RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY 

CASE NUMBER: PD1201185 DATE OF PLACEMENT ON TDRL: 19981209 

BOARD DATE: 20130301 DATE OF PERMANENT SEPARATION: 20030210 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty Army SPC/E-4 (44B10/Metal Worker/Welder) 
medically separated for depression, a lumbar spine/bilateral foot condition(s), and a finger 
condition. The CI strained his lower back in 1995, and did not recover adequately with a 
protracted trial of conservative treatment. During the same period he suffered a metatarsal 
fracture of his right foot, and subsequently developed bilateral plantar fasciitis. In 1998 he 
underwent a joint fusion of his right small finger secondary to degenerative arthritis. During 
the recovery period for the latter, he manifested behavioral changes and developed psychiatric 
symptoms diagnosed as depression. None of the orthopedic conditions could be adequately 
rehabilitated, nor could the psychiatric condition be sufficiently controlled, to meet the physical 
and mental requirements of his Military Occupational Specialty (MOS). He was issued a 
permanent U3/L3/S3 profile and referred for a Medical Evaluation Board (MEB). The MEB 
forwarded “muscular neck and low back pain,” “bilateral plantar fasciitis,” “degenerative 
changes first metatarsophalangeal [MTP] joint right foot,” “proximal “interphalangeal [PIP] joint 
fusion right fifth finger,” and “major depressive disorder [MDD],” each judged to fail AR 40-501 
retention standards, for Informal Physical Evaluation Board (IPEB) adjudication. The IPEB 
adjudicated MDD as unfitting, rated 30% citing criteria of Department of Defense Instruction 
(DoDI) 1332.39; “chronic low back pain and chronic bilateral foot pain” as a single unfitting 
condition rated 20% with likely application of AR 635-40 (B.24 f.); and, the finger condition as 
unfitting, rated 0% with application of the Veteran’s Affairs Schedule for Rating Disabilities 
(VASRD). With a combined rating of 40%, the CI was placed on the Temporary Duty Retirement 
List (TDRL). After 48 months on the TDRL, all conditions were considered to be stable but still 
unfitting. The IPEB at this time rated MDD at 10%, citing DoDI 1332.39 criteria; and, rated the 
lumbar/bilateral foot condition at 0%, referencing AR 635-40 and the U.S. Army Physical 
Disability Agency (USAPDA) pain policy. The IPEB’s DA Form 199 was silent regarding the finger 
condition. The CI appealed these findings to a Formal PEB (FPEB) which affirmed the two IPEB 
ratings and added a 0% rating for the finger condition (IAW the VASRD). After USAPDA review 
and affirmation of the FPEB findings, the CI was permanently separated with a 10% combined 
disability rating. 

 

 

CI CONTENTION: The application states simply, “During my annual evaluations, my conditions 
either were stabilized or worsened, therefore, my rating shoud [sic] have stayed the same or 
should have been increased.” 

 

 

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 those conditions identified but not determined to be unfitting by 
the PEB when specifically requested by the CI. The ratings for the unfitting depression, 
lumbar/bilateral foot condition(s), and the right small finger condition are addressed below. No 
additional conditions are within the DoDI 6040.44 defined purview of the Board. Any 
conditions or contention not requested in this application, or otherwise outside the Board’s 
defined scope of review, remain eligible for future consideration by the respective Board for 
the Correction of Military Records. 


TDRL RATING COMPARISON: 

 

FPEB – Dated 20030122 

VA (9 Mos. Preceding Final Separation) – Effective 19981210* 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

On TDRL – 19981209 

TDRL 

Sep. 

