RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01115
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20050117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Military Police, medically separated for chronic subjective neck pain, and chronic back pain, rated 10% and 0%, respectively, with a combined disability rating of 10%.  Major depressive disorder (MDD) was determined to have existed prior to service (EPTS) and was not rated.   

CI CONTENTION:  “Review all medical 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 – 20041122 	VARD - 20050628	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Neck Pain…	 5299 5237	10%	Cervical Spine Strain-Myositis	5237	10%	20050406	
Chronic Back Pain…	5299 5237	0%	Lumbosacral Spine Strain-Myositis	5237	10%	20050406 	
Major Depressive Disorder…	9434	---%	Post-Traumatic Stress Disorder	94ll	10%	20050420	
Post-Traumatic Stress Disorder…	Not Unfitting					
Alcohol Abuse…	Not Unfitting	No VA Placement	
Hypertension	Not Unfitting	Hypertension	7101	0%	20050406	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS: 30%	

ANALYSIS SUMMARY:  

Chronic Subjective Neck Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck pain condition began in October 2003 while deployed when his unit was attacked and he fell to the ground while trying to get into a vehicle.  Magnetic resonance imaging (MRI) dated 21 January 2004 of the cervical spine demonstrated no evidence of pathologic fractures.  The cervical and thoracic spinal cord showed no evidence of masses, compressive myelopathy, myelomalacia, or syrinx.  A bone scan dated 27 January 2004 was normal.  During the 18 May 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported neck spasms.  Physical examination showed cervical spine range of motion (ROM) measurements for forward flexion 50 degrees (normal 45), and a combined ROM of 280 degrees (normal 340).  The 15 June 2004 MEB NARSUM examination, 7 months prior to separation, noted the complaints of sharp pains in his neck that radiated from the posterior aspect of his neck to his shoulders and increased with physical activity.  The ROM measurements recorded were identical to those of the 18 May 2004 MEB examination; however, it was noted the ROMs of the cervical spine were limited by stiffness and slight pain at the limits of motion.    

At the 11 April 2005 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported sharp pain with weekly flares.  Bending forward, prolonged standing, sitting or driving exacerbated the pain.  Physical examination of the cervical spine showed a forward flexion from 0- 45 degrees and a combined ROM of 340 degrees (normal 340), all motions of which were painful.  There was pain, tenderness, and guarding on palpation of the neck.  The spine did not show any postural abnormalities or fixed deformities, or any evidence of reversed lordosis, abnormal kyphosis, scoliosis or ankylosis.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5299-5237 (cervical strain).  The VA also rated the neck condition 10%, coded 5237 based on the C&P examination 3 months after separation, based on painful motion.  Although there was insufficient limitation of motion to support a minimum rating, the panel agreed a 10% rating was justified for the presence of painful motion.  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.  Furthermore, 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 chronic subjective neck pain condition.  

Chronic Low Back Pain.  The CI’s low back condition also began in October 2003 while deployed when his unit was attacked and he fell to the ground while trying to get into a vehicle.  An MRI of the lumbar spine dated 21 January 2004 was normal.  During the 18 May 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported low back pain.  Physical examination showed the ROM of forward flexion 90 degrees (normal 90), and a combined ROM of 240 degrees (normal 240).  The 15 June 2004 MEB NARSUM examination, 7 months prior to separation, noted complaints of pain in the lower back, which was localized to the center of his lumbar spine without radiation.  His pain increased with physical activity.  Physical examination showed a normal gait.  ROM measurements for the thoracolumbar spine were the same as recorded at the MEB examination with forward flexion 0-90 degrees and a combined ROM of 240 degrees (normal 240).  Motion was essentially normal with some stiffness.  Strength, sensation, and reflexes were normal.  

At the 11 April 2005 C&P evaluation the CI reported sharp pain with weekly flares.  Bending forward, prolonged standing, sitting or driving exacerbated the pain.  He walked without an assistive device and was working.  Physical examination of the thoracolumbar spine showed a forward flexion from 0- 70 degrees, extension 0-30 degrees, left and right lateral flexion 0-30 degrees each, and left and right rotation 0-30 degrees.  All motions were painful.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 0%, coded 5299-5237 (lumbosacral strain).  The VA also rated the low back condition 10%, coded 5237.  Although there was insufficient limitation of motion to support a minimum rating, the panel agreed a 10% rating was justified for the presence of tenderness, spasm, and guarding.  However, although there was muscle spasm or guarding, it was not severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  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 chronic low back condition, coded 5299-5237.  

