RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00696
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040720

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Combat Engineer, medically separated for “chronic back pain” and “left L5 radiculopathy” rated 10% each with a combined disability rating of 20%. “Major depressive disorder [MDD]” was considered to have existed prior to service (EPTS) without service aggravation, and was not rated. 

CI CONTENTION:  “Review all conditions.”  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 - 20040709	VARD –20060405	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5243	10%	Degenerative Disc Disease, Lumbar Spine	5243	20%	20050808	
Left L5 Radiculopathy…	5243-8520	10%	Radiculopathy, Left Lower Extremity	8520	10%		
MDD	9434	EPTS	Depression	9434	NSC*	20050803	
Hypertension	Not Unfitting	Hypertension with Mild Heart Cardiomegaly	7101	NSC	20050808	
Alcohol Abuse		No VA Placement (See 9434 Above)	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	
* VARD dated 20140617 indicated a clear and unmistakable error on initially denying service connection for depression, and awarded a 10% rating coded 9433 effective 20040721.  

ANALYSIS SUMMARY:  

Chronic Back Pain and Radiculopathy.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain and left leg radiculopathy conditions began in March 2003 after falling in a foxhole.  A 14 October 2003 lumbar spine MRI revealed a large L4-L5 disc herniation (HNP) with moderate to severe spinal stenosis and impingement on the left L5 nerve root more than the right.  There was also mild disc disease at L5-S1.  A neurosurgery consult recommended surgery and the CI was planning on having his surgery performed through the VA after exiting the military.  

During the 19 December 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported back pain radiating down the legs with difficulty walking and sleeping.  Physical examination showed a slowed gait and lumbosacral tenderness.  There was limited lumbar spine flexion and extension.  Reflexes were abnormally brisk (3+) and there was decreased strength in both legs (worse in the left leg) secondary to pain.  There was decreased sensory 2-point discrimination in the left leg, and straight leg raise (SLR) was positive for radicular symptoms.  

The 6 January 2004 electrodiagnostic testing (EMG/NCS) showed evidence of neurologic injury, on the left side.  The interpretation was "chronic L4-L5 lumbar radiculopathies on the left, moderate to severe (active degenerative changes were present); and chronic L5-S1 lumbar radiculopathies on the left, mild in degree."  

The 5 February 2004 MEB NARSUM examination, 6 months prior to separation, noted complaints of severe constant back and leg pain, constant numbness and weakness in his left lower extremity more than his right lower extremity.  Physical examination showed a painful gait.  Spine range of motion (ROM) measured by goniometer showed flexion 10 degrees (normal 90), with extension and lateral bending each 5 degrees (normal 30).  The examiner stated that the CI “is unable to rotate secondary to pain … (with) severe pain with attempts at examination.”  The CI had positive SLR with numbness, weakness and pain which was bilateral and severe, particularly in the left leg.  There was muscle weakness of 3/5 on the left leg and 4/5 on the right leg, including the calf and thigh (EHL anterior tibialis, gastroc-soleus, quadriceps and hamstrings).  There was sensory loss over the foot, “plantar greater than dorsal particularly on the left side.”  Reflexes were symmetric with above normal (3+) knee and normal (2+) Achilles reflexes.  There were no non-physiologic findings (Waddell’s 0/5).  

At the 14 January 2005 VA pain clinic evaluation, 6 months after separation, the CI related continued back pain and predominately left leg radiculopathy without weakness.  Physical examination showed lower back tenderness with muscle spasm and an abnormal gait.  Strength and reflexes were normal.  SLR testing was positive on the left.  An epidural steroid injection was recommended and accomplished on 23 February 2005.  

At the 8 August 2005 VA Compensation and Pension (C&P) evaluation, 13 months after separation, the CI reported pain in the lower left back and sacrum that radiated down his leg to the toes.  Pain was worse with bending and injections and medication provided only partial relief.  He reported use of a cane but was not using it at the examination.  He denied unsteadiness or falling and could perform all his activities of daily living except that he had to have some help with dressing, especially putting on shoes and socks.  Physical examination showed a normal gait without limping.  ROM was forward flexion to 50 degrees (normal 90) and combined ROM of 110 degrees (normal 240).  There was complaint of pain with motion and left thigh rotation caused back pain.  There was decreased sensation in the left leg with “virtual absence of sensation at the toes on the left side.”  Motor function was normal and symmetric in the lower extremities.  An MRI from 28 June 2005 was interpreted as showing severe narrowing at L4-5 with disk prominence indenting the thecal sac on the left.  