MDD 

9434 

30% 

10% 

MDD 

9434* 

70% 

20020529 

Chronic Low Back Pain/ 
Bilateral Foot Pain 

5099-5003 

20% 

0% 

Arthritis of Both Feet 

5010 

10% 

20020522 

Lumbosacral Strain 

5295 

10% 

20020522 

PIP Fusion, R-5th Finger 

5299-5227 

0% 

0% 

PIP Fusion, R-5th Finger 

5227 

0% 

20020522 

No Additional MEB/PEB Entries 

Other X 1 

20020522 

Combined: 10% 

Combined: 80% 



* MDD 9434 initially rated 10% effective 19981210, increased to 50% from 19981210, increased to 70% effective 20020114 

 

 

ANALYSIS SUMMARY: The CI’s opinion that his condition worsened over the course of his TDRL 
period was considered in the Board’s deliberations. The Board takes the position that 
subjective improvement or worsening during the period of TDRL should not influence its coding 
and rating recommendation at the time of permanent separation. The Board’s relevant 
recommendations are assigned in assessment of the service’s permanent separation and rating 
determination, and the TDRL rating assignment is not considered a benchmark. Thus the sole 
basis for the Board’s permanent disability recommendation is the optimal VASRD rating for 
disability at the time the CI is permanently separated at exit from TDRL. 

 

Major Depressive Disorder. During rehabilitation efforts after his 1998 finger surgery, the CI 
began verbalizing symptoms of stress and despair and was referred to Behavioral Health. 
Initially he was believed to be suffering from an adjustment disorder and his early symptoms 
improved with an antidepressant and counseling. Symptoms of explosive anger and behavioral 
lability emerged however and, intransigent symptoms of depression ensued. The CI was 
diagnosed at that time with MDD (2 episodes). No psychiatric hospitalization was required, and 
the commander’s statement noted continued duty in his MOS with physical impairments from 
the orthopedic issues. The psychiatric addendum to the narrative summary (NARSUM) 
preceding TDRL placement noted symptoms of “depressed mood, anhedonia, excessive 
ruminations regarding personal inadequacies with a sense of low self-worth and guilt, 
irritability, self-isolation, decreased energy, decreased concentration, decreased motivation, 
feelings of hopelessness and helplessness with chronic passive suicidal ideations without any 
plan or intent at this time.” The examiner mentioned “difficulties” at work and home, but 
provided no examples. The mental status examination (MSE) noted “mild psychomotor 
retardation” and a “sad” mood with congruent affect. There was no psychotic or delusional 
content, although intrusive “self talk” and “excessive ruminations” were elaborated as a 
possible precursor of delusions or hallucinations. The DoDI 1332.39-derived assessment of 
social and industrial impairment was “considerable.” 

 

At the VA Compensation and Pension (C&P) exam performed 9 months prior to permanent 
separation and 41 months after TDRL entry, the CI reported continued “episodes of severe 
depression” (quantified at “3–4” episodes a year, of up to 2 days duration) which had been 
“reduced during past year by medication.” He manifested vegetative symptoms of insomnia, 
inactivity, and overeating with significant weight gain; and, endorsed new symptoms of 
occasional visual (“shadows”) and auditory (voices) hallucinations. He had undergone “4-5” 
psychiatric admissions for suicidal gestures (as self characterized). Occupationally, he had 
“worked in an estimated 20 jobs since his discharge” and reasons for terminations varied from 
conflict with family demands and dissatisfaction with working conditions to “being fired 
(estimated 30%-50% of jobs) for verbal or physical conflicts.” His long-standing marriage was 
strained, but intact, and he was a “devoted” and responsible father of two children. The MSE 
from the VA examiner recorded a “moderately depressed” mood and an “appropriate” affect 


