RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01687
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040224

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Health Care Specialist, medically separated for “cognitive disorder” and “cervical and lumbar spine pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.   

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 - 20030730	VARD - 20040520	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cognitive Disorder	8045-9304	10%	Bipolar Disorder and Panic Attacks with Agoraphobia (Claimed as Cognitive, Panic, and Mood Disorder) 	9432	10%	20031210	
Panic Disorder	Not Unfitting					
Mood Disorder						
Mixed Stress and Urge Incontinence	Not Unfitting	Mixed Stress and Urge Incontinence	7517	10%	20031217	
Cervical and Lumbar Spine Pain	5099-5003	0%	Degenerative Arthritis, Lumbar Spine	5242	20%		
			Spondylosis, Cervical Spine	5242	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Cognitive Disorder.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s cognitive disorder began in November 1999 after a motor vehicle accident.  At a neuropsychological evaluation in July 2002 the CI reported multiple injuries including cervical, lumbar, and pelvic fractures and internal injuries.  She may have been unconscious for 5-8 minutes.  As a result she had difficulty performing arithmetic in her head; school work was more difficult; her memory was impaired; she had moderate difficulty with attention/concentration; and she noted increased distractibility and decreased ability to multitask.  She also described irritability, problems with anger, and a general decrease in her tolerance.  The mental health examination showed that the CI was appropriately dressed and grooming was good.  Her mood was “nervous, but usually pretty good,” while affect appeared appropriate.  Speech was clear with no dysarthria apparent, and thought processes were logical and goal-directed.  Thought content revealed neither suicidal nor homicidal ideation, and there were no delusional themes.  Disorders of perception were denied.  She was oriented in all spheres; there was no gross impairment in recall of either recent or remote memories; and sleep was improving after having nightmares “for a long time.”  She was of average intelligence with some psychological insight.  The examiner noted the CI experienced persisting cognitive changes that were likely a result of her closed head injury.  Her neuropsychological functioning was characterized by variable and inefficient attention; left hand motor involvement; visuospatial problems; and planning and organization inefficiency.  She might have had experienced “memory problems” that were actually the result of her variable and inefficient attention.  The pattern of the CI’s performance suggested greater involvement of right hemisphere systems, which could be associated with an increased likelihood of irritability and anger problems.  The examiner opined that the addition of chronic medical problems, relationship difficulties, and a demanding personality style would likely serve to aggravate her experience of cognitive dysfunction.  The Axis I diagnosis was cognitive disorder and her Global Assessment of Functioning was 55 (moderate symptoms).  

At the 22 April 2003 neuropsychology clinic appointment, the CI’s cognitive complaints, functioning and deficits remained unchanged from the prior evaluation in 2002.  The examiner noted that, given more than 3 years since her injury, all recovery she would experience had already occurred.  On 24 April 2003, a MEB Addendum was prepared indicating she did not meet retention standards for the cognitive deficit.  A mental health addendum dated 20 June 2003 noted the CI’s diagnoses included cognitive disorder, not otherwise specified, as manifested by variable and inefficient attention, left hand motor involvement, visuospatial problems, and planning and organization insufficiency.  Impairment for social and industrial adaptability was moderate to severe.  At the 10 December 2003 VA Compensation and Pension (C&P) evaluation, 2 months before separation, the CI reported panic attacks and bipolar illness, which are discussed below, but not any symptoms related to a cognitive disorder.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the cognitive disorder 10%, coded 8045-9304 (brain disease due to trauma/dementia due to head trauma), citing variable and inefficient attention, visuospatial problems, planning and organization insufficiency.  The VA rated the cognitive disorder 10%, coded 9432 (bipolar disorder), based on the C&P examination 2 months before separation, citing occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks.

Panel members noted that the use of code 8045-9304 based on “purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304.  This 10 percent rating will not be combined with any other rating for a disability due to brain trauma.  Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.”  Therefore, there was no route to a higher rating in the absence of delirium or other causes of dementia or an organic mental disorder.  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 cognitive disorder.  

Cervical and Lumbar Spine Pain.  The PEB combined the back and neck conditions as a single unfitting condition analogously coded 5099-5003 and rated 0%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the neck and back conditions are presented together, with attendant recommendations regarding separate unfitness, and separate ratings as indicated below.  

According to the STR and MEB NARSUM, the CI’s neck and back conditions began in 1999 after a single vehicle accident.  She sustained multiple fractures to include her pelvis, L2, L3, L4 vertebrae, and an unstable C2 fracture.  She was offered a fusion procedure, which she declined, and was instead treated in the neurosurgery intensive care unit for 3 weeks with a halo that was continued for 6 months, followed by a supportive neck collar for 3 months after the halo was removed.  Since then she noted chronic lower back pain that increased with daily activity.  X-rays of the cervical spine on 27 August 2001 showed slight osseous overgrowth of the anterior-inferior aspect of the body of C2, likely indicating the site of a healed extension teardrop fracture.  

At a physical therapy visit on 20 November 2002, the CI’s range of motion (ROM) measurements of the lumbar spine were flexion of 90 degrees (normal) and a combined ROM of 230 degrees (normal 240); cervical spine ROMs for flexion were 25 degrees (normal 45) and a combined ROM of 160 degrees (normal 340).  Gait was normal.  

