RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02568
BRANCH OF SERVICE:  Army	BOARD DATE:  20141031
SEPARATION DATE:  20050524

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Military Policeman) medically separated for major depressive disorder (MDD) and low back pain (LBP).  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB).  The “MDD vs adjustment disorder with depressed mood …” and LBP conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated MDD and LBP as unfitting rated 10% and 10%, respectively, with cited application of AR 635-40 for rating MDD and likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI demanded a formal hearing to which the IPEB responded by affirming its recommendation.  Concurrently, the CI applied for continuation on active duty (COAD).  The COAD request was denied and the CI withdrew his demand for a formal hearing, accepting the findings of the IPEB.  The CI was then medically separated.

CI CONTENTION:  The applicant makes no contentions, his complete submission, with attachments, is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the 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.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to 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 at the time of separation.  The Board 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 Board 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 IPEB – Dated 20050201	VA - (3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Major Depressive Disorder	9434	10%	Depressive Disorder, NOS	9434	10%	20050902	
Low Back Pain	5243	10%	Lumbar Myositis s/p Lumbar Diskectomy	5237	20%	20050816	
No Other MEB/PEB Entries 	Other x 5	
Combined:  20%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20050926 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Major Depressive Disorder Condition.  The narrative summary (NARSUM) psychiatry addendum, dated 8 November 2004, noted that the CI reported becoming distraught in April 2004 following federal charges related to a loan (charges were later dropped).  He was feeling isolative with crying episodes, not sleeping well, and feeling anxious and irritable.  He was hospitalized for 2 days in April 2004 and then had three episodes of day treatment (partial hospitalization with the second episode being incomplete) with the final treatment from 10 October through 3 November 2004.  His NARSUM complaints were problems with his memory, being isolative, feeling irritable and anxious, and being separated from his wife and children.  His mental status examination (MSE) was normal with good eye contact, clear and unpressured speech, no flight of ideas and grossly intact cognition.  The CI was on three medications (Wellbutrin, Clonazapam and Prozac) and had a pending psychiatric follow-up appointment at the time of the NARSUM.  The diagnosis was MDD and impairment for military duty was “Marked,” with impairment for social and industrial adaptability “Mild.”

The CI’s Physical Profile specified an S-3 profile and inability to carry and fire his weapon, but did not specifically attribute this restriction to either the back or the psychiatric condition.  The commander’s comments, dated 19 August 2004, stated the CI’s performance as a Military Policeman had been outstanding and specifically stated that the CI’s profile prohibited him from conducting his duties.  He did not specify any cause (back or psychiatric), but did state the CI “cannot physically perform his duties ….”

In an appeal letter to the PEB dated 10 February 2005 which contested his LBP rating, the CI stated:  “… my family relation are not the same, my mental health is under control by medication and therapy.”

At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI stated that he had not worked since 24 May 2005 (his separation from service); he lived alone and had been separated from his wife since December 2004.  He was receiving unemployment compensation.  The examiner for his C&P exam stated:  “He reports that he has had many problems at work; and that was told that he could complete 20 years of service if he went back to Iraq, where he reports having been on six occasions.  He reports that he refused to, and was given severance pay discharge.  He reports that he investigated cases even against fellow workers; and that the working situation was very difficult for him and very tense; getting him depressed, anxious and feeling very bad.”  The CI stated that his only medication was Ambien for sleep, as his other medications caused headaches.  He reported that he woke up frequently during the night, was always anxious and tense, was angry with himself and got very depressed, had frequent quarrels with his wife and children, and had a lack of desire to do anything.  On MSE he was clean and neatly dressed and groomed.  He was alert; his mood was somewhat anxious and depressed; and his affect was constricted.  His attention was good, concentration was fair, memory was fair, speech was clear and coherent, and insight and judgment were fair.  

The CI reported that he had no impairment of thought processes or communications; he had no delusions or hallucinations; he was not suicidal or homicidal; he kept his personal hygiene and did other activities; and he had no obsessive or ritualistic behavior.  His Global Assessment of Functioning was 70, in the range of “some mild symptoms.”  The diagnosis was depressive disorder, not otherwise specified.

The VA conducted a follow-up disability rating determination (VARD) on 27 March 2008 (nearly 3 years after separation).  They noted that the member “no-showed” for a mental health evaluation in March 2008 and that VA treatment records from April 2007 to January 2008 reported no history of complaints or treatment for mental conditions.  They continued their 10% rating.  A VARD dated January 2014 referenced a VA exam dated 10 January 2014 as showing some improvement with no change in rating.
The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated a 10% rating for MDD, stating, “… requires psychotropic medication and outpatient treatment rated as mild social and industrial impairment” which mirrors language from AR 635-40 and DoDI 1332.39 (rescinded).  The VA also awarded a 10% rating for depressive disorder.  The Board first considered if the CI’s unfitting MH condition was due to traumatic stress or a highly stressful event to warrant application of VASRD §4.129 (Mental disorders due to traumatic stress).  All Board members agreed that the evidence of the record did not support a traumatic stressor as the cause of the mental condition for application of VASRD §4.129.

