RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00148
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060815

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Armor Crewman, medically separated for “low back pain with degenerative disc disease with secondary major depressive disorder…,” with a disability rating of 10%.  

CI CONTENTION:  The CI notes he was not rated for upper back and neck issues and the depressive disorder was included with the back injury. His complete submission, with attachments, 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 - 20060731	VARD - 20070209 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain (LBP) Associated with Degenerative Disc Disease (DDD), with Secondary Major Depressive Disorder (MDD)…	5243	10% 
(MDD Not Separately Unfitting)	Lumbosacral DDD 	5242	20%	20060810 
20061121	
			MDD without Psychosis	9434	50%	2006081020061211	
RATING:  10%	RATING:  80%	

ANALYSIS SUMMARY:  

LBP.  The PEB combined the LBP and MDD conditions as a single unfitting condition coded 5243 (intervertebral disc syndrome) and rated 10%.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the LBP and MDD conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in March 2003 with no history of trauma.  The records were silent for 15 months, with another episode of back pain occurring in June 2004.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for an MEB.  The MEB forwarded “degenerative disc disease” for PEB adjudication.  

At the 10 February 2005 MEB examination (recorded on DD Form 2808), 18 months pre-separation, the physical examination showed paraspinal tenderness, decreased flexion with painful motion, and evidence of radiculopathy on the right.  There was a normal gait, and normal strength, sensation, and neurologic testing.  Radiographic imaging (MRI) in March 2005 reportedly documented a herniated L5-S1 vertebral disc with sciatic nerve root compression.  According to the 16 February 2006 commander’s statement, 6 months pre-separation, the CI was considered to be “extremely limited in his ability to execute any type of physical labor due to his back injury and [was] unable to perform his [military duties].”  

At the 16 June 2006 MEB NARSUM examination, 2 months pre-separation, the CI reported constant pain with occasional radiation to the right leg which was worsened by sitting, standing, walking, running, bending, lifting, twisting, and carrying items.  The physical examination showed evidence of radiculopathy, with normal strength and reflexes.  At a July 2006 physical therapy evaluation, one month pre-separation, the physical examination showed flexion of 65 degrees (normal 90), extension to 10 degrees (normal 30), bilateral lateral flexion to 10 degrees each (normal 30), and normal rotation bilaterally.  Painful motion was present.  A permanent profile was issued in July 2006.  

At the 10 August 2006 VA Compensation and Pension (C&P) evaluation, 5 days pre-separation, the CI reported pain radiating to both lower extremities (right greater than left), with constant numbness on the right and subjective weakness and decreased sensation.  He also reported 2-4 days of incapacitation per month during which time he had difficulty getting in and out of bed and dressing or undressing.  The physical examination showed normal gait, posture, and curvature of the spine; normal heel and toe walk; and no evidence of muscle atrophy.  Forward flexion was to 80 degrees, extension was to 25 degrees; both with pain.  Lateral flexion and rotation were normal bilaterally.  There was paraspinal tenderness without spasm; and a normal strength and reflex examination.  There was decreased sensation in a “stocking-like” distribution on the right.  On repetition, there were no further decrements in range of motion (ROM).  

At the 21 November 2006 VA C&P examination, 3 months post-separation, the CI reported incapacitating episodes that occurred weekly.  The physical examination showed normal gait, posture and curvature of the spine.  There was a 2 x 2 cm “knot” along the paraspinal L4-L5 vertebrae, and a flexion of 60 degrees with pain.  There was normal strength and reflex testing and no further pain or decrements in ROM after repetition.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB bundled the LBP condition with depression and rated 10%, coded 5243 (intervertebral disc syndrome), citing [a herniated L5-S1 disc without neurologic abnormality, and ROM limited by pain.  The VA rated 20% for the DDD involving the lumbosacral spine condition coded 5242 (degenerative arthritis of the spine), based on the November 2006 C&P examination, citing a forward flexion of 60 degrees.  

The Board first considered if the low back condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The condition was permanently profiled in June 2006 and implicated in the NARSUM and commander’s statement.  Board members agreed that the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his military duties and accordingly a separate disability rating is recommended.  

The Board next considered the evidence for rating.  Throughout the STR, there was evidence of painful motion, normal gaits, and forward flexions recorded between 65 and 80 degrees.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees).  There was no STR documentation of flexion greater than 30 degrees but not greater than 60 degrees to support a higher rating.  There was no pre-separation evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour in support of a higher rating.  There was no evidence of intervertebral disc syndrome with incapacitating episodes requiring physician-prescribed bed rest for rating under that formula.  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.  There was no evidence of associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairments such as weakness with a direct impact on fitness that were separately functionally impairing for duty.  The Board therefore concluded that additional disability rating was not justified on this basis.  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 low back condition.  

MDD.  

