RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00216
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080427

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Cannon Crewmember, medically separated for “intervertebral disc syndrome [lumbosacral spine]” and “depressive disorder.” The back condition was rated at 10%, but the depressive disorder was adjudicated as having existed prior to service without service aggravation (EPTS).  The CI was medically separated with a combined 10% disability.

CI CONTENTION:  The rating for major depressive disorder should be changed.  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 - 20080317	VARD – 50080626	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disc Syndrome [Lumbosacral Spine]	5243	10%	Lumbar Degenerative Joint Disease and Degenerative Disc Disease Status Post Discectomy with Radiculopathy	5242	20%	20080327	
Depressive Disorder	9434	EPTS	Depressive Disorder and Conversion Disorder	9434	0%	20080402	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Intervertebral Disc Syndrome [Lumbosacral Spine].  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s intervertebral disc syndrome (IDS) began in 2006 while deployed after performing repeated vehicle dismounts in full combat gear.  Magnetic resonance imaging showed a herniated disc at L5-S1 impinging on the right S1 nerve root and multilevel spinal arthritis.  Electrodiagnostic studies in October 2006 were normal.  The CI underwent lumbar discectomy in November 2006.  He underwent a repeat surgery in April 2007 for a recurrent disc herniation at the same level noted on MRI in February 2007.  Following the second surgery the CI reported significant improvement in his right lower extremity (RLE) pain, but had persistent low back pain (LBP) and intermittent RLE pain.  A third MRI was performed 27 July 2007 and showed scarring around the S1 nerve root on the right and residual or recurrent “tiny” disc protrusion.  The MEB forwarded “chronic low back pain secondary to degenerative disc disease, status post discectomy at the L5-S1 level, two procedures” for PEB adjudication.  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated 26 September 2007, 7 months prior to separation, the CI reported chronic LBP and RLE paresthesias.  Physical examination showed “decreased” thoracolumbar and sacral ROM.  There was a well-healed surgical scar and tenderness to palpation (TTP) to the right of the scar.  There was no muscle spasm.   The CI was able to heel and toe walk without difficulty.  Lower extremity strength, sensation, and reflexes were normal and straight leg raise testing to elicit radicular signs was negative.  Lumbar X-rays showed no evidence of spinal instability.  

A neurosurgical MEB consult on 15 October 2007 indicated the CI was seen in August 2007 for primary complaint of LBP, with occasional RLE pain.  The neurosurgeon indicated that the July 2007 MRI showed post-operative changes without a recurrent disc herniation and although lumbar fusion surgery was discussed, no further surgery was recommended.  The physical examination showed focal right side low back TTP without muscle spasm.  Gait and strength were normal and examination maneuvers to elicit radicular symptoms were negative.  

The MEB NARSUM examination on 31 October 2007, 6 months prior to separation, noted complaints of chronic LBP and cited the findings of the MEB DD Form 2808 examination summarized above.  Lumbar spine X-rays in October 2007 showed degenerative disc disease.  

At the 27 March 2008 VA Compensation and Pension (C&P) evaluation, performed 1 month before separation, the CI reported LBP and persistent RLE radiculopathy.  Physical examination showed an antalgic gait favoring the RLE.  The CI was not using any assistive devices for ambulation.  He reported flare-ups twice per month with pain that radiates down the RLE that last until he goes to the emergency room.  He denied bowel or bladder symptoms.  The physical examination noted the surgical scar was adherent to deep tissue.  Thoracolumbar ROM was 60 degrees (normal 90) and combined ROM was 195 degrees (normal 240) with painful motion noted.  There was increased pain with five repetitions of ROM and no additional loss of ROM was noted.  Reflexes were normal.  Lumbar spine X-rays showed focal DDD and spinal arthritis.  

At VA outpatient pain medicine evaluations in July and August 2008, the CI reported LBP that radiated down the RLE at times, without numbness, tingling or weakness.  A repeat MRI on 12 September 2008 showed scar tissue around the right S1 nerve root that was being displaced by a disc protrusion.  A neurosurgical consult was recommended to see if the CI was a candidate for any additional surgery.  

At the 11 March 2009 VA Compensation and Pension (C&P) evaluation, performed 10 months after separation, the CI reported the same symptoms of constant LBP and RLE pain. He reported that at the time of pain he could function with medication.  Physical examination showed an antalgic gait and he was leaning on crutches, but the examiner noted the CI was able to ambulate without crutches.  There were normal spinal curvatures without muscle spasm.  There was TTP without evidence of radiating pain with movement.  Thoracolumbar ROM was 30 degrees flexion and combined ROM of 135 degrees.  There was pain, fatigue and lack of endurance or incoordination after repetitive use, but there was no additional loss of ROM.  Painful motion was not noted but the examiner noted that “pain begins at 0 degrees” indicated the CI had pain while standing still.  The examiner noted there were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.  Lower extremity strength, sensation, and reflexes were normal.  

