RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:.                       BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1000539                             SEPARATION  DATE:
20061030
BOARD DATE: 20111220                    PLACED ON TDRL: 20050315


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual (CI)  was  a  National  Guard  SGT/E-5
(88M,  Motor  Transport)  medically  separated  for   posttraumatic   stress
disorder (PTSD), low back pain (LBP), and  obstructive  sleep  apnea  (OSA).
He was treated,  but  did  not  respond  adequately  to  fully  perform  his
required military duties or meet physical fitness  standards.   The  CI  was
issued a permanent profile and underwent a Medical Evaluation  Board  (MEB).
PTSD, degenerative disc disease (DDD) of  thoracolumbar  spine,  obstructive
sleep apnea (OSA), hearing  loss,  and  left  knee  patellofemoral  syndrome
(PFS) were addressed in the narrative summary (NARSUM) and forwarded to  the
Physical Evaluation Board (PEB) as medically  unacceptable  IAW  AR  40-501.
Plantar fasciitis  and  sinusitis  were  listed  on  the  DA  Form  3947  as
medically acceptable.  The informal PEB (IPEB) adjudicated  the  PTSD,  DDD,
and OSA as unfitting; and rated them 30%, 10% and 0% respectively.   Because
his disabling conditions were not sufficiently stable, the CI was placed  on
the Temporary Disability Retired List (TDRL).  In September 2006,  a  second
IPEB was convened.  The CI was removed  from  the  TDRL,  and  was  assigned
permanent disability ratings for PTSD, DDD, and OSA  at  10%,  10%,  and  0%
respectively.  The CI made no appeals, and was  thus  permanently  separated
with a 20% combined disability rating.


CI CONTENTION:  “I was rated 20% by  the  Physical  Evaluation  Board  (PEB)
Proceedings.   PEB  granted  10%  for  Post   traumatic   stress   disorder.
According to 38 CFR 4.129 MENTAL DISORDER DUE  TO  TRAUMATIC  STRESS,  reads
"When a mental disorder that develops in service us a  result  of  a  highly
stressful event is severe enough to bring about the veteran's  release  from
active military service, the rating agency shall  assign  an  evaluation  of
not less that 50 percent and schedule an examination within  the  six  month
period following the veteran's discharge to determine whether  a  change  in
evaluation is warranted."  The Army only granted 10% for PTSD  and  10%  for
Thoracolumbar pain for a combined rating of 20% dated September  28,  2006.”



RATING COMPARISON:

|Second Army IPEB – dated        |VA (two days after separation)* – All    |
|20060928                        |Effective 20050316                       |
|Condition                       |Code                            |Rating |
|Combined:  20%                  |Combined:  90%                           |


* VA Rating Decision dated 1 November 2006 was temporally most proximate  to
the date of CI’s permanent separation from military


ANALYSIS SUMMARY:

Posttraumatic stress disorder (PTSD).  The CI  developed  symptoms  of  PTSD
after his convoy  was  ambushed  in  Iraq.   In  November  2004,  he  had  a
Department  of  Veterans’  Affairs  (VA)  Compensation  and  Pension   (C&P)
evaluation.  At that time, the  CI’s  symptoms  included  forgetfulness  and
hyper-vigilance.  Mental status examination (MSE) was  normal.   The  Global
Assessment of Functioning (GAF) score was 67 (mild symptoms).  The  examiner
diagnosed adjustment disorder with anxiety, and stated “it is unlikely  that
he would experience any significant impairment of his ability to  attain  or
maintain employment.”  At the January 2005 MEB psychiatric  evaluation,  the
CI’s  symptoms  included  irritability,  anxiety,  poor  memory,   and   re-
experiencing the smell of blood.  His marriage was described  as  good.   He
had recently worked as a minister and was attending nursing school.  He  had
completed an intensive  course  of  outpatient  treatment,  but  psychiatric
testing still showed “prominent PTSD-related stress  and  dysfunction.”   On
MSE, his mood was  anxious  and  affect  was  constricted.   There  were  no
hallucinations, delusions, suicidal ideation, speech disturbance,  objective
cognitive impairment  or  other  significant  abnormalities.   The  examiner
opined that the CI’s treatment had  been  maximized,  but  he  “still  shows
significant functional compromise by PTSD.”

