RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02347
BRANCH OF SERVICE:  Army	BOARD DATE:  20150414
SEPARATION DATE:  20080923

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was a traditional drilling Reserve E-4 (Wire Equipment Repairer) medically separated for low back pain (LBP) and major depressive disorder (MDD).  The conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards, so he was issued a permanent L3S3 profile and referred for a Medical Evaluation Board (MEB).  The LBP and mental health (MH) conditions, characterized as “low back pain” and “major depressive disorder, chronic severe as manifested by depressed mood, anxiety, lack of motivation, chronic pessimism, obsessiveness, social isolation, poor self-esteem, hopelessness,” 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 the LBP condition as unfitting, rated 10% and also adjudicated the MH condition as unfitting, but did not rate it as the condition was determined to have existed prior to service (EPTS).  The IPEB likely applied the Veterans Affairs Schedule for Rating Disabilities (VASRD) to these ratings.  The CI appealed to the Formal PEB (FPEB), which increased the LBP rating to 20% and affirmed the IPEB finding regarding the MH condition rating and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 FPEB – Dated 20080813	VA - (~2 Mos. Pre-Separation and 1 Wk. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5237	20%	Posterior L4-L5 Bulging Disc by Magnetic Resonance Imaging (MRI) Claimed as Chronic Back Pain	5243	10%	20080806	
			Major Depressive Disorder, Chronic with Anxiety Features Claimed as Major Depression and Anxiety Disorder Associated with Posterior L4-L5 Bulging Disc by Magnetic Resonance Imaging (MRI) Claimed as Chronic Back Pain	9434	30%	20081001	
Major Depressive Disorder…	9434	---%					
Other x 0 (Not in Scope)	Other x 8	
RATING:  20%	RATING:  40%	
Derived from VA Rating Decision (VARD) dated 20090129.

ANALYSIS SUMMARY:

Low Back Pain Condition.  A note dated 20 March 2004 indicated the CI was fit for retention with a notation that he was issued a temporary profile for back pain.  A statement of medical examination and duty status dated 7 April 2005 indicated the CI hurt his back while carrying cable rolls on 4 August 2004.  An X-ray series dated 4 August 2004 of the lumbar spine revealed no acute compression fracture or spondylolysis and a transition segment at the lumbosacral junction.  The CI was referred to physical therapy (PT) dated 24 August 2004 for treatment of LBP and thoracic pain.  Follow-up in December 2004 indicated pain improved mildly with therapy, which was concluded in November 2004.  The pain returned with radiation to the buttock and upper thighs.  An MRI revealed a minimal posterior disk bulge at L4-L5 and there was no spinal stenosis or compromise of the foramina (where nerves exit the spinal canal).  Norgesic Forte (aspirin/caffeine/orphenadrine-a pain reliever/muscle relaxant medication) and Ibuprofen, (a non-steroidal anti-inflammatory medication) were prescribed along with a temporary profile.  PT was discontinued in February 2005 pending new medical orders.  The CI was seen in follow-up in February 2006 with back pain radiating to the leg.  An MRI dated 6 September 2006 demonstrated disk space narrowing at L5-S1 with no focal disc herniation and was other normal.  PT was resumed and continued until November 2006.  Thoracolumbar range-of-motion (ROM) measurements in December 2007 were forward flexion 85 degrees and the combined total ROM was 215 degrees.  Repeat ROM measurements in July 2008 were flexion 30 degrees and the combined total ROM was 145 degrees.

A permanent L3 profile was issued on 12 March 2007 with limitation of all military functional activities and physical fitness training.  The MEB narrative summary dated 27 December 2007 indicated the CI indicated that during Army Reserve annual training in 2004, he lifted computer equipment and cables that caused lumbar strain with pain, which felt like a “burning sensation and aching pain” at the lumbosacral area.  Treatment with nonsteroidal anti-inflammatory medication and muscle relaxants afforded no improvement.  An MRI of the lumbosacral spine demonstrated a minimal posterior disc bulge at L4-5.  He was evaluated by Physical Medicine and Rehabilitation and completed a PT, rehabilitation and pain management program.  At the time of the examination, the CI reported constant pain in his lower back associated with muscle spasms and stiffness without bowel or bladder dysfunction.  Pain was exacerbated by prolonged standing, sitting and walking and was relieved by rest and pain medications.  Electrodiagnostic studies in December 2007 were normal.  Examination of the back showed mild to moderate paravertebral muscle tenderness from L2 to S1.  Straight leg raising was negative.  Neurologic examination was with normal limits.  The commander’s statement dated 4 April 2008 indicated his medical condition precluded him to perform his duties, which created a burden on his back condition.  The CI was unable to sit or stand for long periods of time and his availability was not reliable.  Additionally, he was not able to carry the minimum combat equipment and was unable to take the physical fitness test.

At the VA Compensation and Pension (C&P) examination dated 6 August 2008, performed almost 2 months prior to separation; the CI reported an initial injury in 2001 while carrying a duffle bag and an additional injury in 2004 lifting cable rolls.  He described the pain as constant in the lower back with a severity of 7/10.  It was precipitated by standing, sitting or repetitive activities and was not responsive to several years of PT and medication including Tramadol (an opioid pain medication), Norflex (orphenadrine-a muscle relaxant), and Etodolac (a nonsteroidal anti-inflammatory medication).  The CI was told to rest for a day in the year prior to the examination.  He used a cane and was able to walk one to three miles.  The CI had a normal gait with pain on motion and spasm and tenderness of the muscles of the lower spine.  Muscle strength was normal and sensation was diminished in the L4-L5 dermatomes.  It was the examiner’s opinion that the chronic LBP was not caused by, or was the result of, or aggravated by military service.  The CI indicated that his LBP started in July 2001 when he felt pain after a fall about the time he was leaving the completed AIT (Advanced Individual Training); however, there was no supporting Line of Duty Form 2173 or corroborating objective medical documentation in the record.  The VA examiner opined that “although he had consistent treatment of the low back condition since 2004 this is what is expected of the natural progress of lumbar discogenic disease.”

The 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)	PT ~10 Mo. Pre-Sep
(20071204) p.95	MEB ~9 Mo. Pre-Sep
(20071220) p.88	PT ~3 Mo. Pre-Sep
(20080701) p.518	VA C&P ~2 Mo. Pre-Sep
(20080806) p.143-145	
Flexion (90 Normal)	(85)85,85,85	80(81)	(35)35,40,35	40	
Extension (30)	(15)15,15,15	15	(20)28,28,22	10	
R Lat Flexion (30)	(25)25,25,25 	20(22)	(25)22,25,25	25	
L Lat Flexion (30)	(30)30,25,30	20(21)	(15)14,16,18	25	
R Rotation (30)	(30)30,30,30	25(24)	(25)20,20,25	25	
L Rotation (30)	(30)25,30,30	30	(25)20,20,25	25	
Combined (240)	215	190	145	150	
Comment	-	-	-	Loss of motion on repetition due to pain	
§4.71a Rating	10%		10%	20%	20% (VA 10%)	

The Board directed attention to its rating recommendation based on the above evidence.  The FPEB assigned a 20% rating using code 5299-5237 (Lumbosacral strain) for LBP.  The VA assigned a 10% rating using code 5243 (Intervertebral disc syndrome) for posterior L4-L5 bulging disc by MRI claimed as chronic back pain.  The Board considered whether an additional rating could be recommended under a peripheral nerve code.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine conditions.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed with or without 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,” the sensory component, marked by decreased sensation, had limited functional implications, and no motor weakness was in evidence.  Therefore, the radiculopathy could not be recommended for additional disability rating.  The Board then sought a route to a higher rating, but was unable to find one in the absence of sufficient documented incapacitating episodes.  The Board, however, did note the ROM decrement between examinations 9 months and 3 months prior to separation in the absence of an accident, injury, surgery, or other untoward event.  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.

Major Depressive Disorder.  A note dated 4 March 2002, written in Spanish, indicated the CI had a change in mood for 2 months, but the remainder of the note is not legible.  A note specifically related to the CI’s MH was dated 28 November 2006.  The CI “vented feelings of anxiety, helplessness, hopelessness and concerns regarding medical conditions and [his] economic situation.”  His “mood was anxious.”  

