RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01689
BRANCH OF SERVICE:  Army	BOARD DATE:  20150522
SEPARATION DATE:  20071109

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Wheeled Vehicle Mechanic) medically separated for spinal fusion with chronic low back pain (LBP) and posttraumatic stress disorder (PTSD).  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 duty and referred for a Medical Evaluation Board (MEB).  The spinal fusion with chronic LBP and PTSD conditions, characterized as “chronic low back pain” and “posttraumatic stress disorder,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “spinal fusion with chronic low back pain” and “PTSD” as unfitting, rated 10% and 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I wanted to continue military service however could not as a result of the disabilities incurred. I could not continue work as a mechanic which was my desired area of the civilian workforce due to the injuries. I have chronic pain as a result and thus a decreased quality of life. It has made caring for my children difficult due to inability to lift heavy objects and so forth.”

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 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 Admin Correction – Dated 20070813 | VA - (3 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam

Spinal Fusion w/Chronic Low Back Pain

5241

10%

Residuals of Posterior Fusion at the L4-5 Level of the L
umbar Spine (claimed as lower and upper back condition)

5242

10%

20070823

Posttraumatic Stress Disorder | 9411 | 10% | Post Traumatic Stress Disorder | 9411 | 10% | 20070829
Other x 0 (Not in Scope) | Other x 8 |
Combined:  20% | Combined:  20%
Derived from VA Rating Decision (VARD) dated 20071106 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Low Back Condition.  The service treatment record (STR) historically noted that the CI first injured his back while moving equipment in April 2002.  Initial X-rays were normal and although physical therapy (PT) was his mainstay of treatment, his back pain remained.  A magnetic resonance image performed in April 2004 revealed lumbosacral disc disease with narrowing of the spinal column.  He additional developed paresthesia (abnormal sensation) into both legs.  Failing conservative treatments to include epidural steroid injections, the CI underwent an L-4 laminectomy and spinal fusion with instrumentation on 16 August 2005.  Post-operatively, his leg symptoms resolved, but the back pain remained.  Eventually, he was cleared to deploy in September 2006 and within a month was returned home due to worsening back pain.  Orthopedic follow-up did not recommend additional surgery, but rather a continuation of PT during MEB processing.  At the MEB examination (5 months prior to separation), the CI reported continued LBP (6/10 pain scale) made worse by “prolonged standing/walking, bending, lifting or carrying weight, movement after prolonged sitting or lying down, and with impact activity.”  His physical examination (PE) revealed a well-healed back scar and no motor, sensory, or reflex abnormalities in either leg.  There was midline spinal tenderness throughout the thoracolumbar and sacral spine as well as decreased range-of-motion (ROM).  There was no comment in regards to an altered gait or abnormal spinal curvature.  The examiner stated, “He will likely continue to have LBP with physical activities, and especially with military duties and activities. He is able to perform the activities of daily living.”  His diagnosis remained chronic LBP status-post surgical description.  His permanent profile implicated the same diagnosis and the commander’s statement clearly indicated that his physical limitations prevented him from performing his military duties.  At the VA Compensation & Pension (C&P) examination (3 months prior to separation), the CI reported aching, sticking and sharp LBP elicited by physical activity and relieved by rest and medication.  The CI additionally noted, “…being incapacitated to the extent of requiring bed rest on eight occasions during the past year for 21 days.”  His functional impairment was described as “decreased ROM.”  Under the heading of “review of symptoms,” the VA examiner stated, “In general, [the CI] can sustain heavy physical activities without immediate distress.”  The PE revealed a well-healed back scar and non-painful decreased ROM.  His gait and posture were normal.  Spinal tenderness, muscle spasms, adverse neurovascular findings, nor Deluca criteria were present.  The goniometric 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 ~ 5 Mo. Pre-Sep
(20070619)

VA C&P ~ 03 Mo. Pre-Sep
(20070823)

Flexion (90 Normal) | 65 | 70
Extension (30) | 5 | 10
R Lat Flexion (30) | 5 | 30
L Lat Flexion (30) | 15 | 30
R Rotation (30) | 10 | 30
L Rotation (30) | 10 | 30
Combined (240) | 110 | 200
Comment | painful motion; tenderness | -
§4.71a Rating | 20% | 10%

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA applied similar codes of 5241 (spinal fusion) and 5242 (degenerative arthritis) respectively, which is appropriate to the presenting pathology.  The ROM findings rated by the MEB and VA were similar in flexion, but varied in the combined totals thus yielding different ratings under the VASRD §4.71a General Spine Formula.  Board members considered the probative value between these examinations and agreed that the VA C&P reflected the CI’s condition closest to separation, and therefore assigned it exclusive probative value with respect to the Board’s recommendations.  During the last 12 months of service, the STR reflected a single encounter that recommended a disposition of “sick at home/quarters.”  There was no evidence of VASRD defined incapacitating episodes to achieve a higher rating under an alternate rating code.  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 low back condition.

