RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: ARMY

CASE NUMBER: PD0900227 BOARD DATE: 20100909

SEPARATION DATE: 20060925

SUMMARY OF CASE: This covered individual (CI) was a National Guard SGT (21E, Heavy Construction Equipment Operator) medically separated from the Army in 2006 after 2 years of active and 11 years of combined service. The medical basis for the separation was Chronic Low Back Pain (LBP) and Post Traumatic Stress Disorder (PTSD). The CI was injured by an explosion in May 2005 in Iraq. He was thrown off his feet and injured his back. He had no loss of consciousness, but did have disorientation and hearing loss, vertigo and tinnitus. There are indications that he was medically evacuated within theater, was scheduled for evacuation from theater, but continued his tour of duty. He was treated with multiple medication injections in Iraq and continued to have LBP. On return to the States, he continued medical treatment and Pain Management for LBP. Imaging showed multiple bulging lumbar discs, and the CI had no physical therapy. He was treated with TENS, oral narcotic medication, and injected medication. The CI endorsed symptoms suggestive of PTSD while in medical hold and on “returning from Iraq, he began to consume high quantities of alcohol on a daily basis. This resulted in several alcohol related incidents and referral to ASAP (substance abuse program).” The CI was diagnosed with PTSD with stressors attributed to his deployment in Iraq. He “required psychiatric hospitalization due to safety and acute alcohol intoxication.” He was started on individual therapy and medications with moderate reduction in symptoms. The CI’s multi-substance abuse (alcohol, narcotic pain medications and cocaine) had been in remission for three weeks at the time of the Psychiatric Addendum. The CI’s tinnitus, benign positional vertigo, and hearing loss were under treatment. The CI did not respond adequately to perform within his military occupational specialty, was issued a permanent P-3, L-3, H-3 and S-3 profile and underwent a Medical Evaluation Board (MEB). Low Back Pain, Vertigo and PTSD were addressed in the narrative summaries (NARSUM) and addendums and forwarded to the Physical Evaluation Board (PEB) on the DA Form 3947 as medically unacceptable IAW AR 40-501. Alcohol Dependence, Cocaine Abuse, and Narcotic Pain Medication abuse, as identified in the rating chart below, were forwarded on the DA Form 3947 as medically acceptable conditions IAW AR 40-501. No other conditions appeared on the MEB’s DA Form 3947 submission. Other conditions included in the NARSUM and Disability Evaluation System (DES) packet will be discussed below. The informal PEB adjudicated the LBP and PTSD conditions as unfitting, rated 10% each; with possible application of the US Army Physical Disability Agency (USAPDA) pain policy and probable application of DoDI 1332.39 (E2.A1.5) respectively. The CI made an appeal of the PEB, which was upheld at the PEB level. The CI was scheduled for a Formal PEB, but apparently withdrew his appeal, and was thus medically separated with a 20% combined disability rating.

CI CONTENTION: “I was not aware of the procedure of medical board and there was no help from the command 655th ASG FT Drum NY which was an Army reserve unit that didn't see any combat. There was minimal testing for my conditions after being wounded in Iraq 05. The VA in Elsmere DE diagnosed me with a Traumatic Brain Injury I was deemed incompetent due to the condition and was evaluated on PTSD also. My vertigo was not addressed on my medical board papers I was given 10% for my back injury. I was not given a chance to submit a 2nd rebuttal for a formal hearing I was told by Capt. Tanner and Col Clark to take the 20%;' and the severance pay NOT BEING AWARE I would have to pay it back to the VA when I received my disability. It is funny how I was pushed out of active duty with 20%. I was also not treated for many injuries I listed when I returned. The VA award was given at first was 80% and unemployable, have now received 100% for PTSD and TBI due to problems I've had as a civilian. My lower back and neck are in the 50% range there is a lot of nerve damage that I was given percentages for through the VA. I will attach letters from my command at the 655th ASG backing my claims and also from my VA rep in FT Drum who also was fighting for me to be treated for injuries that I was told to go to the VA for them. I was told I could only list so many things on my medical board by Major Sultan our nurse. If I was deemed incompetent from the VA why was I competent from the army, why was I given a DoD card from the army saying permanent disabled.”