During the 7 November 2002 MEB examination the CI reported limited ROM of the neck and back.  Physical examination showed tenderness of the left lumbosacral spine with pain on flexion.  At the 21 November 2002 MEB NARSUM examination physical examination noted she was tender in the left lumbosacral area with pain on forward flexion.  She was able to heel and toe walk but was unable to squat secondary to discomfort in her back.  She walked with a limp.  An MRI dated 31 January 2003 demonstrated post-traumatic changes involving the C2 vertebral body consistent with remote/healed fracture.  There was no evidence of spinal stenosis or neural foraminal narrowing at any level in the cervical spine.  Neurologic evaluation on 5 February 2003 indicated that electrodiagnostic studies were not required since the CI’s symptoms were too intermittent; however urinary incontinence (see below) was noted in a review of systems.  

The 6 February 2003 MEB NARSUM neck addendum examination, 13 months prior to separation, noted complaints of neck injury and pain.  Physical examination revealed the neck ROM was decreased in flexion to 25 degrees and combined cervical ROM of 170 degrees (normal 340).  Lumbar ROM showed flexion of 90 degrees, extension 20 degrees (normal 30), and bilateral rotation 40 degrees (normal 30 degrees each).  Occasionally, full effort was limited by pain.  Heel, toe, and tandem gait were normal.  

At the 17 December 2003 VA C&P evaluation, 2 months before separation, the CI reported neck and back pain with a severity of 10/10.  The conditions did not cause incapacitation, but the CI reported 12 months of time lost from work.  Physical examination showed evidence of radiating pain on movement on both sides of the neck with no evidence of muscle spasm, and tenderness on both sides of the neck.  ROM of the cervical spine was flexion of 45 degrees and combined cervical ROM of 270 degrees, limited by pain.  Examination of the thoracolumbar spine revealed no complaints of radiating pain on movement.  Muscle spasm was absent and no tenderness was noted.  ROM of the thoracolumbar spine showed 60 degrees of flexion and combined thoracolumbar ROM of 180 degrees.  X-rays of the lumbar spine demonstrated lordosis along with moderate degenerative disc space narrowing at the lumbosacral junction.  There was no abnormal curvature or subluxation of the segments.  X-rays of the cervical spine demonstrated minimal spondylosis (arthritic changes) at C4-5.  There was no appreciable disc space narrowing or foraminal compromise.  An MRI of the cervical spine in January 2004 showed posttraumatic changes involving the C2 vertebral body consistent with a remote healed fracture.  There was no spinal canal stenosis or neural foraminal narrowing.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bundled neck and back conditions 10%, analogously coded 5099-5003 (degenerative arthritis), citing the U.S. Army Physical Disability Agency pain policy.  The VA rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination 1 month before separation, citing forward flexion greater than 30 degrees but not greater than 60 degrees.  The VA rated the neck condition 10%, coded 5242, citing a combined ROM of 170 degrees but not greater than 335 degrees.  

The panel considered whether the neck condition, when considered alone and separate from the lumbar spine condition, was unfitting for continued military service.  The panel concluded that the history of a C2 fracture would have caused the CI to be referred into the DES and to have been determined to be unfit.  The panel then considered its rating recommendation for the unfitting cervical spine pain condition at the time of separation.  While cervical ROM measurements were 25 degrees remote to separation, the VA examination was most proximate to separation and more precise.  Therefore, the VA had a higher probative value.  Panel members determined a 10% rating was warranted for the neck condition with a combined ROM of 180 degrees, based on the combined ROM of the cervical spine greater than 170 degrees but not greater than 335 degrees.  There was no documentation of intervertebral disc syndrome (IVDS) 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 recommends a disability rating of 10% for the neck condition, coded 5235 (vertebral fracture or dislocation).  

The panel then considered whether the back condition, when considered alone and separate from the neck condition, was unfitting for continued military service.  The panel concluded that the history of three lumbar vertebral fractures would have caused the CI to be referred into the DES and to have been determined to be unfit.  The panel then considered its rating recommendation for the unfitting back condition at the time of separation.  Panel members determined a 20% rating was warranted for the back condition based on the VA examination (the most proximate and precise examination prior to separation), where flexion of the thoracolumbar spine was greater than 30 degrees but not great than 60 degrees.  There was no documentation of IVDS 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 recommends a disability rating of 20% for the back condition, coded 5235.  

Contended PEB Conditions:  Panic Disorder, Mood Disorder, and Mixed Stress and Urge Incontinence.  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, nor judged to fail retention standards.  The CI’s last contact in behavioral health was in April 2002.  She reported experiencing some improvement with her symptoms but continued to have panic symptoms.  The examiner noted that impairment of the mood disorder for further military duty was minimal and impairment for social and industrial adaptability was slight.  In regards to her incontinence, the CI reported in October 2002 that she had much more control of her bladder function.  She appealed her MEB about the diagnosis of stress and urge incontinence and indicated she had to wear absorbent materials that had to be changed two to three times a day.  The examiner noted that based on AR 40-501, 3-17e “incontinence of urine is not disqualifying unless it is of such severity as to necessitate recurrent absence from duty.”  There was no performance-based evidence from the record that any of the contended conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that 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 cognitive disorder and IAW VASRD §4.124a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the back condition, the panel unanimously recommends a disability rating of 20%, coded 5235 IAW VASRD §4.71a.  In the matter of the neck condition, the panel unanimously recommends a disability rating of 10%, coded 5235 IAW VASRD §4.71a.  In the matter of the contended panic disorder, mood disorder, and mild stress and urge incontinence, 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 that 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	
Lumbar Spine Pain	5235	20%	
Cognitive Disorder	8045-9304	10%	
Cervical Spine Pain	5235	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160922, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180002669, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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), 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