There was no documentation in VA Rating Decisions to May 2014 that the CI had additional back surgery after separation. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the intervertebral disc syndrome (IDS) condition 10%, coded 5243 (intervertebral disc syndrome) citing TTP with normal ROM and no spasm.  The VA rated the IDS condition 20% coded 5242 (degenerative spinal arthritis), based on the VA C&P examination 1 months before separation, citing forward flexion “greater than 30 degrees but not greater than 60 degrees.”  The VA Rating Decision dated 11 March 2009 continued the 20% rating based on the VA C&P examination 10 months after separation.  

The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the VA examination 1 month before separation.  Although the MEB NARSUM examination, 7 months before separation, supported a 10% rating based on ROM it was medically plausible that the noted scarring on MRI was producing worsening symptoms.  The TL flexion noted at the VA examination, 10 months after separation, supported a 40% rating for limitation of flexion not greater than 30 degrees, however, there was some evidence of post-separation worsening of the back condition noted on the MRI performed in September 2008.  Based on the total evidence in record, the Board agreed that the CI’s disability picture due to the back condition at the time of separation was more nearly approximated by the 20% rating rather than either the 10% or the 40% rating criteria.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the back condition, coded 5243.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  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.  The CI did have radicular symptoms of the RLE which greatly improved after the second surgery.  He reported persistent radiating pain and paresthesia to the RLE at all exams.  However, the MEB examination and the VA examination 10 months after separation documented normal strength, sensation, and reflexes of the lower extremities.  Radiating pain is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates)” and there was no evidence in this case that a motor or sensory deficit 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.  

Contended PEB Conditions:  Depressive Disorder.  The PEB determined the depressive disorder existed prior to service based on the CI’s consistent self-reported childhood history, which included a period of inpatient psychiatric care during grade school, a suicide attempt by the CI and his twin brother in grammar school, and severe recurrent behavioral disturbances throughout childhood and adolescence prior to entering military service.  The Board found no evidence to indicate this was not correct.  The Board next considered whether or not there was evidence of service-aggravation.  

The MEB psychiatric consult performed 16 October 2007 noted that the CI was undergoing a medical board for his back condition discussed above.  The psychiatric evaluation was requested because a tremor of the CI’s right arm and hand had developed during deployment, and diagnostic possibilities after a comprehensive evaluation by neurology included essential tremor or psychogenic tremor and pseudoseizures.  The MEB examiner noted behavioral health (BH) notes indicated that when the CI first presented to BH in July 2007 he did not feel he needed mental health (MH) help and believed there was a medical explanation for his tremor, which began shortly after his back injury.  However, in October 2007 he reported depression symptoms of sleep problems, loss of appetite, loss of interest and pleasure, decreased concentration, and forgetfulness.  He reported a history of anger management problems and endorsed thoughts of death, but denied suicidal ideation (SI).  At the MEB psychiatric consult the CI reported that he had a good experience in the military and was doing fine during deployment.  He reported he was “enjoying it” [deployment] until he injured his back and since then he had felt depressed.  The CI described his mood as “sad and down.”  He was working outside of his MOS due to his back condition and liked his alternate job because it kept him busy and he was able to do it well.  He reported low energy but was sleeping well on current medications.  He reported a decreased appetite but was gaining weight.  He denied problems with concentration or self-esteem, SI, or homicidal ideation.  The mental status examination noted a depressed mood and “bland” affect and was otherwise unremarkable.  The Axis I diagnosis was depressive disorder, NOS (not otherwise specified), “associated with significant behavioral disturbances”, which existed prior to service and was not permanently service aggravated.  The MEB psychiatrist commented that the CI’s current behavioral disturbance appeared to be whole body shaking, which did “not appear to the examiner to be an unconscious process.”  On Axis II antisocial personality was noted.  The global assessment of functioning (GAF) assignment was 67, which is in the mild range of impairment on this scale.  The MEB psychiatrist provided the opinion that the shaking would resolve with separation from the military.  The CI was determined to fall below retention standards with a recommended S3 profile limitation of no assignment to areas without MH services.  

