RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01303
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040326

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Unit Supply Specialist, medically separated for “chronic low back pain” and “chronic neck pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI contends that his back has become more symptomatic and his hearing has deteriorated and requests that all his conditions be reviewed.  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 - 20040225	VARD - 20040520	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Mechanical Low Back Pain…	5237	10%	STR	
Chronic Neck Pain	5299-5237	10%	Degenerative Changes, Cervical Spine	5010	10%	STR	
Mood Disorder, NOS	Not Unfitting	Mood and Delusional Disorder	9435	NSC	STR	
Alcohol Dependence in Early Remission	Not Unfitting	No VA Placement	
Mixed Personality Disorder	Not Unfitting	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) addendum, the CI’s back condition began in April 2003 while moving lockers.  Radiographic studies showed degenerative disc disease with bulging intervertebral discs at L4-5, and L5-S1 with narrowing of the neuroforamina (space through which the spinal nerve root passes).  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “chronic low back pain” for PEB adjudication.  

At the 8 September 2003 MEB examination (recorded on DD Forms 2807 and 2808), 7 months prior to separation, the physical examination showed low back pain with limited range of motion (ROM) due to pain.  The examiner also noted that the CI had paraspinal muscle spasm.  There were no other findings and the examiner did not provide numeric ROM measurements.  

The 4 November 2002 MEB NARSUM examination, 5 months prior to separation, noted complaints of numbness in his right leg.  Thoracolumbar spine ROM measurements were flexion 96 degrees (which was truncated to the VASRD normal of 90 degrees), and combined ROM of 230 degrees (normal 240).  The CI had a slightly antalgic gait, but the examination was silent in regards to muscle spasm or guarding.  There was no gross deficit of motor strength and his lower extremity reflexes were normal.  The 18 November 2003 physical therapy ROM evaluation, 4 months prior to separation, showed the 90 degrees of flexion and 230 degrees combined ROM.  There was no VA examination in evidence proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5299-5237 (analogous to lumbosacral strain), citing “ROM 283 degrees without neurological abnormality.”  The VA rated the back condition 10%, coded 5237 (lumbosacral strain), citing ROM criteria, based on the STR.  

The panel noted that the PEB cited the combined ROM as greater than 235 degrees, but the PEB value did not truncate measurements which exceeded the VASRD normal for flexion and rotation in accordance with note 2 (“he normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion”).  The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM greater than 120 degrees but not greater than 235 degrees reported on the NARSUM examination.  Although the MEB examination indicated that the CI had muscle spasm, it was silent in regards to altered gait or abnormal spine contour.  The NARSUM examination, conducted 2 months later, showed the CI had an antalgic gait, but was silent in regards to spasm or guarding.  Even though the two examinations together showed that the CI had both muscle spasm and an altered gait, the panel would be speculating that the muscle spasm in one examination was causing an altered gait in another examination done 2 months later.  Therefore the panel agreed that the next higher 20% rating was not justified on this basis.  Additionally, there was no evidence of intervertebral disc syndrome (IVDS) which resulted in 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 panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

Chronic Neck Pain.  According to the STR and MEB NARSUM addendum, the CI’s neck condition began in April 2003 while moving lockers.  Radiographic studies showed degenerative disc disease.  The 4 November 2002 MEB NARSUM examination, 5 months prior to separation, noted complaints of numbness in the CI’s right arm.  Cervical spine ROM measurements were flexion 76 degrees (truncated to the VASRD normal of 45 degrees), and combined cervical ROM of 255 degrees (normal 340).  There was no gross deficit of motor strength and his upper extremity reflexes were normal.  The 18 November 2003 physical therapy ROM evaluation, 4 months prior to separation, showed the same cervical ROM values as the NARSUM.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10% under the analogous 5299-5237 code (cervical spine strain), citing “combined ROM of 285 degrees.”  The VA rated the neck condition 10%, coded 5010 (arthritis, due to trauma), citing ROM criteria, based on the STR.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM greater than 170 degrees but not greater than 335 degrees reported on the NARSUM examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  

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 neck condition.  