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RATING COMPARISON:

*PTSD increased to 100% effective 20080610; Bilateral Feet (5003 at 10%) effective 20061103; Post-Traumatic Headaches 10% from 20071107

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ANALYSIS SUMMARY: VA records indicate that the CI died on 16 May 2009 from adverse reaction to the combined effects of methadone, hydrocodone and ethanol. It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s statements in the application regarding suspected DES improprieties in the processing of his case. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations compared to Veterans Administration Schedule for Rating Disabilities (VASRD) standards, as well as the fairness of PEB fitness adjudications. The CI's request will of course remain with the application as it is processed.

PTSD Rating Recommendation. The PEB rating, as noted above, appeared to be derived from DoDI 1332.39 and preceded the promulgation of the NDAA 2008 mandate for DOD adherence to VASRD 4.129. IAW DoDI 6040.44 and DOD guidance (which applies current VASRD 4.129 to all Board cases), the Board is obligated to recommend a minimum 50% PTSD rating for a retroactive six month period of Temporary Disability Retired List (TDRL). The Board must then determine the most appropriate fit with VASRD 4.130 criteria at six months for its permanent rating recommendation. The MEB psychiatric evaluation including post-MEB difficulties noted below, would rate no higher than 50% IAW §4.130 criteria, and the minimum TDRL rating of 50% applies. The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the VA Psychiatric examination two months after separation along with post-PEB incidents, and VA treatment notes. The CI was noted to have legal difficulties and behavioral problems following the PEB, but before separation (DOS 20060925) as noted on a letter from the Fort Drum Commander dated 20061003 banning the CI from the base due to:

“On September 14, 2006, you voiced threats to counselors at Behavioral Health Services on Fort Drum. On 14 Jul 06, you were titled by Military Police for disorderly conduct when you argued with your Commanding officer. On July 18, 2006, you reported in an absent without leave status. On Jun 8, 2006, you tested positive for cocaine during a unit urinalysis test.”

At the VA examination 2 months after separation, the CI was non-compliant with PTSD medications and continued with substance abuse (Alcohol, Cocaine, and Marijuana). The pre-service history was notable for numerous disciplinary and legal problems, with numerous in-service disciplinary charges with two incarcerations noted. The examiner indicated “Antisocial Personality predates PTSD but is not causative.” The CI was not working, was separated from his wife, and was living with a girlfriend (“starting to argue)”. Summary of symptoms was: hostile, suspicious and irritable; mood was good but affect was inappropriate; oriented to person, place, and time; had a short attention span and some inappropriate behavior; no delusions or hallucinations; no panic attacks; denied homicidal or suicidal ideation; memory was mildly impaired; insomnia; combat related nightmares; poor impulse control; recurrent and intrusive and distressing recollections of Gulf War experiences; avoidance of thoughts, feelings, and conversations of the Gulf War; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; restricted range of affect; irritability; difficulty concentrating; hypervigilance; and exaggerated startle response. The examiner stated “Prognosis is poor due to poor impulse control and active substance abuse” and “Unable to work due to severity of PTSD sx (symptoms).” Global Assessment of Functioning (GAF) was assessed in the range of serious symptoms (GAF=45) compared to the MEB GAF of 60. VA notes indicated symptoms and disability persisted despite the CI restarting medications. Four months after separation, the CI was discharged from an inpatient VA PTSD treatment program for “lying to obtain inpatient medical records.” The record indicates in a note dated 20071007, that the CI was being seen at the Wilmington Vet Center since one month after discharge (20061017). The therapist indicated “severe depression and PTSD” and “His anxiety and depression are paralyzing and often prevent him from leaving his home. Furthermore, he has great difficulty concentrating, focusing upon, and remembering important details.” The CI was hospitalized 21 months after separation (20080610) for an apparent overdose (alcohol and cocaine), and homicidal ideation. Effective 20080610, the CI was rated 100% for of Post-traumatic Stress Disorder with alcohol & drug abuse/Traumatic Brain Injury (TBI) (also claimed as depression, an adjustment disorder, and a personality disorder). One month following hospitalization, the CI’s GAF was 35 and the VA proposed a finding of incompetence confirmed in VARD 20080804. The record indicates the CI died on 20090516 from an adverse reaction to the combined effects of methadone, hydrocodone, and ethanol. All Board members agreed that the record was insufficient to support a 100% rating under §4.130 based on the two month evaluation and projection to the CI’s condition at the six month rating period, and that the 30% threshold was well exceeded. The Board deliberated therefore primarily between 50% vs. 70% as the permanent rating recommendation IAW §4.130. The VA rated the two month exam IAW VASRD §4.130 without applying provisions of §4.129. Independently rating this exam was closest to the 50% rating criteria IAW VASRD §4.130. The record clearly indicated the CI’s PTSD condition became more symptomatic following that exam. The CI’s multi-substance abuse and personality disorder were adjudged to increase the severity of the CI’s mental health disability; However, no deduction for either issue was considered justified: substance abuse as “self-treatment” of PTSD symptoms is a common finding, and there was additionally no pre-deployment indicators of substance abuse; Personality disorder is not a ratable condition and no pre-service disability was demonstrated. The CI’s TBI may have contributed to the CI’s PTSD symptoms and are correctly considered under the general rating criteria IAW §4.130. The CI’s hospitalization in 2008 was adjudged to be worsening of the CI’s condition beyond the 6 month rating period. The Board had to speculate on the CI’s condition at the six month rating period using all of the evidence in the record. Although the preponderance of the evidence appears to favor a 50% rating IAW VASRD §4.130, an argument remains for a 70% rating supported by the principle of reasonable doubt. After due deliberation, the Board agreed that a permanent PTSD rating of 50% is the most representative of impairment and a fair recommendation in this case.

