RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02688
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071205

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Cavalry Scout, medically separated for “low back pain” and “posttraumatic stress disorder (PTSD),” 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 - 20071001	VARD - 20081121	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5241	10%	Chronic Low Back Pain	5241	10%	20080923	
PTSD	9411	10%	PTSD 	9411	30%	20081023	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

PTSD.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s PTSD began in October 2006 after having problems with sleep while deployed.  After redeployment, the CI saw mental health (MH) on 31 October 2006 for problems with sleep, irritability and being around crowds.  The CI reported witnessing the aftermath of a suicide bomber in Iraq and was treated with medications and individual psychotherapy.  The CI was awarded a Combat Action Badge.  The CI could work independently and was able to maintain appropriate relationships with his peers and superiors while pending his MEB.  The 26 July 2007 neuropsychological examination noted blast concussions related to service in Iraq and rendered diagnoses of cognitive disorder, NOS, and PTSD with definite impairment for social and industrial adaptability.  

The 31 July 2007 MEB NARSUM examination, 4 months prior to separation, noted complaints of problems with sleep despite medications (only getting 3-4 hours per night).  He was still irritable and had problems being around crowds.  He denied suicidal or homicidal thoughts, plans or ideations.  He reported no MH hospitalizations and was treated with klonopin, seroquel and remeron.  His current job consisted of staff duty.  

The 15 September 2007 neuropsychological examination noted multiple blast exposures and subsequent memory problems.  The CI showed symptoms of both PTSD and neuropsychological deficits related to his deployment.  He reported recurrent, intrusive and uncontrollable flashbacks to Iraq due to a specific death of a 7-year-old child.  He reported almost daily nightmares of the incident with the child in Iraq but this was improving somewhat.  He also showed hypervigilance, hyper startle, avoidance, restricted affect and chronic hyper arousal.  He was being managed for medication and was feeling marginally better.  He was receiving individual psychotherapy but had moderately disabling symptoms of PTSD.  Mental status examination (MSE) showed slightly depressed mood and constricted affect, generally concrete conceptual operations with poor abstract reasoning and poor cognitive flexibility.  Testing showed a working memory slightly below normal.  Axis I diagnoses of cognitive disorder and PTSD were rendered.  

At the 23 September 2008 VA Compensation and Pension (C&P) general examination, 10 months after separation, the CI reported easy irritability on a daily basis.  To avoid this he went home where he was alone.  He had a girlfriend for the last couple of months.  He reported he had a hard time remembering things like phone numbers and appointments.  

At the 23 October 2008 VA C&P psychiatry examination, 11 months after separation, the CI reported nightmares, hypervigilance, anxiety and frequent flashbacks.  He was receiving psychotherapy and reported effects were poor but he was taking no medications.  He reported being demoted in the Service from E5 to E4 due to the use of valium for sleep.  He lived with a friend, got along well with his father and had a few friends he did not feel close to.  He had fights with people frequently and no leisure activities.  He isolated himself and often felt angry and irritable.  He felt his overall psychosocial function was poor and he was unable to be in a relationship.  Immediately after discharge, he enrolled at a community college but failed all subjects, stayed home a few months, but then came to his current job as a full-time gym manager.  He had lost no time from work.  He resided with his father and step-mother.  The MSE showed he was restless, hostile and contemptuous towards the examiner, with a constricted affect and irritable and dysphoric mood.  The CI reported his sleep was disturbed due to nightmares, leaving him tired and irritable.  Memory was intact and the CI denied panic attacks and suicidal ideation.  A diagnosis of PTSD was rendered with a GAF score of 65 (mild impairment.)  The examiner noted decreased concentration, inappropriate behavior, increased tardiness and poor social interaction.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the MH disorder 10%, coded 9411 (PTSD), citing symptoms controlled with continuous medication.  The VA rated the MH disorder 30%, coded 9411, based on the C&P examination, citing occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

The panel determined VASRD section §4.129 (mental disorders due to traumatic stress) was applicable in this case.  Therefore, as a matter of policy, the PDBR must recommend placement of the CI on a period of constructive TDRL with a minimum rating of 50% IAW §4.129 with reassessment after six months.  Disability associated with any psychiatric condition (including the elements of cognitive disorder in this case), regardless of the diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130 general rating formula for MH disorders.  The panel next considered if the §4.130 rating at TDLR placement met the criteria for a rating higher than the minimum 50% mandated by §4.129.  The §4.130 criteria for the next higher 70% rating requires evidence of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  The panel agreed that the §4.130 criteria for a rating higher than 50% were not met near the time of separation, and therefore the minimum 50% initial TDRL rating is applicable.  

