treatment notes from 14 September 2005 and 12 October 2005, showed a past medical history included “depression and anxiety,” and medications included Zoloft as well as Trazadone (an antidepressant) and Ambien (a sleeping aid – sedative/hypnotic).  The note indicated that both antidepressant medications were increased and that Ambien was helping with sleep (“insomnia improved”).  

VA treatment notes indicated that the CI was hospitalized on 6 December 2005, 6 months prior to separation, by a psychiatrist (unknown diagnoses or pain management).  The CI was next hospitalized in June 2006 (the month of separation) for depression, insomnia, and post-traumatic stress disorder (PTSD – Vietnam flashbacks); however, no other information concerning either hospitalization was in evidence.  

At the 15 November 2006 Mental Disorder Compensation and Pension (C&P) evaluation, 5 months after separation, the CI was evaluated for anxiety and depression.  The mental status examination (MSE) was notable only for a restricted affect.  There was no active suicidal ideation, delusional or hallucinatory symptoms, or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  There was no axis I diagnosis with an axis II diagnosis of obsessive/compulsive personality.  The narrative indicated no missed work while in the military and “in summary, the (CI) had no functional impairment.”  The examiner stated “In my view the (CI) does not meet the criteria for depression and anxiety.  The symptoms of depression and anxiety are a manifestation of his axis II obsessive/compulsive personality.  The obsessive compulsive personality may have gotten worse due to his physical and surgical condition and pain.”  The Global Assessment of Function (GAF) was 80 (71-80:  If symptoms are present they are transient and expectable reactions to psychosocial stressors; no more than slight impairment in social, occupational, or school functioning).  

The 2 November 2007 initial PTSD C&P evaluation, 17 months after separation, indicated the CI had VA treatment for PTSD, depression and insomnia.  The CI was taking antidepressant medication and related stressors from Vietnam duty as a medic.  Psychiatric examination was notable for a circumstantial speech, a constricted affect, and an attentive, manipulative and irritable attitude toward the examiner.  There was no current active suicidal ideation, but a past suicidal gesture.  There was no delusional or hallucinatory symptoms, or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  The examiner specified that “the (CI’s) presentation was described as manipulative because (the CI’s) account of his PTSD symptoms were inconsistent and much more severe than his statements during the November 2006 C&P exam.”  The diagnoses were PTSD, chronic and MDD.  The GAF was 60 (in the moderate symptom range) and the examiner indicated that the CI had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the MDD condition 10%, coded 9343 (major depressive disorder).  The VA did not service-connect anxiety and depression (or any mental health condition) coded 9434, based on the C&P examination 5 months after separation, citing no axis I diagnosis; however, the VA rated PTSD and MDD at 30% coded 9411, effective 3 June 2006, citing receipt of evidence showing a diagnosis of PTSD and major depression during active duty and the C&P examination 17 months after separation.  

The panel noted that the VA diagnosed PTSD with MDD, prior to separation and in their C&P examination remote from separation, while the IPEB diagnosis was MDD.  Regardless of specific diagnosis, the panel considered whether the application of §4.129 was appropriate based on the evidence of a traumatic stressor in the service records.  All panel members agreed that proximate to separation the evidence of the record did not support a traumatic stressor as the cause of the MDD mental condition for which application of VASRD §4.129 would be appropriate.  

The panel next considered the §4.130 rating at the time of separation.  The higher rating of 30% requires evidence of “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks” due to  such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events.”  The panel considered the scant STR, evidence of satisfactory performance, and initial C&P examination had greater probative value than the short notes indicating pre-separation hospitalization and the more remote VA C&P examination, for rating the CI’ disability at separation.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the MDD condition.  

Contended PEB Conditions:  OSA and Barret’s Esophagus.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  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 panel 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 cervical condition, the panel unanimously recommends a disability rating of 30%, coded 5241 IAW VASRD §4.71a.  In the matter of the MDD condition and IAW VASRD §4.130, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended OSA and Barret’s esophagus conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the panel’s scope of review for consideration.  

The panel 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	
HNP C6-7…	5241	30%	
MDD	9434	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150113, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2015-00040.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay

I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at XXXXXXXXXXXXXXXXXX to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

Sincerely,

XXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings