RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX		CASE: PD-2017-04132 BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20080827

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Tracked Vehicle Mechanic, medically separated for “lumbar degenerative disc disease (DDD) bulge and mild left facet arthropathy ” and “anxiety disorder, not otherwise specified (NOS)” each rated 10%, with a disability rating of 20%.

CI CONTENTION: “I was given less than 50% disability rating by the military for my unfitting PTSD upon discharge from active duty.”  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 - 20080506	VARD - 20081009	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar DDD …	5299-
5242	10%	Lumbar Spine DDD with Disc Bulging	5243	10%	20080725	
Anxiety Disorder, NOS with Multiple Components (PTSD And OCD)	9413	10%	Post-Traumatic Stress Disorder (PTSD)	9411	50%	20080725	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:

Lumbar DDD. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began spontaneously in January 2007. He was treated conservatively and the back symptoms resolved.  He subsequently fell while on a rescue mission

and this caused some mild back pain. MRI showed very mild disc disease at L5-S1. During the 29 January 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the physical examination of the thoracolumbar/lumbar/lumbosacral spine revealed para spinal tenderness and muscle spasms on the left. Range of motion (ROM) examination was limited by pain, resulting in decreased flexion, left rotation, and left lateral flexion. Gait was normal.

The 13 March 2008 MEB NARSUM examination, 5 months prior to separation, noted complaints of pain at rest and with activity. He reported he was unable to stand greater than 5 minutes, bend, run, or wear any of the military gear. He reported daily flare-ups, especially in cold weather. Pain lasted about 8 hours and was relieved with stretching, relaxation, and a home TENS unit. He denied decreased ROM due to weakness, incoordination or fatigue. Treatment included physical therapy (PT), numerous medications (e.g. muscle relaxants, nonsteroidal anti- inflammatory agents). Focused physical examination that same day showed a normal gait, 5/5 distal lower extremity strength, normal reflexes and sensation, and negative straight leg raise bilaterally. He was mildly tender in the lower lumbar region and along the para spinal muscles. The 31 March 2007 PT ROM goniometer measurements showed flexion to 65 degrees   (normal
90) and painful combined ROM of 185 degrees (normal 240).

At the 25 July 2008 VA Compensation and Pension (C&P) examination, one month before separation, the CI reported daily pain that radiated to the left hip. He had one episode of incapacitation and was placed on quarters. The CI wore a back brace one or two times per week. He had no back surgery and was able to perform activities of daily living. Physical examination showed a normal posture and gait. Thoracolumbar ROM was flexion to 85 degrees with mild discomfort and combined ROM of 235 degrees. There was evidence of painful motion but no weakness, spasm or tenderness.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the low back condition 10%, analogously coded 5299-5242 (degenerative arthritis of the spine), citing ROM, normal gait and no tenderness or spasm. The VA also rated the low back condition 10%, coded 5243 (intervertebral disc syndrome [IVDS]), based on the C&P examination, citing VASRD rules.

Based on the diagnosis of anxiety disorder and the §4.129 constructional TDRL requirements (outlined below), the panel must determine a rating recommendation for the low back condition at TDRL placement and removal. 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) or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported in the NARSUM. There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis. There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.

The panel then determined the rating recommendation at TDRL removal. The panel determined the most proximate source of comprehensive evidence to evaluate the CI at TDRL removal, was the C&P general examination noted above and VA treatment records for 10 months following separation. The panel found no evidence to support a significant change in ROM to warrant the next higher rating considering the clinical pathology noted on the MRI. Additionally, there was no evidence or worsening reported to the VA based on the VARD dated 16 January 2014 which continued the initial 10% low back rating. Therefore, after due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a TDRL placement rating of 10% and permanent disability rating of 10% for the low back condition.

Anxiety Disorder. According to the STR and MEB NARSUM, the CI’s mental health (MH) condition began after his first tour in Iraq (October 2003-April 2004) but the majority of symptoms began after his second tour to Iraq (October 2005-November 2006). The September 2006 Post- Deployment Health Assessment noted the CI reported seeing wounded, killed, or dead during the deployment but denied engagement in direct combat or ever feeling like he was in danger. However, the CI expressed an interest in receiving help for MH issues. After the second deployment, the CI reported he began to drink, although his alcohol use was not as heavy as after his first tour when he reportedly drank 1.5 bottles of whiskey per day. The CI reported experiencing anxiety attacks, hypervigilance, hyper-startle, isolation and a need for perfectionism. He had a history of perfectionism and rigidity but not to an extreme. Initially he did not seek MH but symptoms worsened when he was told he would be returning to Iraq. The CI self-referred to off-post providers due to partner-relationship problems with his wife. She reported he did not talk to her and was emotionally detached since his return from the second tour of duty.