PTSD.  The PEB rating, as noted above, was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act of 2008 mandate for DoD adherence to VASRD §4.129.  IAW DoDI 6040.44 and DoD guidance (which applies current VASRD 4.129 to all mental health [MH] Board cases), the Board is obligated to recommend a minimum 50% PTSD rating for at least a 6-month period on the Temporary Disability Retired List (TDRL).  The Board must then determine the most appropriate fit with VASRD 4.130 criteria at the end of the TDRL interval for its permanent rating recommendation, based on the facts in evidence which is most probative for that interval.  In this case, the CI’s VA psychiatric rating examination was performed prior to separation and is subject to probative value concerns which will be discussed.  The Board will remain adherent to §4.130 standards as the measure of disability for its permanent rating recommendation, but exercises its prerogative to judiciously scrutinize the probative value and applicability of the evidence to which the §4.130 criteria are applied.  Since the VA psychiatric C&P examination was prior to separation and therefore quite premature for the mandated 6-month MH rating benchmark, the MEB evaluation itself provided a useful baseline and was assigned relevant probative value in the Board’s efforts to arrive at a fair permanent rating recommendation.

The STR summarized that his initial MH treatment was in January 2006 when he was seen twice for suspected depressive symptoms.  The CI then continued counseling through a military One-Source provider for an additional 12 sessions.  He was placed on medication for depression which improved his mood and diminished his irritability.  The NARSUM “specialty care consult” performed on 15 March 2007 (8 months prior to separation) had an Axis I diagnosis of PTSD.  The CI reported uncorroborated traumatic events of firing on and killing an Iraqi male and being involved in a fire-fight during his first deployment in 2003 and experiencing personal fear with overwhelming anxiety during his second deployment in 2006.  “He endorsed nightmares and intrusive recollections of his combat experiences, but did not endorse flashback phenomena.  He notes exaggerated startle responses to loud noises and marked problems with irritability and anger.”  He also experienced significant insomnia.  His mental status examination (MSE) was essentially normal with a mood described as “I’m OK” and a mildly unpleasant affect only when discussing prior traumatic events.  The examiner stated, “His psychiatric symptoms appear to cause minimal impairment to his overall occupational functioning in a garrison environment.”  His impairment was described as “mild” industrial and “moderate” social.  At the VA PTSD examination performed 2 months prior to separation the CI reported recurrent episodes of “increased tension, hypervigilance, over-reactivity to loud noises and sleep pattern disturbance.”  Additionally, he endorsed reacting with intense fear, helplessness and horror and has developed recurrent recollections of his deployed events; experiencing recurrent combat-related dreams less than twice per week.  His physical responses to these recollections include a fast heart rate, easy sweating and a feeling of generalized muscle tension.  Although his MSE was completely normal, his diagnosis remained as PTSD.  His Global Assessment of Functioning was 82; connoting transient symptoms that are expected reactions to psychosocial stressors.

The Board directed attention to its rating recommendation based on the above evidence.  The Board first considered if application of VASRD §4.129 with a constructional 6-month (50% minimum) period on the TDRL was indicated in this case (per Board directive from DoD).  Board members agreed that the provisions of VASRD §4.129 were applicable in this case, noting the association with combat experiences.  The Board then considered if there was evidence for a §4.130 rating higher than the 4.129 minimum mandated 50% at time of TDRL placement  The Board unanimously 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.  In regards to the permanent rating recommendation, all Board members agreed that the finding of an altered affect “only” when discussing prior traumatic events (as depicted in the NARSUM) adequately supported the PEB’s 10% IAW §4.130.  Members then deliberated if the 30% rating criteria was met and concluded that the overwhelmingly normal aspects of the CI’s MSE’s did not support impairment at the 30% level.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a retroactive 6-month constructive TDRL rating of 50% and a permanent rating of 10% for the PTSD condition.

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.  In the matter of the low back condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the PTSD condition, the Board unanimously recommends a disability rating of 50% for a prescribed 6-month period of temporary retirement IAW VASRD §4.129; followed by a 10% permanent rating, coded 9411, IAW VASRD §4.130.  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, effective as of the date of his prior medical separation.

UNFITTING CONDITION

VASRD CODE

TDRL RATING

PERMANENT
RATING

Posttraumatic Stress Disorder (PTSD) | 9411 | 50% | 10%
Spinal Fusion w/Chronic Low Back Pain | 5241 | 10% | 10%
COMBINED | 60% | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140411, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX 
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 XXXXXXXXXXXXXXXXXXXX, AR20150014200 (PD201401689)

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  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
60% disability for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period no recharacterization of the individual’s separation or modification of the permanent disability rating of 20%.

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 as follows:

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

	b.  Providing orders showing that the individual was separated with a permanent combined rating of 20% effective the day following the six month TDRL period with no recharacterization of the individual’s separation.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will provide 60% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service.

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						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD-2014-01689