RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01461
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041026

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard  E4, Motor Transport Operator, medically separated for “posttraumatic stress disorder” and “low back pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  The CI made no specific contention.  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 - 20040930	VARD - 20050519	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Posttraumatic Stress Disorder	9411	10%	Post-Traumatic Stress Disorder	9411	30%	20050201	
Low Back Pain	5299-5237	0%	Degenerative Disc Disease of Lumbar Spine	5242	40%	20050302	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60% 	

ANALYSIS SUMMARY:  

Posttraumatic Stress Disorder (PTSD).  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s mental health (MH) condition began in September 2003 after experiencing combat while in Iraq.  He was frequently exposed to improvised explosive device attacks and other events.  In May 2004 his condition was diagnosed as combat stress/combat fatigue reaction, which was treated with psychotropic medication.  There were no documented visits to the emergency room (ER) for MH concerns, nor was he ever hospitalized psychiatrically.  There was no evidence his condition required evacuation from theater.  
During the 7 July 2004 MH MEB NARSUM examination, 3 months prior to separation, the CI reported he had intrusive distressing recollections of the events of Iraq, and at times he had nightmares.  He reported other symptoms consistent with PTSD.  Additionally, he reported panic attacks, loss of interest in important activities, sleep disturbance, irritability, problems with concentrating, and anger outbursts.  He had no history of psychosis or suicidal or homicidal ideation.  The CI was taking psychotropic medication that was of benefit.  The mental status examination (MSE) was unremarkable.  Suicidal ideation or homicidal ideation were absent, and judgment was noted to be “fairly good.”  The diagnosis of PTSD was recorded and a Global Assessment of Functioning (GAF) score of 60 for mild - moderate impairment or symptoms was documented.  The examiner noted his condition required medication and outpatient care.

During the 1 February 2005 VA Compensation and Pension (C&P) mental evaluation, 3 months after separation, the CI complained of sleep disturbances with combat-related nightmares every night.  He reported several PTSD symptoms, as well as panic attacks and physical aggression.  There was no report of a legal history associated with violence, no report of domestic violence, and he had no history of psychiatric hospitalization or treatment in the ER related to MH.  The CI lived alone in his cousin’s cabin, and was separated from his wife.  He had trouble finding a job, but was trying to get his old job back and had hired a lawyer to assist him.  MSE was unremarkable with the exception of depressed and anxious mood and affect.  His judgment was fair to good.  The examiner assessed a GAF score in the moderate to serious range of impairment.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the PTSD condition 10%, coded 9411 (post-traumatic stress disorder), citing mild industrial impairment.  The VA rated the PTSD condition 30%, coded 9411, based on the C&P examination.  The panel, IAW DoDI 6040.44 and DoD guidance must apply current VASRD §4.129 to all Board cases as appropriate and 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 panel next proceeded with its rating recommendation under VARSD§ 4.130 based on the evidence at constructive TDRL placement.  The panel considered the NARSUM and C&P examinations, as well as the absence of psychiatric hospitalization, 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 ideation.  The Commander’s Statement (CS), dated 3 weeks after the CI had been assigned to the unit and 3 months before separation, noted his military specialty required “very heavy lifting, climbing in and out of tactical vehicles, and exposure to high intensity noises which he is unable to perform because of his medical condition, and his physical profile.”  However, the CS made no mention of difficulties with co-workers or supervisors, panic attacks, or problems with focus or concentration.  The panel considered the record in evidence did not support a rating higher than 50% 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 PTSD 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.  In the months following separation, the STR noted the CI continued to have difficulty with sleep, was unemployed, and had engaged in physical aggression, including an altercation with his wife that was witnessed by his children.  There had been multiple changes in his medication, from which he did receive some benefit.  The CI was not seen in the ER for MH symptoms and there was no report of panic attacks.  His condition had not required psychiatric inpatient treatment.  Impairment in judgment was not demonstrated or documented.  Panel members concluded, at the time of separation, the CI’s disability was most reflective of the 30% level for “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.”  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 30% for PTSD. 

