RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01073
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050608

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Helicopter Repairer, medically separated for “back pain” and “major depressive disorder,” rated 10% each, with a combined disability rating of 20%.

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 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 - 20050414	VARD - 20050829	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain	5241	10%	Fusion, Thoracic Spine	5241	20%	20050721	
Major Depressive Disorder	9434	10%	Major Depression	9434	50%	20050721	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent a posterior spinal fusion in May 2004.  His recovery was uncomplicated although he struggled to get relief of his symptoms.  The 1 February 2005 MEB NARSUM examination, 4 months prior to separation, noted complaints of continued back pain despite surgery.  Physical examination showed normal gait, motor strength and sensation.  The 2 February 2005 physical therapy (PT) ROM study showed thoracolumbar ROM flexion of 30 degrees (normal 90), and combined ROM of 75 degrees (normal 240).  The examiner noted pain as the limiting factor.

At the 21 July 2005 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported aching and stiffness on a daily basis, usually in the morning or with prolonged activity during the day.  He had sharp pain with movements such as bending and twisting.  The CI reportedly was placed on quarters for 24-48 hours approximately once per month due to recurrent back pain.  Physical examination revealed normal posture and gait, but spasms were noted.  The ROM study showed forward flexion of 50 degrees and combined ROM of 105 degrees with evidence of painful motion.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5241 (spinal fusion), citing ROM limited by pain and tenderness.  The VA rated the back condition 20%, coded 5241, based on the C&P examination, citing limitation of motion on flexion of the thoracolumbar spine.

Panel members noted there were only two ROM measurements of record around the time of separation.  The PT ROM was consistent with a 40% rating but it was 4 months before separation and less than a year after surgery.  The ROM measurements of the C&P represented the condition most proximate to separation, and was consistent with a 20% rating.  The panel also noted a pattern of post-surgery improvement as demonstrated by the C&P examination with 50 degrees of flexion, and 85 degrees of flexion recorded at the VA spine examination, 18 months after separation.  Panel members agreed the C&P held greater probative value for rating the condition at the time of separation. The panel concluded that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as reported on the C&P examination.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition, coded 5241.  

Major Depressive Disorder (MDD).  According to the STR and MEB mental health (MH) addendum, the CI’s MH disorder began in August 2004.  Since the initial visit, the CI was seen on a regular basis for depression.  He was hospitalized during the period 12-14 February 2005 for an acute episode of suicidal thinking precipitated by divorce papers.  The 7 March 2005 MEB addendum, 3 months prior to separation, noted complaints of poor sleep, variable mood, low libido and impaired concentration treated with medication and talk therapy.  The CI was separated from his wife. The mental status examination (MSE) was unremarkable with the exception of constricted affect and monotone speech. 

The STR documented two encounters with the treating psychiatrist: At the 21 March 2005 encounter the psychiatrist made adjustments to the CI’s psychiatric medication and assessed the CI with MDD secondary to chronic back pain.  On 29 March 2005, the CI stated, “my marriage is over.”  He denied suicidal or homicidal ideation.  The examiner noted the CI was upset but did not want to go to psychology for support.  The diagnosis of MDD secondary to back pain was recorded.

At the 21 July 2005 C&P mental examination, 1 month after separation, the CI reported since having psychiatric treatment, his desire to live returned, he was able to sleep better and his back pain was better controlled.  After separation, he moved in with his mother.  His wife allowed their 6-year-old daughter to spend the summer with him.  He spent most of his time entertaining his daughter.  He continued to have considerable pain preventing physical activity but he was able to go swimming with his daughter on most days.  The CI reported he usually slept 6-8 hours with psychiatric medications.  He reported problems with concentration and forgetfulness.  He had not made any friends and many of his school friends had left, those who had stayed were abusing drugs, thus, he had no relationship with them.  The CI had lost interest in intercourse due to his back problems.  The CI indicated that he received a restraining order just prior to leaving for the VA examination.  The MSE noted a depressed look and the CI expressed shock at being served with restraining orders just a couple of hours prior to the examination.  He expressed fear that his wife might use his psychiatric hospitalization history and treatment against him in efforts to make further requests for restricting his contact with his daughter.  His thought process was normal, judgement was noted as good and there was no evidence of psychosis or impairment in concentration or memory.  The examiner stated, the CI’s “depression seems to be related to his physical disability, chronic pain, divorce, and loss of military career, thus is reactive rather than endogenous.  The presentation at this time is influenced by divorce problems occurring earlier today.”

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the MDD 10%, coded 9434 (MDD), citing psychotropic medication and mild impairment for social and industrial adaptability. The VA rated the MDD 50%, coded 9434, based on the C&P examination, citing occupational and social impairment with reduced reliability and productivity.

Panel members first agreed that the provisions of VASRD§ 4.129 (mental disorder that develops in service as a result of a highly stressful event) were not applicable.  The panel considered the absence of emergency room (ER) treatment, the one psychiatric hospitalization and the apparent stability of symptoms during the months prior to separation and the 18 months after separation.  However, the panel notes that although his symptoms were stable but chronic, stability was seen in the context of not requiring ER treatment or hospitalization.  The panel noted the record clearly documented the role of pain and marital discord in the maintenance of psychological symptoms.  The CI’s treating psychiatrist and the VA both diagnosed depression secondary to back pain.  There was no documentation of employment in the months after separation; however, the psychiatry note 7 months after separation indicated the CI was considering substitute teaching because “he could choose or decline to accept an assignment depending upon his pain level on a given day.”  There was no indication of occupational impairment due to MH symptoms.  There was no report of chronic sleep impairment, significant problems with concentration, memory loss or panic attacks.

Panel members agreed the 10% rating, but no higher, was justified for “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.  After due deliberation, considering all 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 MDD.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the major depressive disorder and IAW VASRD §4.130, 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Back Pain	5241	20%	
Major Depressive Disorder	9434	10%	
COMBINED	30%	
AR20190004016, 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 30% 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