RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00442
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20060706

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Motor Transport Operator, medically separated from the Temporary Disability Retired List (TDRL) for “posttraumatic stress disorder,” “low back pain,” and “neck pain,” rated 10%, 0%, and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  His ratings should be increased in accordance with applicable ratings criteria and commensurate with higher ratings applied by the VA within 12 months of removal from the TDRL.  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 - 20060310	VARD - 20070116	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Posttraumatic Stress Disorder	9411	10%	Posttraumatic Stress Disorder	9411	30%	20061101	
Low Back Pain	5299-5242	0%	Lumbosacral Strain, Myositis, Herniated Nucleus Pulposus At L5-S I Level.	5021-5243	20%	20061116	
Neck Pain	5299-5242	5299-5242	Cervical Strain, Myositis; Herniated Nucleus Pulposus C5-C6 Level	5021-5243	30%	20061116	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Posttraumatic Stress Disorder (PTSD).  According to the service record, the CI was placed on the TDRL in August 2004 with PTSD rated at 10%.  In October 2011, as a result of the settlement agreement in the Sabo, et al, class action lawsuit, that rating was retroactively increased to 50%.  
The 13 December 2005 TDRL Evaluation (PTSD), 7 months prior to TDRL removal, noted complaints of difficulty with sleep after exposure to terrorist-related materials, recurrent nightmares of Iraq and irritability which strained his marital relations.  He did not endorse depressive symptoms.  He was receiving treatment with a psychiatrist once per six months for medication management.  He reported he took anti-anxiety medication on a regular basis, intermittent use of anti-depression medication and only when he felt depressed.  He denied the use of the sleep aide due to side effects.  He had not been in counseling since TDRL placement and had not been hospitalized psychiatrically.  He was employed, lived with his mother, and was separated from his second wife.  Mental status examination (MSE) was unremarkable.  Diagnoses of PTSD by history, in partial remission, mild and major depressive disorder (MDD) by history in full remission, not disqualifying and not ratable were rendered.  

The 19 January 2006 progress noted documented continued panic attacks, dreams and nightmares, recurring exposure to news due to his work on a newspaper.  He was treated with an anxiolytic medication three times per day with a GAF score of 65 (mild symptoms, impairment.) The 23 January 2006 ER note documented discharge from cardio clinic and palpitations.  

At the 8 November 2006 VA Compensation and Pension (C&P) evaluation, 4 months after TDRL removal, the CI reported severe anxiety, panic attacks, irritability, nightmares of his Iraq war experience, sleep difficulties, chronic anger, poor sexual desire and sudden/rapid verbal aggression towards his wife and mother.  He reported chest pains, palpitations, and muscle spasms and had been diagnosed with fibrillations.  He also reported a history of rapid heartbeats, palpitations and a diagnosis of paroxysmal atrial fibrillation, a condition that can be mistaken for panic attacks.  He was lonely and had no one to talk to.  He felt guilty and responsible for the death of a soldier in Iraq.  The CI said he was the victim of peers’ jokes at work.  He reported frequent absence from his work due to the PTSD.  He was having problems at work with absenteeism and walking off the job.  He felt he had reasonable accommodation due to his emotional state and physical limitations.  He had mood stabilizing, anti-depression and blood pressure medications.  His last prescription was filled August 2006.  He attended bible study, played drums at church and lived with his wife and son, although he was having serious problems with his wife that might lead to divorce.  He noted he was non-compliant with medications due to fear of a reaction.  

MSE showed depressed mood with blunted affect.  Memory was fair.  He reacted to shadows, thinking it was the devil.  A diagnosis of PTSD was rendered with a Global Assessment of Functioning (GAF) score of 60 (moderate, bordering on mild symptoms, impairment.)  The psychiatrist conducted the initial psychiatric evaluation in January 2005 and had diagnosed PTSD at that time, assigning a functional score of 75 (transient symptoms, slight impairment.)  He concluded the CI had progressive social, marital, family and labor impairment due to PTSD and he continued to be anxious, depressed and in need of continuous psychiatric treatment.  