with “fair range.” No active hallucinatory or delusional content, or active suicidal ideation, 
were documented. The Global Assessment of Functioning (GAF) assignment was 45, which is in 
the serious range of impairment on that scale. At his third and final TDRL evaluation by the 
Army, 3 months prior to permanent separation, the CI reported “increased anger, sadness, and 
having some difficulty with concentration” along with “helplessness and hopelessness and poor 
self-esteem.” The psychiatric hospitalizations related in the preceding VA evaluation were not 
documented by the TDRL examiner, although it was noted, “He has not had any suicidal or 
homicidal attempts this year.” The hallucinatory symptoms and vegetative symptoms (other 
than intermittent insomnia related to his work schedule) elaborated by the VA examiner were 
not recorded by the TDRL examiner. The CI was compliant with an antidepressant (Paxil) and 
anxiety medication (klonopin). Socially, the TDRL evaluation described some marital strife and 
social isolation. Occupationally, the TDRL examiner did not elaborate the occupational lability 
as above. It was noted that the CI was currently employed as a security guard and that he was 
enrolled part-time (10 credits) in vocational training (healthcare). The MSE from the TDRL 
psychiatrist noted a “sad and hopeless” mood with a congruent affect. Specifically denied were 
speech abnormalities or auditory/visual hallucinations. The exam stated, “He currently reports 
suicidal ideas but denied any intention.” Detailed cognitive testing was recorded, which was 
normal except for some difficulty with serial 7’s. No GAF assignment was made by the TDRL 
examiner; the DoDI 1332.39-derived assessment was “definite” impairment for civilian 
adaptability (improved from pre-TDRL assessment). The TDRL psychiatrist (who had also 
conducted the mid-TDRL re-evaluations) concluded, “His condition is chronic and although 
more stable than prior to last year, the change is not significant.” Additional employment 
history evidence from the file established that the CI was working full-time as a laborer during 
the period encompassing permanent separation. 

 

The Board directs attention to its rating recommendations based on the above evidence. As 
regards the TDRL rating, the Board must determine the fairest rating IAW VASRD §4.130 criteria 
in lieu of the DoDI 1332.39 criteria applied by the IPEB. The §4.130 rating description for the 
30% rating applied by the IPEB is “occupational and social impairment due to mild or transient 
symptoms which decrease work efficiency and intermittent periods of inability to perform 
occupational tasks” referencing typical symptoms of depression, anxiety, suspiciousness, panic 
attacks (= weekly), sleep disturbance, and mild memory loss. The next higher rating of 50% 
requires “occupational and social impairment with reduced reliability and productivity” 
referencing typical symptoms of flat affect, stereotyped speech, frequent (> weekly) panic 
attacks, deficits in comprehension and memory, impaired judgment, mood disturbance, and 
difficulty with establishing relationships. Members agreed that the commander’s statement, 
unrefuted by any other evidence in the record, did not suggest any direct interference of MOS 
performance by psychiatric issues; and, most of the symptoms exampled for the 50% rating 
were not present. The Board therefore concluded that there was insufficient cause to 
recommend a change in the PEB’s TDRL adjudication of the MDD condition. 

 

The Board then deliberated the fairest permanent rating recommendation (IAW §4.130). The 
VA rating based on the C&P evaluation was 70%, with the decision citing the hallucinations and 
stating that the CI was unemployed. The subsequent TDRL evaluation and the additional 
employment evidence convincingly suggest that neither psychotic like symptoms nor significant 
barriers to occupational functioning were in play at the time of permanent separation. All 
members agreed, therefore, that the 70% criteria of §4.130 (“occupational and social 
impairment, with deficiencies in most areas, such as work, school, family relations, judgment, 
thinking, or mood”) were not supported for permanent rating at separation. All members 
agreed that the service’s DoDI 1332.39 based rating of 10% was not compatible with §4.130 
criteria; i.e., “occupational and social impairment due to mild or transient symptoms which 
decrease work efficiency … only during periods of significant stress, or; symptoms controlled by 
continuous medication.” The deliberation thus settled on arguments for a 30% vs. 50% 
permanent rating recommendation (criteria elaborated above). Members agreed that the CI 


was functioning reasonably well at separation judging by his full-time employment and 
educational pursuits related in the exit TDRL evaluation, and confirmed in the combined file. 
Overall, the employment record and documented psychiatric symptoms were fairly 
encompassed by the 30% description. Conceding the “reduced reliability and productivity” 
requisite for a 50% rating would require undue speculation and most of the symptoms 
exampled for that rating were not present. All members thus agreed that the 30% criteria were 
best supported, and that the 50% criteria were marginally supported. After due deliberation, 
considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board 
recommends a 30% permanent rating for MDD. 