Back Condition (LBP) and Contended Leg Nerve Injury. There were three exams with one goniometric range-of-motion (ROM) evaluation in evidence as well as VA treatment notes which the Board weighed in arriving at its rating recommendation.

In-service imaging demonstrated mild degenerative changes in the lumbar spine and minimal disc bulges. The orthopedic assessment indicated no non-pain radiculopathy. Some exams in the record indicated radiating pain which is considered under the general criteria for rating diseases and injuries of the spine. The VA examination 2 months after separation noted pain with intermittent radiation to the left thigh, use of a TENS unit, and use of a cane. ROMs could not be determined as “Veteran denied to perform active range of motion or repetitive range of motion because of vertigo and pain.” The VA radiographs showed mild degenerative changes and noted “mild scoliosis thoracolumbar vertebra.” The VA exam would independently be rated at 10%. On the VA Rating Determination, for 20% for this condition, the VA applied §4.3 reasonable doubt, in their rating determination; the rater indicated:

“The cited VA medical records show continual complaints and treatment for your thoracolumbar spine. Examinations noted tenderness to palpation of paravertebral muscles of the lumbar spine. On January 2, 2007, range of motion was noted as "about 0 to 70 degrees of forward flexion and about 0 to 20 degrees of lateral flexion". Your gait was noted to be unremarkable. Notes of February 23, 2007, showed paraspinal muscle spasms left greater than right, local tenderness, and flexion and extension "restricted". Your gait was noted to be antalgic.”

VA neurological examination of 20070102 noted numbness of the right big toe, definite weakness throughout the big toe, as well as some decreased sensation to pin-prick, touch, and vibratory sensation in the toe. The Board adjudged that this level of sensory and motor loss was not indicated at the time of separation and there was no indication that a peripheral nerve deficit was unfitting at the time of separation. There is therefore no indication for adding a peripheral nerve condition as additionally unfitting or ratable at separation. The Physical Evaluation Board (PEB) and VA chose different coding options for the condition, but this did not bear on rating. The PEB’s DA Form 199 reflected possible application of the US Army Physical Disability Agency (USAPDA) pain policy for rating, but its 10% determination was consistent with §4.71a standards. The Board determined that the PEB’s 10% rating for entry into the constructive six month TDRL period for PTSD was substantiated and correct absent the pain rule. The Board adjudged that the CI’s back condition at the six month post-separation timeframe had materially worsened as indicated by the VA exam and treatment note indicating muscle spasm, abnormal gait and mild scoliosis on imaging. All evidence considered, there is not sufficient reasonable doubt in the CI’s favor to change the PEB’s 10% rating determination for the back condition on entry into the constructive TDRL period. The VA record indicated that the CI’s back exam met the 20% rating criteria at the conclusion of the six month constructive TDRL period.