The commander’s statement dated 30 October 2007 indicated the CI was issued a permanent profile for back pain, constant tremors in his hands, occasional uncontrollable whole body shaking, and depression.  The commander stated that the CI was performing admirably in his limited duty position.  The commander recounted that after some treatment for his back in-theater, the CI was returned to his duty station and upon exiting from the helicopter the CI was observed to start to shake uncontrollably.  The CI told his commander that he was feeling like he was worthless and couldn’t do anything.  The commander commented that despite treatment he had not seen any improvement in the CI’s shaking or mental status.

The VA C&P mental disorders examination on 2 April 2008, 3 weeks before separation, noted that the CI had been diagnosed with depressive disorder, NOS, an antisocial personality disorder (PD) and a conversion disorder.  Since the MEB was completed the CI reported he had been taken off all psychotropic medications.  He was on terminal leave and had just started a new job the previous day as a security guard for a store.  The CI had plans to go to college for a specific course of study.  He reported heavy alcohol use at times in the past without any legal issues and denied illicit substance use.  The VA examiner noted that the CI reported “a long, complex history starting even in his preschool years”.  He was a twin and he was the “violent and physical” one.  His behavior was “disruptive, violent and unmanageable” and at age 5 or 6 he was hospitalized in a facility for disturbed children.  He later also was placed in foster care for a period of time due to difficulties getting along with his then divorced parents.  He “calmed down” enough to graduate high school and entered the military.  The CI described his combat deployment as “the best time in my life,” he enjoyed the camaraderie.  The VA MH examiner indicated the CI did not endorse “significant stress of a psychiatric nature.”  He did not appear anxious or depressed.  He was not under MH care, nor seeking any.  The CI reported he had learned to manage his anger.  The MSE noted the CI was well groomed and cooperative.  There was no tremor or psychomotor agitation noted and the CI appeared to be in a euthymic mood (normal).  There was no evidence of cognitive deficits, SI/HI, or hallucinations, delusions, or other psychotic features.  The CI was “quite frank however in describing a life filled with fights and conflict.”  The examiner reiterated that the CI considered his deployment was one of the best parts of his life before his injury and noted that the CI “absolutely denies symptoms of combat related stress then or now.”  Although the CI did have depression and anxiety symptoms during treatment for his back, the examiner indicated the symptoms had apparently “lifted substantially in recent times,” even with cessation of psychotropic medications.  The Axis I diagnoses were depressive d/o, NOS, now in remission and conversion disorder, now in remission and Axis II diagnosis of antisocial PD.  The VA MH examiner indicated that the PD existed prior to enlistment and there was “no evidence of aggravation” by military service.  The GAF assignment was 70, which is in the mild range of impairment on this scale.

DoDI 1332.38 defines service aggravation as the permanent worsening of a pre-Service medical condition over and above the natural progression of the condition caused by trauma or the nature of Military Service.  The presumption of SA may only be overcome by a preponderance of competent medical evidence and accepted medical principles that the natural progression of a pre-existing condition was clearly unaltered by any consequence of military service.  The threshold to overcome the presumption of SA is high with further elaboration on “competent medical evidence” in DoDI 1332.38 (E3.P4.5.2.3) as follows: “medical evidence must be based upon well-established medical principles, as distinguished from personal medical opinion alone” and “medical principles” are defined as “fundamental deductions consistent with medical facts that are so reasonable and logical as to create a virtual certainty that they are correct.”  In this case all Board members agreed that there was no evidence in record proximate to separation, that any MH condition had been permanently worsened by military service.  The CI did experience a period of depression symptoms and possibly a conversion disorder (there was no documentation of a formal diagnosis of conversion disorder by a psychiatrist in the STR) or perhaps he was exhibiting anxiety related symptoms of tremor and whole body shaking.  However, by the time of the pre-separation C&P exam, the CI no longer manifested symptoms of depressive disorder NOS or conversion disorder.  The Axis II PD diagnosis was judged by both the Service and VA psychiatrists to not have been SA.  Moreover, PD are conditions that do not constitute a physical disability IAW DoDI 1332. 38, enclosure 5, and are therefore not eligible for Service disability rating.  After due deliberation, considering all of the evidence the Board concluded the depressive disorder was not permanently aggravated by military service and therefore recommends no change in the PEB’s adjudication.

BOARD FINDINGS:  In the matter of the intervertebral disc syndrome, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.   In the matter of the contended depressive disorder and in accordance with VASRD §4.130, the Board unanimously recommends no change in the PEB’s adjudication.  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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Intervertebral Disc Syndrome	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150312, 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

03 MAR 2017

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20170002561  (PD201500216)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  This decision is final.  

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.   

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:

CF: 
(  ) DoD PDBR
(  ) DVA