RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02511
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040625

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Healthcare Specialist, medically separated for “panic disorder” and “neck and back pain,” with a combined disability rating of 20%.

CI CONTENTION:  The CI submitted an extensive contention requesting that the panel review her “panic disorder (including major depressive disorder),” “neck and back pain,” and “migraine headaches.”  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 - 20040518	VARD - 20041029	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Panic Disorder w/o Agoraphobia	9412	10%	Panic Disorder with Agoraphobia	9412	70%	20040921	
Major Depressive Disorder	9434	--%					
Neck and Back Pain	5237	10%	Chronic Lumbar Strain	5237	20%	20040825	
			Cervical Strain	5237	20%	20040825	
Migraine Headaches	8100	--%	Migraine Headaches	8100	NSC	20040825	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:

Panic Disorder without Agoraphobia.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) mental health (MH) narrative summary (NARSUM), the CI’s panic disorder symptoms without agoraphobia began in February 2003 of non-traumatic origin.  Her panic disorder symptoms improved with medication.  However, the condition did not improve sufficient enough to allow continued service, therefore, she was referred to the MEB.  The MEB forwarded panic disorder without agoraphobia and major depressive disorder (which was recorded as existed prior to service (EPTS)) for PEB adjudication.

At the MEB NARSUM dated 5 December 2003, 7 months prior to separation, the CI reported a history of recurrent episodes with no known consistent precipitant, of acute anxiety demonstrated by shortness of breath, nausea, and feelings of “going crazy.”  She reported these episodes occurred 2 to 3 times per week.  Over the course of several months, the CI was treated with various classes of medications and her symptoms improved.  The CI reported childhood history of psychiatric treatment with psychiatrist, and multiple incidents of physical and sexual abuse during childhood.  At the time of the NARSUM, the CI noted mild problems with insomnia and occasional panic attacks.  The mental status examination (MSE) documented evidence of mild psychomotor retardation (general slowing in movement, speech), slightly restricted affect with periods of tearfulness, and “vague suicidal ideation without plan”, and “vague” elements of psychotic thought content, although thought processes were documented as logical and goal directed.  Judgment was not impaired.  The diagnoses of panic disorder without agoraphobia, “treated and improved” and major depressive disorder (MDD), recurrent, “treated and improved” EPTS, not service aggravated, and were documented.  A Global Assessment of Functioning (GAF) score of 60 for moderate to mild symptoms and or impairment was assessed.  The psychiatrist opined that the CI’s prognosis was favorable if she continued treatment.

During the 4 March 2004, 4 months before separation, the CI was admitted to the psychiatry inpatient unit overnight after having suicidal thoughts that occurred after the CI went out drinking with a friend who was having relationship problems.  The examiner documented “the patient had a history of depression since age 19” and recorded prior suicide attempts at age 16, 18, 21, and 24; all by over the counter drug overdose.  It was noted that she never reported any of these attempts.

At the 21 September 2004 VA Compensation and Pension (C&P) Mental Disorder examination, 3 months post-separation, the CI reported receiving MH treatment since separation, but had not received emergency room treatment.  The CI reported symptoms related to childhood abuse, daily panic attacks lasting 10 to 45 minutes, and depression.  The CI was unemployed stating she could not be around a lot of people or she would have a panic attack.  She had no social relationships stating she did not talk to anybody.  The CI was in a good live-in relationship caring for twin 4 year old girls.  The MSE recorded no impairments of the thought process or communication, psychotic symptoms, suicidal or homicidal thoughts, and cognitive functioning.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the panic disorder condition at 10%, coded 9412 (panic disorder), and determined the MDD condition was EPTS but not permanently service aggravated.  The PEB made no EPTS deduction.  The VA rated the panic disorder with agoraphobia condition at 70%, also coded 9412, based on the C&P examination 3 months after separation, citing occupational and social impairment with deficiencies in most areas.

The panel considered the provisions of VASRD §4.129 (Mental disorders due to traumatic stress) and determined the CI’s mental health evidence did not support application of §4.129.

The panel next proceeded with the rating recommendation IAW VARSD §4.130.  Regardless of mental health diagnosis(s), 4.130 rating is based on symptoms independent of the diagnosis; therefore, all mental health symptoms (panic attacks or depression) are considered in one single rating.

The panel considered the commander’s statement approximately 3 months before separation which implicated the panic disorder diagnosis, but did not document any work-related MH symptoms or a panic attack occurring at work.  The commander stated the CI was unable to perform physical duties such as marching and prolonged standing; the CI was only able to run at her own pace.