 

Board Approach to PEB Combined Condition(s). The PEB combined lumbar spine and bilateral 
foot conditions under a single disability rating, coded analogously to 5003. Although VASRD 
§4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings 
for separately compensable spine and joint impairments. IAW DoDI 6040.44 the Board must 
follow suit if the PEB combined adjudication is not compliant with the latter stipulation, 
provided that each “unbundled” condition can be reasonably justified as separately unfitting in 
order to remain eligible for service rating. If the members judge that separately ratable 
conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 
(higher of two evaluations), separate ratings are recommended with the stipulation that the 
result may not be lower than the overall combined rating from the PEB. The Board’s initial 
charge in this case was therefore directed at determining if the PEB’s combined adjudication 
was justified in lieu of separate ratings. 

 

The Board first considered if the lumbar spine condition met the above criteria for separate 
rating. It was implicated in the commander’s statement as negatively affecting duty 
performance and was specifically noted as a component of the permanent L3 profile. Member 
consensus was that the lumbar spine condition was therefore reasonably justified as separately 
unfitting and that it met VASRD §4.71a criteria for separate rating. Accordingly, it should be 
afforded separate disability rating. The Board next considered if the bilateral foot condition 
met the above criteria for separate rating. The condition was not noted in the commander’s 
statement and it was not added to the profile until the eve of temporary retirement. Neither 
the subsequent VA nor TDRL evaluations noted any residual functional impairment interfering 
with occupational pursuits. Although the condition was forwarded by the MEB as separately 
failing retention standards, the Board could find no evidence in the file of objective 
performance based criteria for concluding that the condition was independently unfitting. 
After considerable deliberation, members agreed that the foot condition was not reasonably 
justified as separately unfitting and accordingly, it cannot be recommended for separate 
disability rating. 

 

Lumbar Spine Condition. Three years prior to TDRL placement, the CI suffered a strain injury to 
his back while weight lifting. He suffered no clinical disc involvement or neurological sequelae 
and was managed with temporary profiles and conservative measures. The NARSUM preceding 
TDRL placement incorporated the limitations associated with his back with those of his feet; 
limiting running, jumping, prolonged standing or walking, and lifting. The physical exam 
documented, “He has excellent range of motion [ROM] to flexion and extension, but has pain 
more with extension.” There was no spasm, and neurological findings were normal. The VA 
C&P evaluation 9 months prior to permanent separation noted “constant low back pain,” 
aggravated by bending, lifting and prolonged sitting. The physical exam noted paraspinal 
tenderness, a normal gait and contour, and normal neurologic findings. The recorded ROM 
measurements were 80 degrees flexion (normal 90 degrees) and a combined ROM of 225 
degrees (normal 240 degrees). At the final TDRL evaluation 3 months prior to permanent 
separation, the CI complained of an increase in his back pain from a vehicular accident in April 
2002; although, the examiner noted “some improvement recently.” There was some occasional 
right sciatic radiation with activity. The physical exam noted normal contour, no spasm or 


tenderness, and normal neurologic findings. Lumbar flexion was “approximately 85-90 
degrees”; and extension 10 degrees (no other planes of motion recorded). 

 

The Board directs attention to its rating recommendations based on the above evidence. Both 
the TDRL and permanent ratings fell under older VASRD rating criteria for the spine which IAW 
DoDI 6040.44, the Board must also apply to its recommendations. For convenience, the 
applicable coding options for this case are excerpted below: 

5292 Spine, limitation of motion of, lumbar 

Severe ........... 40 

Moderate ..... 20 

Slight ............. 10 

 

5295 Lumbosacral strain: 

Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, marked 
limitation of forward bending in standing position, loss of lateral motion 

with osteo-arthritic changes, or narrowing or irregularity of joint space, or some 

of the above with abnormal mobility on forced motion ........... 40 

With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in 
standing' position ........ 20 

With characteristic pain on motion ...... 10 

It is clear that the 20% criteria under 5295 (as applied by the VA) are not in evidence. Coding 
under 5292 is also reasonable; but, the minimal ROM limitations in evidence would not justify a 
characterization beyond “slight” limitation and thus it is not more favorable to rating. The code 
5293 (intervertebral disc syndrome) was available in the 2003 VASRD but was neither clinically 
supported nor favorable to rating. After due deliberation, the Board recommends separate 
rating of the lumbar spine condition of 10%, under code 5295, for the period of TDRL and 
permanently. 