The panel directed attention to its rating recommendations for the chronic back pain and the left L5 radiculopathy conditions based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome [IVDS]), citing tenderness and ROM limited by pain, with likely application of the US Army Physical Disability Agency pain policy.  The VA rated the back condition 20%, coded 5243, based on the C&P examination 13 months after separation and subsequent medical opinion, citing ROM criteria.  

The panel deliberated the probative value of the multiple examinations in evidence.  The NARSUM examination was the closest comprehensive evaluation to the date of separation, however the totality of the record did not align with the significantly limited forward flexion noted on that single examination.  The post-separation VA evidence clearly supported a 20% rating for either “muscle spasm or guarding severe enough to result in an abnormal gait” at the VA pain clinic, or for ROM criteria at the C&P examination.  There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  The panel agreed that a 20% rating, but no higher, was justified for combined ROM (not greater than 120 degrees) and/or muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, as reported on the NARSUM, VA pain clinic and C&P examinations.  

The PEB rated the left L5 radiculopathy 10%, coded 5243-8520 (IVDS- sciatic nerve, incomplete paralysis), citing pain, weakness and diminished sensation.  The VA also rated the left lower extremity radiculopathy condition 10%, coded 8520, based on the C&P examination 13 months after separation, citing left leg decreased sensation and incomplete paralysis below the knee which was mild.  

There was no evidence of foot drop or marked muscle atrophy of the left leg for any rating above the “moderately severe” (40%) disability level.  The panel deliberated if the CI’s peripheral nerve disability was closer to the “moderately severe” (40%), “severe” (20%) or “mild” (10%) disability level.  The NARSUM noted 3/5 weakness to multiple muscles in the left leg, severe pain with attempt at examination, and decreased sensation in the left foot, along with EMG/NCS testing showing moderate to severe L4-L5 radiculopathy.  The panel considered the possibility of confounding pain-limited or effort-dependent weakness from nerve-related muscle weakness and noted the neurologist’s documentation of 4/5 left lower leg weakness 1 month prior to the NARSUM examination as well as the abnormal EMG/NCS.  The panel adjudged that the CI’s weakness, pain, and diminished sensation most closely approximated the “moderate” (20%) disability picture at separation.  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 left L5 radiculopathy condition, coded 5243-8520.  

Contended PEB Conditions:  MDD, Alcohol Abuse and Hypertension. MDD. The panel’s main charge is to assess the fairness of the PEB’s determination that the MDD condition was EPTS without permanent service aggravation (PSA) and therefore not compensable, although adjudged by the PEB as unfitting.  

According to the STR and MEB mental health (MH) NARSUM, the CI’s MDD condition began in August 2003.  He complained of hearing his mother’s voice when falling asleep, was diagnosed with MDD, and started on Prozac.  The CI denied past treatment or diagnosis of mental illness (and his entry physical from 1992 was negative for any MH treatment or diagnosis).  The CI complained of anxiety and attended group (therapy) and he continued medication with a good response.  The CI also had been drinking more and reported a past problem with alcohol.  

The MEB MH NARSUM examination on 2 February 2004, 6 months prior to separation, noted complaints of "I feel all tensed up and I can't sit still, a lot of anxiety.”  Past psychiatric history included “… a history of trauma that occurred at the age of 9. Apparently he had to choose between his parents and felt very badly about it.  His parents were getting divorced.  He reports that his mother, stepfather and some other relatives were all killed in a car accident.  This accident happened about three years ago.  He has never discussed this with anybody.”  