He denied suicidal or homicidal ideation plan or intent and reported no visual or auditory hallucinations.  The psychologist interviewer/examiner opined the CI had an anxiety disorder due to a general medical condition and referred the CI to a psychiatrist for evaluation.  At a psychiatric evaluation on 8 December 2006, the CI related back pain to a fall in 2001.  As a result, he “felt ashamed” because he “had no witness” of the event.  Apparently, he had “seen psychiatrists since June 2006” at which time he was prescribed Effexor (venlafaxine HCl-for treatment of depression), “which he used for two weeks only.”  The CI reported “difficulty falling asleep, lack of motivation, sadness, irritability, anxiety, [and] nervousness.”  The examiner’s differential diagnosis included rule out (r/o) MDD versus r/o adjustment disorder with anxiety and depressed mood.  Medication treatment consisted of Effexor XR and Ambien (zolpidem-to help fall asleep).  The MEB psychiatric addendum dated 26 April 2007 reiterated details of the CI’s encounters with the psychiatrist and noted the Axis I conditions to be MDD, chronic severe manifested by depressed mood, anxiety, lack of motivation, chronic pessimism, obsessiveness, social isolation, poor self-esteem, hopelessness, and helplessness.  An S3 permanent profile was issued on 12 March 2007 for the MDD with limitations of full military functional activities and physical fitness training.  On the DD Form 2808, Report of Medical Examination, dated 7 November 2006 for the MEB, the CI reported issues related to loss of memory, frequent trouble sleeping, received counseling, depression or excessive worry and been treated for a mental condition, while the examiner annotated on (DD Form 2807-1) MDD without further details.  Follow-up on 11 January 2007 revealed no response to the Effexor after approximately 21 days.  Financial issues were discussed and the CI stated:  “I have no motivation to do anything.”  The Effexor XR was then continued at a higher dosage.  On 31 May 2007, the CI was noted to be “[r]egressed, tearful, wallowing on his past misfortunes.”  The psychiatrist “emphasized the idea of moving forward with his life; instead of negative self-talk & sabotaging himself.”  The Effexor XR dosage was again increased.  On 5 July 2007 the CI reported almost 100% compliance with the medication and his mental status had improved and his affect appeared more stable as he did not break down in tears and he slept well.  Medication was renewed and the CI was to be followed-up at a VA Clinic.  On the DD Form 2808 for the MEB dated 7 November 2006, the CI reported issues related to loss of memory, frequent trouble sleeping, and depression or excessive worry, while the examiner annotated on DD Form 2807-1 that the CI had MDD without providing any additional details.  A note dated 25 March 2008 from a health clinic indicated the reason for the visit was anxiety discord due to general medical condition and generalized anxiety; and the CI was referred to the VA.  The commander’s statement dated 4 April 2008 did not explicitly refer to a MH condition, but it stated “[t]he present medical condition.”  The use of the word condition rather than conditions, more likely than not, referred to his back diagnosis rather than the MH condition since his limitations were related to the physical part of his MOS.  A statement of medical examination and duty status dated 6 August 2008 indicated that according to the CI’s treating psychiatrist the CI stated his back injury happened to him on AIT in July 2001 that left him unable to work [and he] developed MDD, chronic severe.  A letter dated 2 July 2008 from a fellow soldier indicated the CI was not the same soldier he knew in AIT and “left him in a state of anxiety and depression.”

At the VA C&P examination dated 1 October 2008, a week after separation, the CI referred to continuing feeling depressed with episodes of feeling very anxious, mostly when in pain and unable to stay still in a fixed position.  A day earlier Bupropion (to treat MDD), Clonazepam (a medication used to treat anxiety) and Trazodone (an antidepressant) were prescribed.  Examination revealed a very dry oral mucosa and psychomotor retardation due to the effects of medication.  The examiner relied upon the CI’s service medical record and the MEB psychiatry addendum report for the PEB to conclude that the CI developed his MH condition within the military service as a consequence of the chronic pain and inability to accept his back condition and limitations.  The diagnosis of MDD, chronic with anxiety features was made and the CI’s Global Assessment of Functioning (GAF) was 55 (moderate symptoms).  The symptoms described represented moderate to moderately severe social/occupational impairment.  On 26 November 2008, 2 months after separation, the CI complained “I am a broken soldier.”  He had “anxiety with persistent worry regard his medical condition and what he thinks is the lack of support of his superiors.”  The CI felt depressed and anxious.  He noted he “gained a lot of weight, lost motivation, [had] decreased concentration, abandoned school and [was] not attending to drills.”  The CI “mentioned a traumatic event that occurred to him while he was on ‘active duty’ but he didn’t want to talk about it.”  On examination his mood was anxious and he expressed “that sometimes he thinks that he is being paranoid.”  His insight and judgment were fair.  Referral to a psychiatrist for medication evaluation was considered.

The FPEB assigned no rating using code 9434 for the major depressive disorder citing “The PEB finds no evidence that the Soldier’s current major depressive disorder is directly related to active duty.” The FPEB additionally noted “There is compelling evidence to support a finding that the current condition existed prior to service (EPTS) and was not aggravated beyond the natural progression of such service.”  On 28 August 2008 the PEB reviewed the CI’s rebuttal and found no change to the original findings and noted “The DA Form 3947 states the date of origin is 2006 and you were not on active duty during this time period.”  The VA assigned a 30% rating using code 3434 for the MDD, chronic with anxiety features associated with a posterior L5-L5 bulging disc claimed as chronic back pain.  The Board directs attention to its rating recommendation based on the above evidence.

The Board first deliberated whether VASRD §4.129 (for any “mental disorder that develops in service as a result of a highly stressful event”) is applicable to this case.  All members agreed that the depression was not related to a highly stressful event; and, therefore, VASRD §4.129 is not applicable in this case.  The Board turned to deliberation of a fair rating recommendation at the time of separation derived from criteria of VASRD §4.130 and based on the disability in the STR at the time of separation.  The CI had MDD as his final diagnosis, but also had anxiety as a result of a general medical condition (LBP) and an adjustment disorder.  The CI was unfit as a result of a MH condition at the time of separation.  The problem that the Board must address is whether the condition EPTS.  The evidence linking the depression to a purported back injury is at best tenuous.  One note in 2002 indicated a change of mood, which is the most proximate evidence to the purported, but not reported or documented until years later, back injury in 2001.  Evidence presented by the CI to the PEB to support the linkage of the MH condition to the back condition was about 6 to 7 years removed from the purported back injury and the notes in support of his position were based on his statements to the authors rather than timely objective medical sources for the evidence.  Additionally, the CI drilled with his unit from 2001 through 2004 when he reported back pain from lifting the cables.  However, the MH condition disability could also be connected as the proximate result of the injury in 2004 when presumably performing inactive duty training IAW DoDI 1332.38 (in force at that time) or possibly 1332.39 (still considered in force at that time-rescinded 14 Oct 2008 based on Under Secretary of Defense).  Therefore, the Board considered whether the PEB EPTS designation was applicable and determined it was not IAW DoDI 1332.38 E3.P4.5.2.3 (Presumption of Aggravation) and E3.P4.5.3 (Prior Service Impairments), since even if the argument that the back injury occurred EPTS, it was aggravated by the cables lifting episode in 2004, which is documented, and could also stand alone as the event at which the back pain began or was aggravated.  Therefore, the Board sought a route to rate the MH condition.  A 10% rating requires 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, or; symptoms controlled by continuous medication.  While the CI clearly meets the criteria for a 10% rating, the Board discussed whether he had sufficient symptomatology at separation to warrant a 30% rating that requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) with symptoms of a depressed mood,  anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and  mild memory loss (such as forgetting names, directions, recent events).  The CI had the aforementioned symptoms except for panic attacks along with a GAF of 55 and was treated with both with medication and therapy.  Favoring 10% over 30% because of a re-enlistment was not significant since it was administrative for only 6 months pending resolution of the MEB/PEB proceedings rather than a multi-year enlistment for continuation of service; and having re-enlisted for 6 months; the CI had to and did attend drill.  The fact that the condition was not addressed by the commander’s statement is in itself not delimiting since MH conditions are not always obvious except when acute or severe or are mentioned explicitly to his command or implicitly by behavioral variations affecting performance.  From a documentation standpoint the depression was well addressed in the psychiatrist’s notes.  Therefore, the Board found favor with a 30% rating.  A higher evaluation of 50% requires:  Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  However, the Board determined the CI’s symptoms did not rise to the 50% level.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the MDD 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the MDD condition, the Board unanimously recommends a disability rating of 30%, coded 9434 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; 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	
Low Back Pain	5299-5237	20%	
Major Depressive Disorder	9434	30%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140422, 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 XXXXXXXXXXXXXXX, AR20150014419 (PD201402347)

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