RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01480
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040709

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

CI CONTENTION:  The CI contends for his service-related conditions and other conditions not adjudicated by the service.  He also contends his conditions should be rated higher. 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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040528	VARD - 20060731	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Posttraumatic Stress Disorder…	9411	10%	Posttraumatic Stress Disorder and Nervous Condition	9411	10%	20041028	
Chronic Subjective Low Back Pain…	5237	10%	Left Paracentral Herniated Nucleus Pulposus; L4·L5, L2-L3 Bulging Disc	5243-5242	20%	20041203	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Posttraumatic Stress Disorder (PTSD).  According to the service treatment record (STR) and MEB mental health (MH) narrative summary (NARSUM), the CI’s PTSD condition began in September 2003 associated with his 4-month deployment.  During the 2 February 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported he had anxiety, depression, and PTSD due to mobilization.  Physical examination showed decreased spine range of motion (ROM).

The 19 April 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of nightmares and crying episodes.  He had anxiety and constant memories of events while deployed.  He had concerns with his job as a civilian policeman because he was not sure he could carry out his duties.  The CI noted he began to feel irritable with decreased sleep, nightmares, anger and anxiety after he returned home on emergency leave.  His wife had severe depression and he needed to return home.  Due to his symptoms, the CI was enrolled in a day program, where he spent 4-6 weeks.  He was prescribed psychotropic medications, which was of some benefit.  Mental status examination (MSE) was unremarkable with the exception of anxious affect.  The diagnosis of PTSD was recorded and a Global Assessment of Functioning (GAF) score connoting serious symptoms, was documented.

At the 28 October 2004 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported he had not taken psychotropic medication as prescribed and had not refilled his medications since August 2004.  He reported that at times he had difficulty with sleep because he was tense when he arrived home.  He continued to work as a policeman.  MSE was unremarkable with the exception of “somewhat depressed and anxious mood” and constricted affect.  The examiner opined that the CI had not met the DSM-IV “stressful criteria for PTSD.”  The diagnosis of adjustment reaction with mixed emotional features was recorded on Axis I, and a GAF score connoting, “If symptoms are present, they are transient and expectable reactions to psychosocial stressors” was recorded.

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 a requirement for multiple psychotropic medications, receiving monthly outpatient psychiatric treatment. The VA also rated the PTSD condition 10%, coded 9411, (post-traumatic stress disorder), based on the C&P examination 4 months after separation and outpatient treatment records from 15 August 2005 through 23 May 2006.

Office of the Under Secretary of Defense memorandum dated 17 July 2009 states:  "Therefore, as a matter of policy, the PDBR and all three BCMRs will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after September 11, 2001, and in such cases, where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of 6 months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence.”  

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 proceeded with its rating recommendation under VARSD§ 4.130 based on the evidence at the constructive Temporary Disability Retired List (TDRL) placement.  The panel considered the NARSUM, commander’s statement, and the VA examination.  The panel also considered the absence of hospitalization, visits to the emergency room for MH symptoms, absence of evidence of impaired judgment, problems with thinking, suicidal or homicidal ideation.  The commander's statement documented no symptoms of his condition, but referenced his profile as interfering with CI’s ability to perform his duties.  The panel noted his profile had not addressed functional limitations and capabilities related to his PTSD diagnosis.  The panel determined 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 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.  The 50% disability rating requires evidence of “Occupational and social impairment with reduced reliability and productivity due to symptoms such as: flat affect, panic attacks more than once a week, difficulty in understanding complex commands, impaired short and long-term memory and impairment in judgment and thinking…”  The 30% disability rating requires evidence of “Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal).  The STR in the months following separation, noted the CI had remained employed in his previous position without any evidence of impairment in occupational functioning.  He remained married and there was no documentation of significant marital issues.  His condition was stable, although medication use was unclear.  He reported problems at times with sleep, and noted others had commented on his mood.

The panel considered the record in totality and noted that the CI had no history of hospitalization, ER visits, no history of suicidal or homicidal ideation, and no evidence of impairment in judgment at any time before or after separation.  Panel members concluded the evidence demonstrated the CI’s condition was stable during the constructive TDRL period, and that his 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, or; symptoms controlled by continuous medication mild or transient”.  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. 

Chronic Subjective Low Back Pain (LBP).  According to the STR and the MEB NARSUM, the CI’s LBP condition began in early 2003 after heavy lifting and aggravated further in March 2003.  Magnetic resonance imaging (MRI) of lumbar spine in September 2003 showed normal alignment and height of vertebral body, disc bulges at L2-L3, L4-5, and L5-S1, and degenerative disc disease.  The CI was not a surgical candidate.

During the 2 February 2004 MEB examination the CI reported back pain and numbness and tingling due to herniated disks.  Physical examination showed decreased ROM of the lumbar spine. The 20 April 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of “my back hurts and I have got a lot of nerve problems.”  The CI stated that while lifting some heavy boxes during his deployment, he developed lower back pain.  After returning home from his deployment, his back pain became continuous.  It is made worse with exercise, prolonged standing or sitting or climbing and descending stairs.  He denied radiculopathy.  Physical examination showed moderate tenderness on palpation of the lumbar muscles, and no other significant abnormality.  ROM recorded by physical therapy (PT) on the same day, documented lumbar flexion to 35 degrees (normal 90), and combined ROM of 125 degrees (normal240) with pain present throughout ROM testing.

At the 28 October 2004 C&P evaluation the CI reported he had difficulty standing for 4 or 5 hours or sitting for 4 or 5 hours.  He used no assistive device for ambulation, nor did he use a back brace.  Physical examination showed a normal appearing spine and normal gait and posture.  There was painful motion at the end ranges, and thoracolumbar flexion measured 40 degrees.  The examiner recorded palpable lumbar spasm, normal muscle strength, and some tenderness to palpation.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5237 (lumbar spine strain), citing range of motion limited by pain. The VA rated the LBP condition 20%, dual coded as 5243-5242, (intervertebral disc syndrome and degenerative arthritis of the spine), based on the C&P examination 4 months after separation.  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, the CI’s ROM flexion measurement was consistent with the 20% rating, therefore, panel members agreed, there was sufficient evidence to support the higher rating of 20% at constructive TDRL placement.  The panel next proceeded to the rating at the time of permanent separation, and all members agreed, the VA examination during the post-TDRL period was consistent with the 20% rating.  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 LBP condition, coded 5237.  

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 LBP condition and IAW VASRD §4.71a, the panel recommends a disability rating of 20% coded 5237 IAW VASRD §4.71 for 6 months from the time of discharge consistent with a constructive period of TDRL and then a permanent separation rating of 20% IAW VASRD §4.71.  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	
PTSD	9411	50%	10%	
Chronic Subjective Back Pain	5237	20%	20%	
COMBINED	70%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160830, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180005707, 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 70% disability for six months effective the date of your original medical separation for disability with severance pay and then following this six month period re-characterize 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 re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing you 70% 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