The panel also considered the MEB NARSUM examination, psychiatry inpatient, and C&P evaluation.  The NARSUM, 7 months prior to separation, recorded significant improvement of the CI’s panic disorder and MDD with the use of medications.  The psychiatry inpatient record, 4 months before separation, documented the diagnosis of adjustment disorder and panic attacks, noting the CI reported an increased in panic attacks without specifying frequency.  The CI also reported sleep impairment that began in 2002, which was assessed as secondary to back pain.  The C&P Mental Disorder examination, 3 months after separation, documented the CI’s ability to complete activities of daily living and meet family responsibilities; caring for 4 year old twin girls.  There was no evidence of impaired orientation, thought process or cognitive functioning, psychotic symptoms, suicidal or homicidal thoughts, and no legal history of any kind.  Panel members agreed, based on the available evidence a 70%, 50% or 30% disability rating were not justified given the absence of impairment in thinking or judgment, no ER visits, no documented MH symptoms interfering with her duty performance, and the ability to care for 4 year old twin girls.  After careful deliberations, the panel agreed, the CI’s disability more accurately reflects the 10% description, “occupational and social impairment due to mild or transient symptoms which decrease work efficiency only during periods of significant stress, or symptoms controlled by continuous medication.  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 panic disorder condition.

Neck and Back.  According to the STR and MEB NARSUM, the CI low back condition began approximately in 1999 after falling on her tail bone.  The CI’s neck condition began approximately in May 2001 after a motor vehicle.  Radiographic imagining (X-ray and MRI) were unremarkable.

At the 30 March 2004 MEB NARSUM examination, 3 months prior to separation, the CI reported chronic low back and neck pain.  Physical examination recorded the absence of neck or back deformities or atrophy.  There was spinal tenderness from the neck to the low back muscles.  Muscle spasm was not addressed.  Cervical spine range of motion (ROM) was flexion at 20 degrees (normal 45) and combined ROM was 205 degrees (normal 340) with pain-limited motion.  Lumbar spine ROM was flexion to 40 degrees (normal 90) and combined ROM was 170 (normal 240) with pain-limited motion.  Evidence of radiculopathy was absent.  She had normal upper and lower extremity motor strength and sensory examinations.

During the 10 May 2004, physical therapy examination, 6 weeks prior to separation, cervical spine ROM was flexion to 45 degrees and combined ROM of 247 degrees; painful motion was not addressed.  Lumbar ROM was flexion to 25 degrees and combined ROM was 120 degrees; painful motion was not addressed.

At the 25 August 2004 C&P General examination, 2 months after separation, the CI reported recurrent neck and low back pain since 1999 without radiating symptoms.  The pain was not debilitating; it did not cause weakness, fatigability, decreased endurance incoordination or flare-ups.  Physical examination revealed a normal gait, absence of neurological deficits, and no neck or back muscle spasms.  There was tenderness throughout the spine.  Cervical spine ROM was forward flexion to 30 degrees and combined ROM was 175 degrees with painful motion.  Lumbar spine ROM was flexion to 45 degrees and combined ROM was 160 degrees with painful motion.

The panel directed its attention to its rating recommendation based on the above evidence.  The PEB rated the back and neck conditions at 10% combined, coded 5237 (lumbosacral and cervical strain), citing pain limited motion.  The VA rated the back and neck conditions at 20% each, also coded 5237, based on the C&P examination 2 months after separation, citing limitation of motion.

The PEB combined the low back pain with radicular symptoms and cervical degenerative disk disease under a single service disability rating, coded 5237 and rated 0%.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and that there was no need for separate fitness adjudications.  The panel noted that “bundling,” the combining of two or more major joints, may be permissible under VASRD criteria of 5003, and that this approach does not necessarily compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’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 panel 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 panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.

The panel concluded there was not a preponderance of evidence in the service records which overcame the presumption that either the back or neck was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting back and neck conditions at the time of separation.

The panel first considered the neck rating.  The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 40 degrees) and combined ROM (greater than 170 degrees but not greater than 335 degrees), as reported on the  MEB NARSUM and physical therapy examinations indicative of the preponderance of evidence.  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 (IVDS) with incapacitating episodes which would provide for a higher rating under that formula.

The panel next considered the back rating.  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), as reported on the MEB NARSUM and VA examinations indicative of the preponderance of evidence.  There was no documentation of intervertebral disc syndrome (IVDS) 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 recommends a disability rating of 10% for the neck condition; and a disability rating of 20% for the back condition, both coded 5237.

Migraine Headaches.  According to the STR, MEB NARSUM and the C&P examinations, the CI’s migraine headache condition was EPTS which began during her teen years.  The panel agreed with the PEB’s EPTS determination.

The panel next considered whether or not the condition was permanently service aggravated.  A presumption of service aggravation 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 panel considered the evidence in its totality and was unable to find justification to support a change in the PEB’s decision in this matter.  The condition was successfully treated with headache-abortive medication, was never profiled or implicated by the commander’s statement.  There was no performance-based evidence from the record that the condition interfered with satisfactory duty performance at separation.  After due deliberation, considering all of the evidence the Board concluded the EPTS migraine headache condition was not permanently aggravated by service beyond the natural progression of the condition and therefore recommends no change in the PEB’s adjudication.

BOARD FINDINGS:  In the matter of the panic disorder without agoraphobia condition and IAW VASRD §4.130 the panel recommends no change in the PEB adjudication.  In the matter of the neck pain condition, the panel recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the back pain condition, the panel recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the migraine headache condition, the panel recommends no change from the PEB determination as EPTS without permanent service aggravation.  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	
Panic Disorder without Agoraphobia	9412	10%	
Neck Pain	5237	10%	
Back Pain	5237	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20151030, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170013274, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	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 40% 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), XXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure