RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01604
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Attack Helicopter Repairer, medically separated for “lumbosacral strain diagnosed as chronic back pain” with a disability rating of 20%.

CI CONTENTION:  “Review all conditions.”  The CI’s 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 – 20081027	VARD - 20091008	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain Diagnosed as Chronic Back Pain	5299-5237	20%	Lumbosacral Strain	5237	0%	STR	
Major Depressive Disorder	EPTS/No PSA	Major Depressive Disorder 	9434	0%	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Lumbosacral Strain.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain began in June 2007 without a precipitating event or trauma, although there was antecedent pain between the shoulder blades that began in March 2007.  X-rays of the thoracic spine on 11 June 2007 showed a levoscoliosis (curvature to the left) of the upper thoracic spine of 8.8 degrees and a scoliosis survey on 18 June 2007 showed very mild dextroscoliosis (curvature to the right) of the lower thoracic spine with an angle T8 and L2 of 5 degrees.  Magnetic resonance imaging (MRI) on 14 October 2007 demonstrated levoscoliosis of the thoracic spine, but was otherwise normal.  A follow-up scoliosis survey demonstrated 4.6 degrees left curvature of the thoracolumbar spine, which was considered to be within normal limits by scoliosis standards.  The CI was evaluated by neurology for memory issues (not in the scope of review) at which time he reported numbness on top of the left foot.  An MRI on 21 April 2008 was normal.  At a pain management evaluation, the CI reported his average pain level as 6-7/10 (10 being the worst pain).  He had been started on Lyrica (pregabalin for nerve pain), but did not have any significant change in symptoms.  On examination there were multiple tender points on palpation of the trapezius bilaterally and interscapular areas along the thoracic paraspinous musculature.  There was tenderness to palpation in the upper to mid paravertebral areas from about L1-L4.  Pain was worse with flexion and twisting motions, but there was no shooting pain into his legs.  Straight leg raising (to determine nerve root irritation) was negative bilaterally.  Muscle strength was 5/5 in the quadriceps and hamstrings bilaterally and sensation was normal.  He was scheduled for lumbar medial branch blocks for the nonradiating axial low back pain and trigger point injections to the trapezius and thoracic paraspinous musculature and Mobic (meloxicam, an NSAID) was prescribed for pain.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty. 

During the 30 May 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 9 months prior to separation, the CI reported back pain from July 2007.  The physical examination showed tenderness to light touch through the mid back without muscle spasms.  Strength of the lower extremities was normal.  Thoracolumbar range of motion (ROM) measurements performed on 16 June 2008 showed an average of three consecutive measurements for flexion was 56 degrees (normal 90), extension 23 degrees (normal 30), left lateral flexion 38 degrees (normal 30), right lateral flexion 41 degrees (normal 30), right lateral rotation 27 degrees (normal 30) and left lateral rotation 26 degrees (normal 30 degrees) for a combined ROM of 200 degrees IAW the VASRD.  All ROMs were limited by pain.  There were no spasms and gait was normal.

The 22 July 2008 MEB NARSUM examination, 7 months before separation, noted complaints of persistent chronic back pain despite receiving epidural steroid injections which provided some palliation.  Physical examination showed tenderness to palpation.  Straight leg raising was negative.  Strength and reflexes were normal.  Sensation was noted to be decreased in the left lower leg compared to the right.  Pain was elicited with motion.  An antalgic gait due to pain and guarding was noted and the CI used a cane.  The examiner referred to the ROMs performed on 16 June 2008.  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 20%, coded 5299-5237 (lumbar spine strain), citing tenderness, but no spasms or guarding with a normal gait and flexion of 56 degrees and a combined ROM of 210 degrees.  The VA rated the lumbosacral strain 0%, coded 5237, citing failure to report to scheduled VA examination.  The panel 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 June 2008 ROM examination.  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 lumbosacral strain condition.  

Major Depressive Disorder (MDD).  According to STR and the MEB NARSUM, the CI had a history of a previous suicide attempt and several past episodes of depression and was being treated for depression and atypical psychotic features since February 2008.  A neurology note in April 2008 indicated the CI had memory loss for 2-3 months and he was followed in mental health for unhappiness and depression.  The CI described visual hallucinations with Ambien (zolpidem for insomnia) and decreased concentration/attention.  The neurologist felt memory loss was a common finding with depression and an MRI of the brain was within normal limits.  At a behavioral health visit on 22 May 2008, the CI noted depression resulted from his changed role at work due to being on medications, which precluded him from being around aircraft.  At a psychiatric clinic appointment he reported getting better and a mental status examination was normal.  At a psychiatry visit on 8 August 2008 the CI presented with cognitive changes, mood/anxiety symptoms, and sudden onset of psychosis, not typical for a mood disorder or even most psychiatric forms of psychosis.  However his constellation of physical signs/symptoms and laboratory findings were consistent with B12 deficiency.  The psychosis largely resolved other than residual suspiciousness/mild paranoia.  Depressive and anxiety symptoms also improved with psychiatric medication management; and, B12 replacement was initiated.  In early February 2009 the CI was hospitalized as a suicide risk after he took an overdose of sleeping pills, but “not enough to do the job.”

During the 30 May 2008 MEB examination the CI reported depression since August 2007 and he received counseling since May 2008.  The examiner noted the CI was psychiatrically grossly normal with good eye contact and no overt signs of severe depression.  At an 18 September 2008 psychiatric evaluation the CI noted several past episodes of depression and had treatment for depression and atypical psychotic features since February 2008 with medication management and individual and marital counseling.  At the counseling he was able to share with his wife his tremendous stress of having an addiction.  Since having sought treatment his mood markedly improved; his somatic complaints were less intense; and he denied any psychotic symptoms or suicidal ideation since 20 August 2008.  However, he admitted that an underlying suspiciousness remained unchanged since early childhood and he had features of a paranoid personality disorder.  The CI had no apparent distress during a mental status examination.  He was alert and oriented time four, had good eye contact, was mildly unsteady with a cane, and had no psychomotor abnormalities.  His speech was of a normal rate, rhythm and tone and his cooperation was good and he was easily engaged.  His thought process was logical.  His mood was “pretty good,” and affect was full range and congruent.  He denied suicidal or homicidal ideations, auditory, or visual hallucinations, but admitted baseline suspiciousness.  Concentration was not appreciably impaired; memory was intact; insight was fair; and judgment was good.  His symptoms of major depressive disorder were relatively mild and he no longer had bizarre perceptions and no suicidal ideation for 3-4 weeks.  The examiner noted the CI at the time of the examination did not appear to have any Axis I symptoms which were impairing to military service; however, he had a history of having multiple depressive episodes with the last episode involved psychotic features and suicidal ideation as well as a history of attempted suicide in his youth.  He also had maladaptive perceptions of reality and related behavior associated with a paranoid personality disorder.  Therefore, the examiner felt the CI’s prognosis was guarded with a high probability that he would continue to have recurrent depressive episodes which might impair his military service.  His occupational capacity was categorized as “occasional decrease in work efficiency, and intermittent periods of inability to perform occupational tasks.”  The Axis I diagnosis was MDD, recurrent severe, with psychotic features with symptoms of depressed mood, insomnia, poor appetite, decreased concentration which appeared as short-term memory impairment, excessive guilt, suicidal ideation, hallucinations and paranoid delusions.  The examiner noted the stressors to be marital discord and decline in physical health with definite social/industrial impairment.  The condition existed prior to service although not at the level of severity of his recent episode.  Military impairment was marked, but not service aggravated according to the examiner.  The CI’s Global Assessment of Function (GAF) score was 40 (some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood).  

The 18 September 2008 MEB NARSUM psychiatric examination, 5 months prior to separation, noted complaints the CI had “been diagnosed with emotionally-induced psychoses.”  The CI noted his mood was “usually I’m pretty happy now.” His sleep was “great last night with half a pill of Elavil.”  His concentration was “pretty horrible, but its [it has] always been horrible my whole life.”  His energy was “really low.  I like to sleep a lot,” and he denied self-harm “last time was three or four months ago.”  He no longer appreciated memory impairment: “It was probably just my concentration and stress.”  He denied having any bizarre perceptions, but admitted to “paranoia since I was a kid.”  The CI was referred to the PEB for final disposition and was recommended to continue his current psychiatric treatment plan.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB determined the MDD with symptoms of depressed mood, insomnia, poor appetite, decreased concentration which appeared as short-term memory impairment, excessive guilt, suicidal ideation, hallucinations, and paranoid delusions, existed prior to service, coded 9434 (major depressive disorder), citing the CI admitted and the psychiatrist confirmed that he had this condition for years and his depressive episodes were associated with/triggered by situation stressors, most recently his marriage.  His occupational impairment was characterized as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. There was compelling evidence that the condition was EPTS and was not permanently aggravated beyond natural progress by such service.  The MDD existed for many years and was triggered by situational stressors without any evidence that any military service events induced depressive episodes.  The VA rated the MDD 0% coded 9434 (major depressive disorder), citing failure to report to scheduled VA examination.  The CI’s condition existed prior to service and the panel majority was unable to find a significant stressor related to the CI’s military service to have exacerbated or induced a burden sufficient to have permanently altered or worsened the natural progression of the major depressive disorder.  Therefore, 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.  

BOARD FINDINGS:  In the matter of the lumbosacral strain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the major depressive disorder condition and IAW VASRD §4.130, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150625, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

Minority Opinion.  The minority voter notes that the service must meet the clear and unmistakable standard when it comes to service aggravation.  While there is no doubt the CI’s condition existed prior to service, simply stated, there were events that occurred during service that aggravated the CI’s condition.  The psychiatrist noted the stressors to be marital discord and decline in physical health with definite social/industrial impairment and while the CI’s condition existed prior to service, it was not at the level of severity of his recent episode.  Nevertheless, while the CI’s marriage was a stressor, he did have lower back pain which required removal from his job as did the medication prescribed for the depression.  Clearly the medical condition played a role in contributing to his depression as did the B12 deficiency, while was subsequently treated.  Therefore, the unfitting depression did have a service aggravation component, albeit small relative to his pre-existing proclivity to depression, but nevertheless, was sufficient to be considered service aggravating and clear beyond the natural course of the disease.  Therefore, the CI warrants a rating.  A 10% rating requires “Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication,” whereas a 30% rating requires “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), 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 psychiatrist noted the CI did have occasional decrease in work efficiency, and intermittent periods of inability to perform occupational tasks as well as symptoms of a depressed mood, suspiciousness, sleep impairment, and mild memory loss, which comport with a 30% rating; however, since the majority of the condition’s manifestations did exist prior to enlistment, a deduction of 20% is not unreasonable.  Therefore, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the minority voter recommends a disability rating of 10% for the major depressive disorder condition, coded 9434.  

Therefore, the minority voter recommends the adjudication be amended as follows:

In the matter of the major depression disorder condition, the panel recommends a disability rating of 10%, coded 9434 IAW VASRD §4.130.  

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	
Lumbosacral Strain	5299-5237	20%	
Major Depressive Disorder	9434	10%	
COMBINED	30%	

AR20170008558, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

Sincerely,