Major Depressive Disorder (MDD).  According to the STR and the MEB NARSUM, the CI was seen by mental health (MH) in May 2003 because his symptoms of anxiety had returned and he had been off psychotropic medications for 2-3 months during deployment.  A psychiatrist noted on 29 May 2003 the CI had been taking the medications for 4 years while receiving treatment at the VA.  In November 2003, the CI reported symptoms of depression and psychosis, and was assessed with anxiety disorder NOS.  

Psychiatric evaluation on 4 March 2004 noted the CI self-reported a history of PTSD (posttraumatic stress disorder) and MDD.  The CI noted for several months he had been irritable and anxious, which caused him problems with a superior and at home.  He did not feel sad or depressed because he was taking his medications.  The mental status examination (MSE) was unremarkable with the exception of anxious mood, and the CI’s report of auditory hallucination; however, evidence of active hallucination was not provided, and his concentration and attention was recorded as “good.”  The examiner also assessed him as having good Insight and judgment.  The examiner’s diagnostic impressions were depressive disorder, NOS and PTSD by history.  His Global Assessment of Functioning (GAF) score was 65 (some mild symptoms).  In a questionnaire dated 10 May 2004 the CI noted when deployed his base was subject to mortar attack and saw people die.  His sleep was always being interrupted.  He reported being hypervigilant and was disturbed by sudden noises.  He noted irritability, anger, and emotional lability with laughing, crying, or getting angry for no apparent reason.  

The 7 June 2004 MEB NARSUM Psychiatric Addendum, 7 months prior to separation, noted the complaint of “I am not feeling well.”   The MSE was unremarkable.  No evidence of psychosis, suicidal or homicidal ideations, or impairment in cognition.  Axis I diagnoses were major depressive disorder and PTSD.  Neither existed prior to service.  The commander’s statement dated 5 August 2004 indicated the CI had limitations imposed by his profile.  The commander stated, “In my opinion, there is some doubt as to CPL’s physical ability to perform in his PMOS at any time, any place, or under any conditions.”  The commander did not mention any MH symptoms that impacted negatively on performance, or that the CI had issues with supervisors or co-workers.

At the 20 April 2005 C&P initial evaluation for PTSD, 3 months after separation, the examiner noted that the CI was seen by the VA for the first time in March 2004 with the diagnosis of depressive disorder NOS and “PTSD by history.”  He had no marital problems, and was at the police station performing mostly clerical and janitorial work by order of the police psychiatrist.  There was no documented visits to the ER or any psychiatric inpatient treatment recorded in the STR.  MSE was unremarkable with the exception of anxious mood and constricted and appropriate affect.  Judgment was good and insight was fair.  The examiner noted the CI’s signs and symptoms were moderately interfering with his employment function (industrial capacity) and social functioning.  The diagnosis of PTSD was recorded.

At outpatient therapy sessions in June and October 2005 the CI continued prescribed medications and reported that he was still working at the police station.  The 10 April 2006 MH visit noted the CI had returned to his duty as a policeman and worked the 4pm-midnight shift.  There was no indication of any problems at work due to MH symptoms, and he had a GAF score of 65 (mild symptoms).
The panel directed attention to its rating recommendation based on the above evidence.  The PEB did not rate the MDD condition, coded 9434 (major depression), citing treatment with psychiatric medication in 1997, and compelling evidence to support a finding that his condition existed prior to service and was not permanently aggravated beyond natural progression by such service.  The VA rated the sole condition of PTSD 10%, coded 9411, (post-traumatic stress disorder), based on the C&P examination 3 months after separation.  

The panel first considered whether the condition existed prior to service and not aggravated by service.  The NARSUM and STR noted his depressive and anxiety symptoms presented during his deployment, and that many of his symptoms were complicated by combat trauma.  The STR also documented past treatment with psychotropic medication; however, there was limited evidence to support that the condition of MDD existed prior to service and medical opinion recorded that the condition had not existed prior to service.  Panel members agreed, it was reasonable to assume that medications documented as prescribed prior to service, may have been used to treat a MH condition; however, the condition of MDD diagnosed and treated prior to service was not documented sufficiently to make the determination that it existed prior to service.  The panel concluded, it is possible that the CI suffered from MDD and thus, may have existed prior to service; however, the evidence would support service aggravation, and a rating recommendation.  

The panel next considered whether the provisions of VASRD §4.129 (mental disorders due to traumatic stress) were applicable at the time of separation.  The panel, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), must consider if the definition of §4.129 is met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event”.  If the panel judges that application of §4.129 is appropriate, it will recommend a minimum 50% rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL).  The panel must then determine the most appropriate fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation, based on the facts in evidence which are most probative for that interval.  The PEB indicated that the CI’s condition did not result from a combat related injury; however, STR demonstrated that the CI’s symptoms presented in the context of increased stress related to traumatic experiences during deployment which prompted him to seek MH treatment.  Therefore, panel members agreed the provisions of §4.129 were applicable in this case.  