Contended PEB Condition:  Mood Disorder.  The panel’s main charge is to assess the fairness of the PEB’s determination that the mood disorder condition was not unfitting.  The panel’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  

The CI had VA treatment for variously diagnosed mental health conditions beginning in August 1998 with two VA hospitalizations and treatment for delusion disorder, adjustment disorder with depressed mood, and psychosis.  The CI was being treated with chronic psychoactive medications and had a third mental health hospitalization 10 March 2003 for a diagnosis of intermittent explosive disorder shortly after he was activated (3 February 2003).  An 11 September 2003 psychiatrist’s memo titled LOD investigation, recommended administrative separation.  

The 12 December 2003 psychiatric NARSUM indicated that the CI’s alcohol dependence was in early remission, and led to considerable military and social and industrial impairment; that the mood disorder (NOS) with elements of posttraumatic stress disorder, depressive disorder and atypical psychotic features, was of mild to moderate severity and also led to considerable impairment; and that the CI also had a mixed personality disorder and a long history of learning and reading disability.  The psychiatrist indicated the global assessment of functioning was 60 (60 – 51, moderate symptoms range).  The psychiatrist indicated that the CI’s mental health condition(s) was medically unacceptable IAW AR 40-501, 3–31 (disorders with psychotic features, 3–32 (mood disorders), and 3–33 (anxiety, somatoform, or dissociative disorders).  The MEB adjudged that the combined multi-axis mental health diagnosis (axis I-axis VI on the MEB) was medically unacceptable.  

The 11 February 2004 psychiatric NARSUM addendum responded to the PEB’s questions on the apparent disconnect between the “mild” mood disorder and the “considerable” impairment, indicating possible symptom compounding due to the CI’s additional problems to include alcoholism, mixed personality disorder and apparent learning disorder.  The psychiatrist stated “in light of the fact that he does not require a mood stabilizing medication other than low-dose Zyprexa that appears to be targeting primarily thought organization and concentration as well as, to a certain extent, impulsivity, it is believed that this challenging case represents a composite of psychiatric symptoms.  Some of these are clearly EPTS and others seem to be consequent to his long career in active duty service.”  

The CI was initially recommended for entry into the DES system for mental health issues and the initial MEB NARSUM (dated 12 December 2003) was for mental health conditions.  The CI had an S4 profile for psychotic disorder NOS, with restriction from weapons access, and the psychiatric NARSUM indicated that the CI’s mental health condition(s) was medically unacceptable IAW AR 40-501, 3–31 (disorders with psychotic features, 3–32 (mood disorders), and 3–33 (anxiety, somatoform, or dissociative disorders)).  

The panel considered the complex overlap between the CI’s mood disorder, other non-disability/non-compensable conditions, changes in mental health diagnoses, and evidence of some conditions existing prior to service (EPTS).  The panel adjudged that there was a preponderance of the evidence that the CI’s mood disorder was separately unfitting.  The panel noted that there was no traumatic event causing the unfitting mental health condition and therefore concluded that application of VASRD §4.129 was not appropriate in this case.  The panel next considered the §4.130 rating at the time of separation.  

The CI had a diagnosed mental health condition and required continuous medication for symptom control that met the 10% rating criteria for mood disorder (9435).  The MEB psychiatrist addendum indicated that symptoms from the mood disorder, absent the non-ratable conditions, were “mild to moderate,” and the panel adjudged that the next higher 30% rating criteria of “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)” was not met due to the mood disorder.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the mood disorder condition, coded 9435.  

Contended PEB Conditions:  Alcohol Dependence and Mixed Personality Disorder.  In accordance with DoDI 1332.38, paragraph E5.1.3.9, these contended conditions do not constitute physical disabilities and are not ratable.  Therefore, the panel has no basis for recommending either condition as unfitting (see above for any overlap with the CI’s mood disorder diagnosis).  After due deliberation in consideration of the preponderance of the evidence, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determinations and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the neck condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended mood disorder condition, the panel unanimously agrees that it was unfitting and recommends a disability rating of 10%, coded 9435 IAW VASRD §4.130.  In the matter of the contended alcohol dependence and personality disorder 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	
Chronic Low Back Pain	5299-5237	10%	
Neck Pain	5299-5237	10%	
Mood Disorder, NOS	9435	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150615, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170007549, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					       
Enclosure