The panel directed attention to its rating recommendation based on the above evidence.  The formal PEB rated the PTSD condition 10%, coded 9411 (posttraumatic stress disorder), citing employment and mild industrial impairment at the time of TDRL removal.  The VA rated the PTSD condition 30%, coded 9411, (posttraumatic stress disorder), based on the C&P examination 4 months after TDRL removal, citing a Global Assessment of Functioning (GAF) score of 60 denoting moderate symptoms of anxiety and depression requiring continuous psychiatric treatment along with moderate impairment in social and occupational activities.
The most proximate source of comprehensive evidence on which to base the permanent rating was the VA examination, 4 months post-separation.  The CI reported continued anxiety (inclusive of panic attacks,) depression, nightmares, sleep difficulties and other mental health problems.  However, records show a separate diagnosis of panic disorder.  The CI had a number of stressors but was able to work, although he had frequent absences, and attended church.  He attributed the absences to PTSD.  The psychiatrist who conducted the initial evaluation in January 2005 was conducting the C&P examination nearly 2 years later and assigned a GAF score 15 points lower than the initial score, placing him in the moderate zone of disability.  He stated the CI had progressive social, marital and occupational impairment due to PTSD, continued to be extremely anxious, depressed and in need of continuous psychiatric treatment.  The panel agreed the CI met criteria for a 30% disability rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the PTSD condition, coded 9411.  

Low Back Pain.  According to the service record, the CI was placed on the TDRL in August 2004 with low back pain rated at 10%.  The 21 September 2005 TDRL Evaluation (Ortho), 10 months prior to TDRL removal, noted complaints of multiple frequent low back spasms and pain.  He reported pain radiating from his posterior buttocks and extending to the lateral aspect of his thigh and foot.  He had pain many times per week that ranged from 0/10 to 10/10.  He could not seek manual labor and was unable to lift greater than 10 pounds.  He worked as a manager for a newspaper.  He took anti-inflammatory medications periodically but no narcotic medication.  He described the quality of his pain as stable and rehabilitation had plateaued.  He denied motor weakness.  Physical examination showed a near normal gait, no focal motor weakness in the lower extremities.  He had 5/5 motor strength in all extremities and could tip-toe raise bilaterally.  Neurological exam was normal except radicular pain with left straight leg raising.  He had hamstring tightness on the right.  He could forward flex within 2 cm of his ankles and could rotate symmetrically about 80 degrees.  Range of Motion (ROM) showed flexion to 90 degrees (normal) and extension to 15 degrees (30 normal) with good trunk rotation, arm swing, step length.  Sit to stand transitions did not require upper extremity support.  X-rays showed lumbar mild degenerative changes with preservation of the disc spaces.  

At the 16 November 2005 VA Compensation and Pension (C&P) evaluation, 4 months after TDRL removal, the CI reported lumbosacral pain, radiating to both lower extremities.  Pain usually lasted 10-12 hours per day with intensity of 7/10.  He took an anti-inflammatory medication with mild relief.  He reported flare-ups with severity of 9/10 at least once or twice per month.  Precipitating factors included a cloudy or rainy day, over the head activities with prolonged standing or sitting.  He walked without assistive devices or lumbosacral brace.  He could walk for 10 to 40 minutes, was not unsteady and denied falls.  He was independent in self-care and worked as described above.  Neuroimaging in 2003 showed C5-C6 disk herniation and herniated nucleus pulposus at L5-S1.  Electromyogram (EMG) May 2005 was normal for lumbosacral areas.  Physical examination of the thoracolumbar spine by goniometer showed forward flexion to 50 degrees (normal 90 degrees) with functional loss of 40 degrees due to pain and extension to 15 degrees (normal 30 degrees) with functional loss of 15 degrees due to pain.  There was tenderness at the paravertebral muscles with spasm with a reversed lordosis.  He barely repetitively performed flexion.  Neurological and motor examinations were normal.  There was no evidence of atrophy in the lower extremities.  There were no postural abnormalities nor fixed deformities.  

