RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXXXX	CASE: PD-2017-03799
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20060811

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E6, Motor Transport Operator, medically separated for “low back pain” and “major depressive disorder [MDD],” 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 - 20060707	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5243	10%	No VA Examination Proximate to Separation in Evidence	
MDD	9434	10%		
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: NA	

ANALYSIS SUMMARY:

Low Back Pain. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in March 2004 after a fall. An MRI showed a herniated disc at L5-S1 and electrodiagnostic studies were compatible with S1 radiculopathy. During the 30 March 2006 MEB NARSUM examination, 4 months prior to separation, the CI complained of back pain exacerbated by prolonged sitting or standing. Physical examination showed a normal gait. He had full range of motion (ROM) and normal motor strength in all extremities. The remainder  of  the  neurological  examination  was  normal. Thoracolumbar  spine  ROM  testing

revealed flexion of 40 degrees (normal 90) and combined ROM of 140 degrees (normal 240). The MEB examination, 7 months before separation, recorded identical ROM measurements.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome [IVDS]), citing “thoracolumbar ROM limited by pain, tender to palpation.” There was no VA Compensation and Pension examination proximate to separation in evidence.

Panel members agreed 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 MEB and NARSUM examinations. There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition. 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 5243.

MDD. According to the STR and MEB psychiatric addendum, the CI developed symptoms of depression while deployed to Kuwait during the period February 2004 to February 2005. The CI began treatment for depression in February 2005. There was no evidence of treatment for any mental health (MH) symptoms during deployment. There were no documented visits to the emergency room (ER) for MH symptoms or psychiatric hospitalization for suicidal ideation.

The 26 April 2006 MEB psychiatric addendum to the NARSUM, 3 months prior to separation, noted complaints of depression, anxiety and insomnia. The CI noted that his father died in July 2004 while he was deployed in Kuwait. He said that his father was “my brother.” The CI was prescribed psychotropic medication that was still being adjusted. The mental status examination (MSE) was unremarkable with the exception of mood described as “down,” and affect was anxious and constricted. The examiner noted the CI’s symptoms had slightly improved with new medication that was still being adjusted.

On 1 June 2006 the commander stated, “In my opinion, there is some doubt as [to the CI’s] physical ability to perform in his [primary military specialty] at any time, any place, or under any conditions.” There was no mention of his depression or any other MH condition interfering with performance. The commander also noted the CI’s performance had been satisfactory and he worked full 8-hour duty days except for when he had appointments.

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 outpatient treatment” with “mild social/industrial impairment.” Panel members first considered if the provisions of VASRD§ 4.129 (a mental disorder that developed in service as a result of a highly stressful event) were applicable. The CI reported he did not witness any war action, but saw dead people on the roads of Kuwait from motor vehicle accidents; however, a specific traumatic event leading to a  mental disorder did  not  occur.   Therefore,  panel  members agreed, the  requisite
§4.129 link between a stressor to the psychiatric condition was not adequately satisfied.

The panel considered the absence of ER treatment or hospitalization, and the apparent stability of symptoms during the 12 months prior to separation. The psychiatry addendum noted the CI’s condition was stable but had not improved significantly. His new medication was still being adjusted. The MSE was essentially normal except for a “down” mood and restricted range of affect. The panel also noted a MH disorder was not implicated in the commander’s statement as interfering with duty performance. There was no indication that his MH disorder had a negative impact on his ability to function at work, at home or in the community. At the time of the NARSUM, there was no report of chronic insomnia, panic attacks or problems with concentration or memory.  The NARSUM noted the CI had limited treatment.

Panel members agreed, the 10% rating and 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.” 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 low back pain, the panel recommends a disability rating of 20%, coded 5243 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	
Low Back Pain	5243	20%	
Major Depressive Disorder	9434	10%	
	COMBINED	30%	

The following documentary evidence was considered:

	PD-2017-03799

AR20190012174, XXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a permanent 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 permanent 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), XXXXXXXXXXXXXXXXXXX.

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

	PD-2017-03799