As regards the permanent rating recommendation, all members agreed that the §4.130 threshold for a 50% rating was not approached and that the criteria for a 0% rating were well-exceeded.  The deliberation settled on arguments for a 30% versus a 10% permanent rating recommendation.  The VA rater’s rationale for a 10% rating was not well-elucidated in the rating decision since the CI was unemployed and had three partial hospitalizations in the prior year.  The Board deliberated if the commander’s statement and CI’s memo to the PEB indicating good control of his MDD supported a 10% rating recommendation, although the evidence of one in-patient and multiple partial hospitalizations (within weeks of the NARSUM, and approximately within 5 months of separation), separation from his wife and the symptoms described at the two exams favored a 30% rating IAW VASRD §4.130.  The Board adjudged that an evaluation of 30% is warranted since there was occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although the CI was generally functioning satisfactorily.  After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the mental health condition.

Low Back Pain Condition.  In the NARSUM, the CI reported that he had onset of LBP while performing an arrest in Panama on 13 July 1998.  The next day he was transported to a civilian hospital in Panama and underwent back surgery (laminectomy of herniated disc).  He returned to Puerto Rico and his LBP persisted despite physical therapy and pain management.  Magnetic resonance imaging performed on 24 November 2004 showed a disc bulge (of L4-5) with mild pressure on the left  L5 nerve root, as well as evidence of the surgery (status-post left L4 laminectomy), arthritis (moderate L4-5 degenerative disc disease) and possible muscle spasm (“straightened curvature: kindly correlate for muscle spasm”).  The CI also reported that he had numbness and tingling sensations of his legs; had flare-ups four to five times a week that was relieved with rest, medications, transcutaneous electrical nerve stimulation unit, and physical therapy; had no bowel or bladder problems and required the use of a cane.  On examination, the CI had normal gait; had slight tenderness to palpation bilaterally in the lower back; and had normal neurological examination with normal reflexes, sensations, and strength in all four extremities.  There was no documentation of physician prescribed bed rest documented.

At the C&P exam performed 3 months after separation, the CI complained of daily LBP with stiffness of the lower back, as well as swelling around his low back surgical scar.  He also complained of radiation of pain into left lower extremity down to the sole of the foot, but no fecal or urinary incontinence.  The CI could walk about 10 minutes and have increased LBP and did not use any assistive device (e.g., cane) for ambulation.  On examination, the CI had normal gait, normal neurological and motor exam, and had no postural abnormalities or abnormal curvature of the spine (no specific mention of muscle spasm).

The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~6 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep	
Flexion (90 Normal)	80	85	
Combined (240)	190	225	
Comment	Tender; normal gait and contour	Flexion “with pain;” the scar did not limit motion	
§4.71a Rating	10%	10% (VA 20% see text)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10% coded 5243 (Intervertebral disc syndrome) while the VA rated the back at 20% coded 5237 (Lumbosacral strain), both using the general spine rating formula.  However, both source exams met the 10% ROM criteria for the thoracolumbar spine, while the formal VA Rating Determination quoted the cervical ROMs to achieve their 20% rating.  There was insufficient documentation of any incapacitating periods for any higher alternate rating under the Formula for Rating Intervertebral Disc Syndrome.  Symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease is considered under rating IAW the general spine formula.  The CI had complaints of peripheral nerve involvement (leg numbness and tingling) the neurologic exams were normal without any evidence of weakness.  There was scant evidence of duty interference from any peripheral nerve condition and the Board adjudged that there was insufficient evidence for any unfitting peripheral nerve condition.

A higher rating of 20% would not be indicated unless there was forward flexion of the thoracolumbar spine greater than 30 degrees but not 	greater than 60 degrees; or, the combined ROM of the thoracolumbar spine was not greater than 120 degrees or, there was muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the LBP condition.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As discussed above, PEB reliance on AR 635-40 for rating MDD was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the MDD condition, the Board unanimously recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  
In the matter of the LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Major Depressive Disorder	9434	30%	
Low Back Pain	5243	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131203, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				XXXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20150008386 (PD201302568)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)					
CF: 
(  ) DoD PDBR
(  ) DVA