During the 29 January 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported anxiety, sleep and depression problems. A diagnosis of PTSD was rendered and active counseling with a civilian provider was noted. The 5 March 2008 psychiatric addendum, 5 months prior to separation, noted complaints of mood swings, irritability and excessive worry. Some symptoms had decreased due to medications, which included anti-anxiety as needed, anti-depression/anxiety daily, and two sleep aides. The CI had cut back on his drinking, had a supportive home environment, and was compliant with treatment. The examiner opined occupational impairment was mild. Mental status examination (MSE) showed mildly anxious mood and themes of perfectionism. An Axis I diagnosis of anxiety disorder NOS (PTSD and obsessive compulsive disorder [OCD]) and Axis II. Reference to Cluster C traits was rendered.

At the VA C&P examination, the CI reported irritability, anger, excessive worry, detachment, and sleep disturbance, including nightmares about the military. His wife said he screamed in the middle of the night and would toss and turn all night. At times, he reported he felt numb and unemotional. The CI reported he had been taking an anti-depression medication for the past 2 years with good response. The CI was employed full time as a mechanic. He was married and had a military friend he talked to. He was also attending college. He liked to fish and was not drinking at all. Psychological testing was consistent with major depression disorder (MDD), PTSD and anxiety. MSE revealed the CI denied delusions but reported he saw people who were not there briefly at times. He reported difficulty with short term memory at times and to compensate, took lots of notes. He denied suicidal or homicidal ideation but rarely had fleeting thoughts of suicide. The CI admitted to obsessive thoughts and endorsed some rituals. He would do things until done perfectly. He reported panic attacks came and went but were inconsistent. A diagnosis of PTSD, MDD and anxiety disorder was rendered with a Global Assessment of Functioning score of 60 (moderate bordering on mild symptoms, impairment.) MH treatment noted dated February 2009 indicated the depressive symptoms were “100% better” and the CI was working full time.  He reported an occasional panic attack and some nightmares.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the MH condition 10%, coded 9413 (anxiety disorder, NOS), citing multiple components, including PTSD and OCD, citing mild/transient symptoms. The VA rated the MH condition 50%, coded 9411 (PTSD), based on the C&P examination, citing reduced reliability and productivity. The panel agreed that the stipulations of §4.129 were met in this case based on the components of PTSD included in the MH diagnosis and therefore recommended a minimum 50% rating for a retroactive 6-month period on the TDRL. Members agreed there was no evidence to support a rating higher than 50% at the time of TDRL placement. The panel then turned to its permanent rating recommendation at the time of TDRL removal.

The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case was the C&P examination and treatment notes following separation. The CI had some persisting symptoms, including marital conflict that resulted from his irritability. However, he reported a good response to medications and worked full-time as a mechanic. After due deliberation, considering all 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 the anxiety disorder condition, coded 9413.

BOARD FINDINGS: In the matter of the low back condition, the panel recommends an initial TDRL rating of 10%, coded 5299-5242, in retroactive compliance with VASRD §4.129 as DoD directed; and a 10% permanent rating at 6 months IAW VASRD §4.71. In the matter of the anxiety disorder condition, the panel recommends an initial TDRL rating of 50%, coded 9413 in retroactive compliance with VASRD §4.129 as DoD directed; and a 10% permanent rating at 6 months IAW VASRD §4.130. 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, effective the date of medical separation:

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Lumbar Degenerative Disc Disease Bulge and Mild Left Facet Arthropathy	5299-5242	10%	10%	
Anxiety Disorder, Not Otherwise Specified with Multiple Components (PTSD And OCD)	9411	50%	10%	
	COMBINED	60%	20%	

The following documentary evidence was considered:

PD-2017-04132

AR20190012041, XXXXXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXX

	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 no re-characterization of your separation or modification of the permanent disability rating of 20%.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The constructive TDRL period 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 no re-characterization of your separation or modification of the permanent disability rating of 20% following the constructive six month TDRL period. 

	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.  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), 

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

PD-2017-04132