Other DA Form 3947 Conditions (Vertigo, Alcohol Dependence, Cocaine Abuse and Narcotic Pain Medication Abuse).

Vertigo. The condition was judged to be medically unacceptable IAW AR 40-501 standards, by the MEB and was profiled on the permanent profile of 20060323. There was no specific mention of Vertigo in the Commander’s statement. The CI’s vertigo was noted in the NARSUM and multiple treatment notes. Symptoms of dizziness with bending over that could last 20 minutes were noted. The CI was on chronic medication and exercises for vertigo. The PEB adjudicated this condition as not unfitting. The VA initial rating of 10% was changed to 30% based on exam of 20080319 that indicated daily use of meclizine and difficulty with bending over and almost stumbling indicating “dizziness with occasional staggering.” The VA retrospectively reviewed records that indicated that the condition had been at that level historically and the 30% rating was effective the day after the CI’s date of separation. All evidence considered, there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB fitness adjudication for the Vertigo condition.

Alcohol Dependence, Cocaine Abuse and Narcotic Pain Medication Abuse. These are conditions that are considered “conditions and circumstances not constituting a physical disability” IAW DoDI 1332.38 E5, and IAW the VASRD and are therefore not subject to addition as unfitting conditions at the time of separation.

Other Conditions (Contended Traumatic Brain Injury [TBI] Including Tinnitus, Neck and Arm Nerve Injury). Contended issues of being deemed “incompetent” and/or “unemployable” are considered under the CI’s unfitting PTSD condition. Tinnitus and exposure to blast injuries with post-concussive symptoms are adjudged to be DES considerations of TBI sufficient to allow the Board to adjudicate these conditions. The Tinnitus was noted to be distracting and required a sound masking device. Speech recognition was noted to be retained and there were no indications that the Tinnitus by itself rose to the level of being unfitting. The symptoms retrospectively attributable to TBI were vertigo, tinnitus and possible memory and concentration deficits. As the concentration and memory issues are considered under the CI’s unfitting PTSD condition, there is not sufficient evidence for non-mental health related TBI symptoms to be considered independently unfitting at the time of separation. There is no indication in the DES file of neck or upper extremity diagnoses or complaints. They are not noted on the MEB history and physical, Narrative Summary or addendums. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The neck and arm conditions and any contended conditions not covered above remain eligible for Army Board for Corrections of Military Records (ABCMR) consideration.

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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 possible reliance on the USAPDA pain policy for rating the lower back condition and most likely reliance on DoDI 1332.39 for rating PTSD were operant in this case and the conditions were adjudicated independently of that policy and instruction by the Board. In the matter of the lower back condition, the Board unanimously recommends a rating of 10% coded 5237 IAW VASRD §4.71a for entry into the constructive TDRL period and an increase to 20% for final permanent rating. In the matter of the PTSD condition, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed; and, by a vote of 2:1, recommends a 50% permanent rating at 6 months IAW VASRD §4.130. The single voter for dissent (who recommended a 70% permanent 9411 rating) did not elect to submit a minority opinion. In the matter of the vertigo condition, the Board unanimously recommends no recharacterization of the PEB adjudications as not unfitting. In the matter of the TBI and Tinnitus conditions or any other medical conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

RECOMMENDATION: The Board recommends that the CI’s prior separation be recharacterized to reflect that, rather than discharge with severance pay, the CI was placed on the TDRL at 60% for a period of 6 months (PTSD at 50% IAW §4.129 and DoD direction) and then permanently retired by reason of physical disability with a final 60% rating as indicated below.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20090223 w/atchs.

Exhibit B. Service Treatment Record.

Exhibit C. Department of Veterans' Affairs Treatment Record.