 

Right Small Finger Condition. The CI suffered a contusion to his right hand and small finger in 
November 1993. Although there was no radiographic fracture, he developed arthritis with 
recalcitrant pain and recurrent effusions of his small finger. In February 1998 he underwent 
surgical fusion of the affected proximal interphalangeal (PIP) joint. The operative note 
documented surgical fusion in 50 degrees flexion, as optimal functional positioning. The 
NARSUM prior to TDRL placement documented a healed incision over a frozen joint (ankylosis) 
with “no swelling or tenderness.” A C&P examination performed during the same period 
elaborated some interference with strong grasp, but no impairment of routine activities. The 
TDRL evaluation proximate to permanent separation noted “pain during changes in barometric 
pressure” associated with the condition, with no elaboration of functional limitations. The 
physical exam noted no tenderness, ankylosis at the PIP, and passive motion only of the distal 
(DIP) joint. 

 

The Board directs attention to its rating recommendations based on the above evidence. The 
VASRD §4.71a coding for this condition is unequivocal, code 5257 for ankylosis of either the ring 
or small finger. The code was applied by both the service and the VA, and yields only a 0% 
rating irrespective of hand dominance. There is no justification for code substitution or any 
other §4.71a compliant pathway to a compensable rating for this condition. After due 
deliberation, the Board concluded that there was insufficient cause to recommend a change in 
the PEB’s TDRL or permanent adjudications of the right small finger 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. As discussed above, PEB 
reliance on DoDI 1332.39, the USAPDA pain policy, and AR 635-40 for rating various conditions 
was operant in this case and the conditions were adjudicated independently of that guidance 
by the Board. In the matter of MDD, the Board unanimously recommends a disability rating of 
30% for the period of temporary retirement and a 30% permanent rating, coded 9434 IAW 
VASRD §4.130. In the matter of the service-combined lumbar spine/bilateral foot condition: 
The Board recommends by a vote of 2:1 that the lumbar spine component be rated as a 
separate unfitting condition at 10%, coded 5295, IAW VASRD §4.71a, both for the period of 
temporary retirement and permanently. The single voter for dissent (who concluded that the 
condition was not separately unfitting) did not elect to submit a minority opinion. With regards 
to the PEB-consolidated bilateral foot condition, the Board unanimously agrees that it cannot 
recommend a finding of unfit for additional service disability rating. In the matter of the right 
small finger condition and IAW VASRD §4.71a, the Board unanimously recommends no change 
in the PEB adjudication both for the period of temporary retirement and permanently. 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 to 
reflect a combined disability rating of 40% for the prescribed period of temporary retirement, 
and then a permanent combined 40% Service disability retirement effective as of the date of his 
prior medical separation: 

 

CONDITION 

VASRD 
CODE 

RATING 

TDRL 

PERMANENT 

Major Depressive Disorder 

9434 

30% 

30% 

Lumbar Strain 

5295 

10% 

10% 

Ankylosis, Right Small Finger 

5227 

0% 

0% 

Bilateral Plantar Fasciitis and Metatarsalgia 

Not Unfitting 

COMBINED 

40% 

40% 



 

 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20120602, w/atchs 

Exhibit B. Service Treatment Record 

Exhibit C. Department of Veterans’ Affairs Treatment Record 

 

 

 

 

 xxxxxxxxxxxxxxxxxxxxxxxxx, DAF 

 Acting Director 

 Physical Disability Board of Review 

 


SFMR-RB 


 

 

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

(TAPD-ZB / xxxxxxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 

 

 

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation 

for xxxxxxxxxxxxxxxxxxxxxxxxxx, AR20130007825 (PD201201185) 

 

 

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 xxxxxxxxxxxxxxxxxxxxxxxxxxx 

 Deputy Assistant Secretary 

 (Army Review Boards)