RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01360
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040709

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Military Policeman, medically separated for “chronic subjective back pain…” and “posttraumatic stress disorder with major depressive disorder” rated 10% each, with a combined disability rating of 20%.   

CI CONTENTION:  Review of all conditions requested.  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 - 20040524	VARD - 20050303	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Back Pain…	5299-5242	10%	Lumbar Disc Disease at L3-L4	5243	10%	20041118	
Posttraumatic Stress Disorder with Major Depressive Disorder…	9411	10%	Posttraumatic Stress Disorder; Major Depressive Disorder	9411	30%	20041109	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  
	
Posttraumatic Stress Disorder (PTSD) with Major Depressive Disorder (MDD).  The panel’s initial charge in this case was to determine if the provisions of §4.129 were met for any psychiatric condition resulting in medical separation.  In order to best explain the process of being placed on constructive Temporary Disability Retired List (TDRL), the CI’s mental health condition was considered first.

According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s mental health (MH) condition began following a June 2003 event when his convoy was ambushed and he jumped out of a vehicle.  The CI was evaluated and assigned to a support group from September 2003 through January 2004, which was of some benefit.  He was later diagnosed with PTSD.  The STR demonstrated that the CI was never suicidal or homicidal and his condition did not require treatment in the emergency room (ER) or hospital.

During the 27 April 2004 MH NARSUM examination, 2 months prior to separation, the CI complained, “I am not doing well.”  The CI reported no improvement in treatment and for that reason he felt angry, depressed, irritable, anxious, and unable to sleep.  His appetite was decreased, he had thoughts about death and dying, flashbacks of the ambush, and he isolated himself from others.  The mental status examination (MSE) was unremarkable.  The examiner noted the CI was prescribed an antidepressant medication.  The medication profile did not document any prescription for antidepressant medication prior to 15 April 2004 (12 days prior to the NARSUM addendum).  The examiner diagnosed MDD and PTSD and assigned a Global Assessment of Functioning (GAF) score of 55 for moderate symptoms and/or impairment.

At the 9 November 2004 VA Compensation and Pension (C&P) mental examination, 4 months after separation, the CI reported nightmares, irritability, problems with sleep, difficulty in concentrating, and intrusive thoughts related to the Iraq deployment.  He was married and the couple had two small children.  His wife reportedly provided adequate social support, and he reported positive marital and family relations.  The CI stated he began treatment in September 2003 and was prescribed antidepressant medication in December 2003.  The examiner noted that although the CI was in treatment at the VA clinic for chronic pain, he had not received any MH services from the VA in the past year.  It was noted the pain clinic had prescribed antidepressant medication after the May 2004 psychological evaluation assessed major depression, PTSD and a GAF of 70 (very mild symptoms and/or impairment).  He had not been hospitalized nor treated in the ER for MH symptoms.  He had no history of panic attacks or suicidal ideation.  The MSE was unremarkable with the exception of an anxious and depressed mood.  The examiner opined that his symptoms were “moderately interfering with the patient’s employment functioning.”  However, the examiner also wrote, “He [CI] has not been able to work due to his low back condition.”  A GAF score of 60 (cusp of moderate and mild) was rendered.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the PTSD and MDD 10%, coded 9411 (PTSD), acknowledged 10A/C was awarded and that injuries were the result of armed conflict in Iraq.  The VA rated the PTSD and MDD at 30%, also coded 9411.

The panel proceeded with its rating recommendation under VARSD§ 4.130 based on the evidence at constructive TDRL placement.  The panel considered the NARSUM addendum and the commander’s statement, dated 3 months prior to separation as well as the absence of psychiatric hospitalization or visits to the ER for MH symptoms; and the absence of clinical evidence of impaired judgment, problems with thinking, and the absence of suicidal or homicidal attempts.  The commander noted the CI was diagnosed with PTSD but did not mention that this condition had interfered with duty performance.  The commander wrote, “In my opinion, there is some doubt as to [the CI’s] physical ability to perform in his PMOS at any time, any place, or under any conditions.”  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 PTSD 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 C&P mental examination documented the CI was not working due to his back condition.  He was married and had good marital and family relations.  There was no documentation the CI received any MH treatment after separation.  He had some difficulty with sleep but chronic insomnia was not reported, and he took no medication for sleep disturbance.  The CI had no history of panic attacks, issues with memory, and no visits to ER or hospitalizations.  

The panel considered the record in totality and concluded that at the time of separation, the CI’s disability was most reflective of the 10% level for “occupational or social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.”  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 PTSD with MDD. 

Chronic Subjective Back Pain Secondary to Degenerative Disc Disease.  According to the STR and MEB NARSUM, the CI’s back condition began in June 2003 after jumping off a HMMWV during an ambush.  That night, the CI felt pain in his lower back, and the next day, the pain had increased with shooting pain into his right leg.  Despite medication and therapy, the pain continued.  The CI was evacuated to Germany where X-ray studies were normal.  After 45 days of therapy, the pain continued and the CI was returned to Puerto Rico.  On 7 November 2003, an MRI showed a bulging disc at L3-4.  

The 23 April 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of severe pain in his lower back with prolonged walking or climbing up and down stairs.  He had problems with sleep due to back pain.  Physical examination showed marked tenderness at L3 bilaterally down to the iliac crest and L3 to the sacrum.  There were moderate muscle spasms in the right paravertebral muscles and slight spasms in the left paravertebral muscles.  Knee jerk was 2+ and equal.  Goniometric range of motion (ROM) measurement of the lower back revealed flexion at 65 degrees (normal 90) and combined ROM of 165 degrees (normal 240).

At the 18 November 2004 C&P examination the CI reported his back pain averaged 5-6/10 in intensity with frequent exacerbation of symptoms.  Physical examination showed normal gait and a normal appearing spine.  There was mild tenderness from L3 through L5 and muscle spasm was noted.  ROM recorded normal flexion and extension with pain present.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded analogously 5242 (degenerative arthritis of the spine), citing combined thoracolumbar ROM of 185 degrees, without neurological abnormality.  The VA rated the back condition 10%, coded 5243 (intervertebral disc syndrome [IVDS]), based on the C&P examination 4 months after separation, citing the 10% criteria for incapacitating episodes.

As noted above, the CI was placed on constructive TDRL, therefore, the panel first considered the rating at TDRL placement.  At the time of TDRL placement, panel members agreed that a 10% rating, but no higher, was justified for limitation of flexion greater than 60 degrees but not greater than 85 degrees and combined ROM greater than 120 degrees but not greater than 235 degrees, as reported on the NARSUM examination.  Although there were spasms, 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 IVDS with incapacitating episodes which would provide for a higher rating under that alterante formula.  Panel members agreed there was insufficient evidence to support a higher than 10% rating at constructive TDRL placement.  

The panel next proceeded to the rating at the time of permanent separation, and after reviewing the two available treatment entries (August and November 2004) as well as the C&P examination, all members agreed, there was no rating for the chronic back pain condition higher than 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the back pain condition at permanent separation.  

BOARD FINDINGS.  In the matter of the PTSD 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 chronic subjective back pain and IAW VASRD §4.71, the panel recommends no change in the PEB adjudication.  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, effective the date of medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Chronic Subjective Back Pain	5299-5242	10%	10%	
Posttraumatic Stress Disorder with Major Depressive Disorder	9411	50%	10%	
COMBINED	60%	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160924, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180004645, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	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 no re-characterization of your separation or modification of the permanent disability rating of 20%.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The constructive TDRL period 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 no re-characterization of your separation or modification of the permanent disability rating of 20% following the constructive six month TDRL period. 

	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.  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