The PEB rating, as described above, was likely  derived  from  DoDI  1332.39
and preceded the promulgation of  the  National  Defense  Authorization  Act
(NDAA) 2008 mandate for DoD adherence to Veterans’  Administration  Schedule
for Rating Disabilities (VASRD) §4.129.  The Board must determine  the  most
appropriate final rating IAW VASRD §4.130 criteria.  Since the  Service  was
in compliance with the §4.129 TDRL requirement, the Board need not  apply  a
constructive TDRL interval  in  this  case,  the  50%  minimum  TDRL  rating
remains applicable IAW DoD direction and the Sabo vs United  States  lawsuit
settlement agreement.  The permanent rating should  be  based  on  the  CI’s
level of functioning at the  time  of  permanent  separation  from  military
service.  The VASRD specifies a minimum six month period of  TDRL.   The  CI
was actually on TDRL for about 19 months.   At  his  July  2006  psychiatric
evaluation, the CI  complained  of  memory  problems,  hyper-vigilance,  and
flashbacks.  His  nightmares  and  other  symptoms  had  improved.   The  CI
reported that he was not currently taking any psychiatric  medications,  nor
was he seeing a psychiatrist.  He was unemployed because of back  and  other
joint pain which limited his mobility.  The  CI  was  married  and  on  good
terms with his family.  He attended church on  Sunday,  was  raising  goats,
and he followed the stock market.  MSE revealed a euthymic mood with  normal
affect.  There was no suicidal ideation, delusions,  hallucinations,  speech
disturbances, objective cognitive impairment or  other  abnormalities.   GAF
was 65-70 (mild symptoms).  The assessment of  social/industrial  impairment
was mild.  The examiner opined that his condition “appears to have  improved
since being diagnosed with PTSD….I  believe  if  he  does  need  psychiatric
care, it would most likely be minimal in the future.”

The Board directed its attention to  its  permanent  rating  recommendation,
based on the July 2006 evidence just described.   All  members  agreed  that
the VASRD §4.130 threshold for a 50% rating was not met.   The  deliberation
settled on arguments for a 10% vs. 30% permanent  rating.   The  10%  rating
description in VASRD §4.130 (occupational and social impairment due to  mild
or transient symptoms which decrease  work  efficiency,  during  periods  of
significant stress) was clearly  a  better  fit  than  the  30%  description
(occupational  and  social  impairment  with  occasional  decrease  in  work
efficiency, and intermittent periods of inability  to  perform  occupational
tasks).  The CI was having mild symptoms and  mild  social  impairment,  but
was not under psychiatric care and was requiring no medications.  After  due
deliberation and consideration of all the evidence,  and  mindful  of  VASRD
§4.3 (Reasonable  doubt),  the  Board  unanimously  recommends  a  permanent
rating of 10% for the PTSD condition.

Obstructive Sleep Apnea (OSA).  The CI was  diagnosed  with  OSA  in  August
2004.  He was having excessive daytime  somnolence,  morning  headaches  and
memory problems.  A sleep study confirmed mild  to  moderate  OSA.   He  was
treated with continuous positive airway pressure (CPAP), which  dramatically
improved his  symptoms.   The  MEB  examiner  opined  that  the  CI  had  no
impairment for civilian social or  industrial  adaptability.   The  February
2005 IPEB found him unfit at 0%  because  of  minimal  impairment.   At  his
August 2006 TDRL evaluation, the CI was doing well with  the  CPAP  machine.
The examiner noted that the CI was “limited by his obstructive  sleep  apnea
in that he would need support to use this machine at night.”  The  September
2006 IPEB found the OSA unfitting at 0%, rated  as  “mild  social/industrial
impairment.”   IAW  DoDI  6040.44,  with  subsequent   legal   opinion   and
precedent, the Board must base its rating recommendation on VASRD  standards
in effect at the time of separation.  Since the  requirement  for  CPAP  was
clearly established, the Board unanimously recommends an OSA rating of  50%,
IAW VASRD §4.97.  It is appropriately coded 6847,  and  meets  criteria  for
the 50% rating.  This applies to the TDRL rating as well  as  the  permanent
separation rating.

Low back pain (LBP).  The CI developed LBP in 2003.   He  was  treated  with
medication, physical therapy (PT), and epidural steroid injections.  At  the
January 2005 orthopedic MEB examination, the examiner noted some  restricted
range-of-motion (ROM).  There was slight tenderness to palpation (TTP),  but
no  abnormal  spinal  contour.   Neurologic  exam  was   normal.    Magnetic
resonance imaging (MRI) had  shown  degenerative  disk  disease  (DDD)  with
bulging disks at multiple levels.  The examiner  opined  that  the  DDD  was
stable, but prevented the CI from fully performing his military duties.   At
the August 2006 TDRL back evaluation; there was some  TTP  but  no  abnormal
contour.   Neurologic examination again was  normal.   The  examiner  opined
that the back pain was  slight,  and  the  condition  was  stable.   In  the
treatment record, three goniometric ROM evaluations were  in  evidence,  and
are summarized in the chart below.

|Goniometric ROM - |VA C&P –      |MEB Eval –      |TDRL PT Eval –    |
|Thoracolumbar     |20041115      |20050113        |20060801          |
|Flexion (90⁰ is   |90⁰           |60⁰             |70⁰               |
|normal)           |              |                |                  |
|Combined (240⁰ is |200⁰          |200⁰            |190⁰              |
|normal)           |              |                |                  |
|§4.71a Rating     |10%           |20%             |10%               |