There was no documentation of psychiatric or counseling visits in the STR until the June 2006 psychiatric NARSUM.  According to the psychiatric NARSUM, the CI’s MDD began in the spring of 2003.  Counseling was terminated after three sessions for the CI to attend a professional military education school.  No medications were started as the CI had been “fully functioning in his occupational and social settings.”  During a pre-deployment health assessment in February 2004, the CI denied having sought mental health counseling or care.  He did well during deployment to Iraq from March 2004 to March 2005.  During a post-deployment health assessment in March 2005, the CI denied anhedonia, depression, suicidal ideation, nightmares, avoidance, detachment, hypervigilance, and easy startle.  Shortly thereafter, the CI began experiencing difficulty sleeping, nightmares, panic attacks, depressed mood, isolating behavior with avoidance of large groups, and suicidal ideations with a plan.  Financial and relational problems (impending divorce) led to a family confrontation (for a perceived suicidal attempt) with subsequent arrest (for threatening a police officer) in July 2005.  He was jailed from July 2005 to September 2005, and hospitalized for 5 days during the incarceration for MDD, which included treatment for anxiety disorder.  After release, multiple medications were tried (August 2005 to January 2006) and discontinued by the CI in January 2006.  

The February 2006 commander’s statement did not address the MDD condition.  The MDD was profiled in February 2006, 6 months pre-separation, with no specific psychiatric restrictions other than having duties limited to daytime hours and the CI was referred for an MEB.  The MEB forwarded “MDD” for PEB adjudication.  

At a physical medicine visit in March 2006, the CI reported that his back pain was worse off of narcotics, but that he had “less depression and irritability.” 

At the June 2006 psychiatric NARSUM, the CI had stated, “If I could take the pain away, I would be able to go back to work.” The examiner noted that “as a result of his pain, he continued to have depressive problems….”  The CI continued to report depression, suicidal ideation without a plan, hypersomnia, anhedonia, general fatigue, difficulty concentrating, and low appetite despite weight gain.  The CI disengaged from therapy and, in April 2006, was hospitalized on the psychiatry ward for one night after experiencing relational problems and expressing suicidal comments.  He stated that his depression was “associated primarily with his pain and that if his pain could be adequately treated, his depression would improve considerably.”  The mental status examination (MSE) showed a depressed and frustrated mood but was otherwise normal with no evidence of panic attacks, no impairment in impulse control, thought process or communication; no current suicidal ideation; normal affect, concentration and personal hygiene; good memory and judgement, and normal spontaneous, relevant and coherent speech.  He had intact insight. He denied suicidal ideation.  The psychiatrist concluded with a diagnosis of MDD, recurrent, chronic with “marked” impairment for military duty and “definite” impairment of social and industrial adaptability. The Global Assessment of Functioning (GAF) score was 60 (moderate difficulty in social, occupational, or school functioning).  

At the 11 December 2006 VA C&P evaluation, 4 months post-separation, the CI denied any further hospitalizations and psychiatric care since military discharge.  He reported depression, hypersomnia, reduced energy, anhedonia, fatigue, difficulty concentrating, intermittent suicidal ideation without a plan, intrusive memories of combat, and hypervigilance.  He was unemployed and did not attend college due to lack of motivation and inability to focus.  The examiner assigned a GAF of 45 (serious impairment in social, occupational, or school functioning).  

The Board’s main charge is to assess the fairness of the PEB’s determination that the MDD 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 MDD was not implicated in the February 2006 commander’s statement; however, it was profiled, was implicated by the psychiatric examiner, and forwarded by the MEB as the primary diagnosis.  It was “not considered independently unfitting” by the PEB and bundled with the low back condition.  All was reviewed and considered by the Board.  The Board concluded that there was not a preponderance of evidence in the service records that overcame the Board’s presumption that the bundled MDD condition was reasonably considered separately unfitting. 

The Board then considered its rating recommendation for the unfitting MDD condition at the time of separation.  The Board deliberated the evidence contained in the June 2006 psychiatric NARSUM and December 2006 VA C&P examinations which included the pre-separation hospitalizations, and two near normal MSEs with disparate GAF scores (60 and 45).  

There was no pre-separation evidence of reduced reliability or productivity; flattened affect or panic attacks; no difficulties in understanding complex commands; and no difficulty in establishing and maintaining effective work relations in support of a higher rating.  However, there was evidence of chronic sleep impairment, depression, irritability, distractibility, insomnia, and difficulty in maintaining effective social relations.  There was evidence of impaired impulse control, and judgement that resulted in assault charges and a psychiatric inpatient hospitalization 13 months pre-separation that would support a higher rating.  However, counseling and medical therapy ensued with evidence indicative of improved functioning (normal MSE) and no evidence of impaired judgement by the time of separation.  At the December 2006 VA C&P examination, the CI was assigned a GAF of 45, however, the normal MSE corroborated a similar pre-separation level of functioning and was inconsistent with a 50% rating.  

The Board assesses the fairness of the rating decision based on the evidence proximate to final separation.  Based on the totality of the record, the Board determined that the evidence best supports a rating of 30% for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms such as: depressed mood, anxiety, suspiciousness, and chronic sleep impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the MDD condition.  

BOARD FINDINGS:  In the matter of the degenerative disc disease condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended MDD condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
LBP with DDD	5243	10%	
MDD	9434	30%	
COMBINED	40% 	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150208, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB																		

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

08 MAR 2017

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20170002972 (PD201500148)

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 40% 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 40% 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