The panel directed attention to its rating recommendation based on the above evidence.  The formal PEB rated the back condition 0%, coded 5299-5242 at TDRL removal (analogous to degenerative arthritis of the spine), citing thoracolumbar combined range of motion over 235 degrees.  The VA rated the back condition 20%, coded 5021-5243, (intervertebral disc syndrome), based on the C&P examination 4 months after TDRL removal, citing limitation of forward flexion.  

Because the VA examination was closer to the time of separation and was a more complete examination, it was assigned higher probative value than the MEB NARSUM examination 10 months prior to separation.  The limitation of flexion noted on the VA examination supported a 20% rating for forward flexion greater than 30 degrees but not greater than 60 degrees.  The examiner also found evidence of a reverse lordosis.  The panel also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the criteria for a minimal 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 20% for the chronic low back pain condition.  

Neck Pain.  According to the STR, the CI was placed on the TDRL in August 2004 with neck pain rated at 10%.  The 21 September 2005 TDRL Evaluation (Ortho), 10 months prior to TDRL removal, noted complaints of multiple frequent neck spasms and pain.  The neck pain was similar without radiation.  He took anti-inflammatory medications periodically but no narcotic medication.  He described the quality of his pain as stable and rehabilitation had plateaued.  He denied motor weakness.  Physical examination showed a near normal gait, no focal motor weakness in the upper extremities.  He had 5/5 motor strength in all extremities.  His cervical spine showed normal supple motion with flexion to 25 degrees (normal 45) and extension to 25 degrees (normal 45).  The decreased ROM was due to pain, primarily from the cervical spine but also some discomfort from the low back.  X-rays showed mild C5-C6-7 degenerative spondylolysis.

At the 16 November 2006 C&P evaluation, 4 months after TDRL removal, the CI reported cervical pain radiating to both upper extremities.  Physical examination of the cervical spine by goniometer showed forward flexion to 35 degrees with functional loss of 10 degrees due to pain and extension to 30 degrees with functional loss of 10 degrees due to pain.  There was tenderness at the cervical paravertebral muscles with spasm.  He barely repetitively performed flexion.  Neurological and motor examinations were normal.  There was no evidence of atrophy in the upper extremities.  EMG May 2005 was normal for cervical areas.  

The panel directed attention to its rating recommendation based on the above evidence.  The formal PEB rated the neck condition 0%, coded 5299-5242 at TDRL removal (analogous to degenerative arthritis of the spine), citing cervical ROM limited by pain.  The VA rated the neck condition 30%, coded 5021-5243, (intervertebral disc syndrome), based on the C&P examination 4 months after TDRL removal, citing limitation of motion and functional loss.  Under the VASRD rating formula for the spine, a 20% rating is warranted for forward flexion greater than 15 degrees but not greater than 30 degrees; combined range of motion not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  The ROM on the service exam supported a 20% rating, but the VA examination flexion warranted 10%.  Board members assigned greater probative value to the VA examination because of its proximity to separation, but debated if other findings supported a higher rating.  There was no requisite link of an abnormal gait to guarding or spasm, and therefore the next higher 20% rating was not supported on this basis.    

The panel also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the criteria for a minimal rating under that formula.  The panel finally deliberated if additional disability was justified for peripheral nerve impairment.  The EMG showed no evidence of nerve issues arising from the cervical spine; and examinations documented no muscle weakness.  There was no evidence in this case of functional impairment attributable to peripheral neuropathy.  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, coded 5299-5242.  

BOARD FINDINGS:  In the matter of the PTSD condition, the panel unanimously recommends a disability rating of 30%, coded 9411 IAW VASRD §4.130.  In the matter of the back condition, the panel unanimously recommends a disability rating of 20%, coded 5299-5242 IAW VASRD §4.71a.  
In the matter of the neck condition, the panel unanimously recommends a disability rating of 10%, coded 5299-5242 IAW VASRD §4.71a.  There are 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	
Posttraumatic Stress Disorder	9411	30%	
Low Back Pain	5299-5242	20%	
Neck Pain	5299-5242	10%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160705, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170015625, 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 50% effective the date of your medical separation for disability with Reserve retirement.  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