The Board  carefully  reviewed  all  the  evidence.   Thoracolumbar  flexion
measured at the January 2005 MEB evaluation fit VASRD  criteria  for  a  20%
rating, based on forward flexion greater than 30⁰ but not greater than  60⁰.
 This exam was deemed to have increased probative value  since  it  occurred
closer to the time of separation from active duty and the CI’s placement  on
TDRL.  There was no evidence of incapacitating episodes that  would  warrant
a higher rating under code 5243 (intervertebral disc syndrome).   There  was
no evidence of ratable peripheral nerve impairment in this  case.   No  exam
in evidence documented abnormal gait or spinal contour.  Given that  forward
flexion was limited  to  60  degrees  on  the  MEB  examination,  the  Board
unanimously recommends a 20%  TDRL  rating  for  the  low  back  pain  (LBP)
condition.  As for the permanent rating, the August  2006  ROM  measurements
by PT clearly fit the 10% rating under VASRD  §4.71a  in  both  flexion  and
combined  motion.   There  was  no   documentation   of   peripheral   nerve
impairment, incapacitating intervertebral disc episodes, abnormal  gait,  or
significant spinal contour  abnormalities.   All  evidence  considered,  the
Board unanimously recommends a 10% permanent disability rating for  the  LBP
condition.

Other PEB Conditions.   Hearing  loss,  left  knee  patellofemoral  syndrome
(PFS), plantar fasciitis, and sinusitis were  adjudicated  by  the  February
2005 IPEB as “not unfitting.”  These conditions were reviewed by the  action
officer and considered by the Board.  There is insufficient evidence in  the
record  that  any  of  these  conditions   significantly   interfered   with
satisfactory  performance  of  required  military  duties.    All   evidence
considered, there is not reasonable  doubt  in  the  CI’s  favor  supporting
reversal of the PEB fitness adjudication for any of the stated conditions.

Remaining Conditions.  Shoulder pain, lipomas,  inguinal  hernia,  keratotic
lesion right ear, tinnitus, and several other conditions were also noted  in
the DES file.  None of these conditions were clinically  significant  during
the MEB/PEB period, none carried profiles and none were  implicated  in  the
commander’s  statement.   These  conditions  were  reviewed  by  the  action
officer and considered by the Board.  It was determined that none  could  be
argued as unfitting and subject to separation rating.  Additionally,  carpal
tunnel syndrome, prostate problem, skin scar over right  brow,  and  several
other  conditions  were  noted  in  the  VA  rating  decision  proximal   to
separation, but were not documented in the DES file.   The  Board  does  not
have the authority to render  fitness  or  rating  recommendations  for  any
conditions not  considered  by  the  DES.   The  Board,  therefore,  has  no
reasonable basis for recommending any additional  unfitting  conditions  for
separation 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.  In the matter  of  the  PTSD  condition,  the
Board unanimously recommends a 10% permanent  rating  at  final  separation,
coded 9411 IAW VASRD §4.130.  In the matter of the OSA condition, the  Board
unanimously recommends an initial  TDRL  rating  of  50%,  and  a  permanent
separation rating of 50%, coded 6847 IAW VASRD §4.97.  In the matter of  the
LBP condition the Board unanimously recommends an  initial  TDRL  rating  of
20%, and a permanent separation rating of  10%  coded  5299-5237  IAW  VASRD
§4.71a.  In  the  matter  of  the  hearing  loss,  left  knee  PFS,  plantar
fasciitis, sinusitis, shoulder pain,  lipomas,  inguinal  hernia,  keratotic
lesion  right  ear,  tinnitus,  or  any  other   conditions   eligible   for
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  determination  be
modified as  follows:  TDRL  at  80%  and  then  a  permanent  combined  60%
disability retirement as below.

|UNFITTING CONDITION                   |VASRD CODE  |TDRL    |PERMANENT  |
|                                      |            |RATING  |RATING     |
|Posttraumatic Stress Disorder         |9411        |50%     |10%        |
|Obstructive Sleep Apnea               |6847        |50%     |50%        |
|Thoracolumbar Back Pain               |5299-5237   |20%     |10%        |
|COMBINED    |80%     |60%        |


____________________________________________________________________________
__

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20100512, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans' Affairs Treatment Record





                                        President
                                                                    Physical
Disability Board of Review

SFMR-RB


MEMORANDUM FOR Commander, US Army Physical Disability Agency

SUBJECT:  Department of Defense Physical Disability Board of Review
Recommendation

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
80% 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 recharacterize the individual’s separation
as a permanent disability retirement with the combined disability rating of
60%.

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 temporary disability
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 day following the six month TDRL period.

      c.  Adjusting pay and allowances accordingly.  Pay and allowance
adjustment will account for recoupment of severance pay, provide 80%
retired pay for the constructive temporary disability retired six month
period effective the date of the individual’s original medical separation
and then payment of permanent disability retired pay at 60% effective the
day following the constructive six month TDRL period.

      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
                                       Deputy Assistant Secretary
                                           (Army Review Boards)

CF:
(  ) DoD PDBR
(  ) DVA

























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