The mental status examination (MSE) documented an anxious mood with full affect, and was silent regarding any other abnormal findings.  Present status was noted as having a good response to medication, improved concentration, being more relaxed and able to get his work done.  The CI had decreased his alcohol consumption and was attending drug and alcohol education sessions.  The diagnosis was MDD as manifested by poor concentration, sleep, and work performance, along with weight gain, anxiety symptoms, lack of motivation, and sexual problems.  Impairment for social and industrial adaptability was “definite.”  The psychiatrist indicated that the MDD was not EPTS.  The additional diagnosis of alcohol abuse was EPTS, and the Global Assessment of Functioning (GAF) score was 70 (high end of mild symptom range).  

At the 3 August 2005 C&P mental disorder evaluation, 13 months after separation, the CI reported intermittent depressed mood, weight gain, fatigue and low self-esteem.  History noted VA treatment beginning in February 2005 where the CI reported that he began feeling depressed as a child.  He again noted the trauma of having to choose a parent to live with at age 9, how he chose to live with his father and then the loss of his mother, stepfather, and brother in an automobile accident in 1996.  He also reported feeling guilty about not being able to go to Iraq and that “… he let his fellow soldiers down.  He was diagnosed with dysthymic disorder and mood disorder due to a general medical condition.”  Medication (Sertraline) was increased and at a follow-up appointment in May 2005, the CI reported an improvement in mood and sleep, and decreased irritability.  There was no psychiatric follow-up, and medication was managed by his primary care physician.  

The MSE was notable only for a “below normal” mood and a restricted and slightly irritable affect.  There was no active suicidal ideation, delusional or hallucinatory symptoms, or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment or other abnormality.  The diagnoses were dysthymic disorder, MDD, and alcohol abuse in remission.  Symptoms were stated as mild that “result in only minor impairment in social and occupational functioning,” and the GAF was 70.  The psychiatrist indicated the CI had “a history of a chronic depressed mood that dates back to childhood…the examiner was unable to specifically relate the (CI’s) mood disorder to his experiences in the military.  The mood disorder appears to be related to childhood and current personal stresses.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB considered the MDD condition EPTS without PSA, coded 9434 (MDD), citing compelling evidence to support an EPTS with no PSA beyond natural progression.  The VA initially did not service connect the depression condition (EPTS and was not PSA beyond natural progression); however, the VA later rated the MH condition 9433 (dysthymic disorder and unspecified anxiety disorder) at 10%, effective the day after separation, indicating a clear and unmistakable error in their initial EPTS determination, as the evidence referred to was based on subjective reports only.  

The panel’s assessment of PSA is derived from the DoDI 1332.38 (E3.P4.5.2.3) presumption of aggravation standard; a presumption that may only be overcome by a preponderance (defined as “greater than 50% probability”) 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 noted there was no diagnosed MH condition prior to service and the CI was not taking any psychoactive medication prior to service or upon being activated in February 2003.  The CI’s specific MDD was first diagnosed in service following an injury and stressors and the specific MH diagnoses changed over time.  Given that the CI was on chronic psychoactive medication at separation, the panel adjudged there was not a preponderance of evidence to overcome the presumption of PSA, and therefore, the PEB’s unfitting MDD condition was ratable.  

The panel noted there was no traumatic event causing the unfitting MH 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.  Although the NARSUM psychiatrist indicated impairment for social and industrial adaptability was “definite” (DoDI 1332.39, rescinded), the GAF and symptom descriptions with symptoms controlled by medications more closely aligned with the VASRD 10% rating criteria for “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 recommends a disability rating of 10% for the MDD condition, coded 9434.  

Alcohol Abuse and Hypertension.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled, implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic back pain condition, the panel unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the left L5 radiculopathy condition, the panel unanimously recommends a disability rating of 20%, coded 5243-8520 IAW VASRD §4.124a.  In the matter of the contended MDD condition, the panel unanimously agrees that it was not EPTS without PSA, and recommends a disability rating of 10%, coded 9434 IAW VASRD §4.130.  In the matter of the contended alcohol abuse and hypertension conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.   

The panel recommends 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 Back Pain	5243	20%	
Left L5 Radiculopathy	5243-8520	20%	
MDD	9434	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160915, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170016865, 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.

Sincerely,					      
Enclosure