The most probative source of comprehensive evidence on which to base the permanent rating is the 11-month post-separation C&P psychiatry examination.  The §4.130 criteria for a 10% rating requires evidence of symptoms controlled by continuous medication.  A 30% rating requires evidence of occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks.  The C&P examination noted the CI reported nightmares, sleep difficulty, irritability and frequent fights.  The MSE showed a depressed mood and constricted affect.  He continued therapy and medications since discharge but had stopped medications at one point and symptoms returned.  At the time of the C&P examination, he was employed full time, lived with a friend and got along well with his dad.  He reported isolation but had a few friends.  He reported he did not enjoy leisure activities.  His school/work history was tenuous since discharge.  Symptoms and impairment were rated as mild.  There was no evidence of hospitalizations or emergency room visits, but there were claims of gambling and frequent fights.  He reported persistent problems with sleep, anxiety, irritability and depression, and therefore his symptoms more closely approximated the criteria for a 30% disability.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a TDRL placement rating of 50% and permanent disability rating after removal from TDRL of 30% for the MH disorder. 

Low Back Pain.  According to the STR and MEB narrative summary (NARSUM), the CI was injured during an IED blast while deployed in April 2006.  He underwent surgery with L5-S1 decompression and fusion in February 2007.  

The MEB NARSUM examination noted complaints of left lower back pain radiating into the left buttock and posterior left leg that stopped at the knee.  He was in pain about 75% of the time when awake.  He noted numbness in the lateral and plantar aspect of his left foot.  Ice and heat helped the pain somewhat but he could not run or walk more than one mile or stand longer than 30 minutes.  Sit-ups and push-ups bothered his back, but sitting was okay.  He had not worked in his MOS since October 2006 but was performing staff duties.  Physical examination showed mild tenderness but no spasm or deformity.  There was good heel and toe walk and gait and posture were normal.  There were no motor deficits noted in the lower extremities but there was decreased sensation to light touch over the lateral aspect of the left foot and plantar aspect of the left foot.  The lumbar spine range of motion (ROM) study showed flexion of 55 degrees (normal 90) and combined ROM of 195 degrees (normal 240), after repetition.  Forward flexion and left lateral rotation were limited by pain.  All motion was accompanied by pain.  Forward flexion measurements were not reproducible and the examiner noted the CI could flex to 90 degrees while lying supine with legs fully extended.  

At the VA C&P general examination, the CI reported lumbar pain, but activity level was increasing and he was getting better slowly.  The CI noted increased absenteeism (one week) from work due to low back pain with mild to moderate impact on some activities.  There was no negative effect on activities of daily living.  He was still able to lift weights up to 4 hours per day but he did not do squats and other exercises which stressed the back.  This was part of his job at the gym.  Physical examination showed tenderness over the left sacroiliac joint.  Neurological examination was normal with the exception of decreased sensation and pain in the L5-S1 distribution on the left.  There was spasm of the trapezius and latissimus dorsi muscles.  Gait was normal.  The ROM study showed flexion of 75 degrees and combined ROM of 200 degrees.  Pain accompanied motion in most planes. 

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 pain limited flexion of 50 degrees without spasm, radiculopathy, deformity or tenderness.  The VA also rated the back condition 10%, coded 5241, based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than or equal to 85 degrees, and combined ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees.  

Based on the MH disorder and §4.129 constructional TDRL requirements, the panel must determine a rating recommendation for the back condition at TDRL placement and removal.  The NARSUM noted the forward flexion measurements were not reproducible and the CI was able to flex his legs to 90 degrees while in a supine position.  The NARSUM noted all motion was accompanied by pain.  Therefore, panel members agreed the 10% rating and no higher, was justified IAW VASRD §4.59 and §4.40 for painful motion and functional loss.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  

The panel then determined the rating recommendation for the back condition at TDRL removal assigned at the 6 months TDRL interval.  The panel determined the most proximate source of comprehensive evidence, to evaluate the CI at TDRL removal, was the C&P general examination performed 10 months post-separation.  The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees), as reported on the C&P examination.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  

After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a TDRL placement rating of 10% for the back condition and permanent disability rating after removal from TDRL of 10% for the back condition.  

BOARD FINDINGS:  In the matter of the PTSD, the panel recommends a disability rating of 50%, coded 9411 IAW VASRD §4.130 for 6 months from the time of discharge consistent with a constructive period of TDRL and then a permanent separation rating of 30% IAW VASRD §4.130, coded 9411.  In the matter of the back condition, the panel recommends a disability rating of 10%, coded 5241 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 10% IAW VASRD §4.71, coded 5241.  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	RATING	
		TDRL	PERMANENT	
Chronic Low Back Pain	5241	10%	10%	
Post-Traumatic Stress Disorder	9411	50%	30%	
COMBINED	60%	40%	

The following documentary evidence was considered:  

Exhibit A.  DD Form 294, dated 20170312, w/atchs  
Exhibit B.  Service Treatment Record  
Exhibit C.  Department of Veterans Affairs Record  

AR20190008405, 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 recharacterize your separation as a disability retirement with the combined disability rating of 40%.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The constructive TDRL period and the recharacterization of your separation as a disability retirement 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 40% 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.  Inquiries 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.