The panel further noted that a PTSD diagnosis was not made for several months after the onset of his depressive symptoms, and that the PTSD was determined by the PEB to be not unfitting.  Although symptoms related to PTSD may have worsened his depression, finding PTSD as an additional unfitting MH condition is of no rating benefit to the CI since §4.130 rating is based on symptoms independent of diagnosis, therefore, all mental health symptoms (depressive disorder and PTSD) are considered in the rating, and reflected in the Panel’s recommendation.  Furthermore, VASRD §4.14 (avoidance of pyramiding) indicates the granting of more than one rating for the same impairment is prohibited. 

Panel members next proceeded to the §4.130 rating recommendation at the time of constructive TDRL.  The panel considered the NARSUM and the commander’s statement, dated 4 months prior to separation.  The panel also considered the absence of psychiatric hospitalization at any time prior to separation, or visits to the emergency room for MH symptoms; and the absence of clinical evidence of impaired judgment, problems with thinking, and suicidal or homicidal attempts.  The commander listed all of the CI’s condition but was silent regarding specific impact of MH symptoms on CI’s performance.  However, the commander made no mention of difficulties with co-workers or supervisors, panic attacks, or problems with focus or concentration.  The commander indicated that the CI’s duty impairment was related to his physical condition, and the limitations of his profile.  The profile had minimal MH restrictions if any.
The panel considered the record in evidence did not support a higher than 50% rating for TDRL placement.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Panel recommends a disability rating of 50% for the MDD condition at TDRL placement.  The panel next considered whether the evidence at the time of removal from TDRL and permanent disability disposition supported a rating higher than the 10% rating adjudicated by the PEB.  The post-separation STR post TDRL removal, demonstrated that the CI’s condition had remained stable without the need for hospitalization or care in the ER.  Although he continued to report MH symptoms, there was no documentation that his symptoms had impacted his occupational or social functioning.  Treatment entry dated 10 April 2006 noted that the CI had continued to work as a policeman on 8 hour shifts, and there was no mention of difficulty in the workplace.  His MSE noted he had no evidence of psychosis, had no difficulty with sleep, nightmares, panic attacks, memory, or judgment.  He had an anxious affect and mood.

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.”  The STR post TDRL removal documented that the CI had continued to work as a police officer full-time, and actually had more than 2 years of continuous employment.  He had no marital issues and was stable on his medication.  His condition had not required treatment in the ER, nor was he hospitalized psychiatrically.  Panel members agreed, his condition best reflected the 10% disability level.  After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a retroactive 6-month period of TDRL with a rating of 50% (in accordance with §4.129), and a permanent rating of 10% for the major depressive disorder, coded 9434. 

Contended PEB Condition:  PTSD.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was profiled, referred to in the commander’s statement based on the profile, but was not judged to be unfitting by the PEB.  As noted above, rating under §4.130 is based on overall occupational and social impairment due to mental health symptoms and not based on any specific mental health diagnosis.  Furthermore, VASRD §4.14 (avoidance of pyramiding) indicates the granting of more than one rating for the same impairment is prohibited. 

Contended PEB Conditions:  Hypertension, Alcohol Abuse.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement, or judged to fail retention standards. There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  Additionally, alcohol abuse is a condition that does not constitute a physical disability.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended conditions; and so, no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic subjective neck pain condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the low back condition, the panel recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the major depressive disorder condition, the panel recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed, and a 10% permanent rating at 6 months IAW VASRD §4.130.  In the matter of the contended PTSD, alcohol abuse and hypertension conditions, the panel 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 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	RATING	
		TDRL	PERMANENT	
Chronic Subjective Neck Pain	 5299 5237	10%	10%	
Chronic Back Pain…	5299 5237	10%	10%	
Major Depressive Disorder	9434	50%	10%	
COMBINED	60%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160916, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170018546, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to constructively place you on the Temporary Disability Retired List (TDRL) at 60% disability for six months effective the date of your original medical separation for disability with severance pay and then following this six month period recharacterize your separation as a disability retirement with the combined disability rating of 30%.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The constructive TDRL period and the recharacterization of your separation as a disability retirement will result in an adjustment to your pay providing you 60% retired pay for six months from the date of your original medical separation and then 30% disability retired pay effective the date following the constructive six month TDRL period, 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