Low Back Pain (LBP).  According to the STR and MEB NARSUM, the CI’s back condition began in May 2004 after he fell off a trailer.  Lumbar spine MRI showed disc protrusion at L5/S1 level, without canal foraminal stenosis.  There was some right-sided foraminal narrowing (narrowing of the openings where the spinal nerve roots are located).

During the 4 August 2004 MEB examination the CI reported his right leg and foot went numb when sitting for long periods.  Physical examination (PE) showed tenderness.  Sensory function was intact.  The 17 August 2004 MEB orthopedic addendum examination, 2 months prior to separation, noted complaints of LBP and left lower extremity radiculopathy.  The CI reported his pain worsened with sitting, standing, bend and lifting, and was relieved only by medication.  PE showed lumbosacral spine with normal appearance.  Palpation of the lumbosacral spine revealed no abnormalities and muscle spasm was not present.  He had full range of motion (ROM).  A straight leg raise (SLR) test was negative, and sensory exam was normal.  The examiner wrote, “I find that based on the soldier’s complaints he is unable to perform his duties, yet radiologically, and clinically he is capable of performing his duties.”

At the 2 March 2005 C&P evaluation the CI reported chronic LBP with numbness and tingling down his right leg to his toes.  Urinary incontinence was not present.  PE showed normal gait.  Lower extremities demonstrated no muscle weakness or atrophy, and normal joints.  There was no motor or sensory abnormality on the left and SLR test was negative.  The right side showed decreased sensitivity in several areas, with normal motor function and negative SLR.  ROM flexion was at 45 degrees (normal 90) and combined ROM was 125 degrees (normal 240).  Repetitive forward flexion motion was reduced to 20 degrees.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, analogously coded 5237 (lumbosacral strain), citing full ROM, no objective radicular signs, and no persisting local tenderness.  The VA rated the back condition 40%, coded 5242 (degenerative arthritis of the spine), citing ROM measurement of forward flexion of 45 degrees, with repetitive motion forward flexion reduced to 20 degrees.  As noted above, the CI was placed on constructive TDRL, therefore, the panel first considered the rating at TDRL placement.  The panel agreed there was no limitation of thoracolumbar spine motion at the MEB to support a 10% rating under the General Rating Formula for Diseases and Injuries of the Spine and the STR examinations did not note the presence of painful motion, muscle spasm, or guarding.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula.  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairments (such as weakness) that directly impacted fitness for duty.  The only STR evidence with a ROM measurement was an orthopedic examination on 3 August 2004 which showed a full ROM, and no pain on motion.  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 0% adjudication for the lumbar spine condition at time of TDRL placement.

The panel next proceeded to the rating at the time of permanent separation.  The panel considered the C&P examination, which was the sole examination during the TDRL period.  Based on that examination, the panel agreed the 40% rating for forward flexion of the thoracolumbar spine of 30 degrees or less (45-20 degrees) is warranted.  There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula.  There was no associated radiculopathy for separate peripheral nerve rating.  After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a permanent rating of 40%, coded 5299-5237, for the LBP condition. 

BOARD FINDINGS:  In the matter of the PTSD condition, the panel unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed; and a 30% permanent rating at 6 months IAW VASRD §4.130.  In the matter of the LBP condition and IAW VASRD §4.71a, the panel unanimously recommends an initial TDRL rating of 0%; and a 40% permanent rating at 6 months coded 5299-5237 IAW VASRD §4.71a.  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, the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
		TDRL	PERMANENT	
Posttraumatic Stress Disorder	9411	50%	30%	
Low Back Pain	5299-5237	0%	40%	
COMBINED	50%	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161007, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180003266, 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 50% disability for six months effective the date of your original medical separation for disability with severance pay and then following this six month period to re-characterize your separation as a disability retirement with the combined disability rating of 60%.  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 50% retired pay for six months from the date of your original medical separation and then re-characterize your separation as a disability retirement with the combined disability rating of 60% 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), XXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.
Sincerely,					      
Enclosure