RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1200195 SEPARATION DATE: 20050726

BOARD DATE: 20120514

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B20 / Infantryman), medically separated for chronic low back pain and posttraumatic stress disorder (PTSD). The CI had worsened hearing loss and chronic tinnitus following his combat deployment and was begun on a Military Occupational Specialty (MOS) Medical Retention Board to be reclassified away from a hazardous noise environment. Given the symptoms from his lower back pain (LBP), the CI was recommended for a Medical Evaluation Board (MEB) for his hearing-loss. The CI injured his lower back in a military vehicle crash with progressive symptoms. Imaging demonstrated a herniated disc at S1-2 with displacement of the nerve root. Despite physical therapy, traction, medication and two epidural steroid injections he continued with LBP and intermittent left lower leg radicular pain symptoms. He was not a surgical candidate. The CI was diagnosed with PTSD consequent to an Iraq deployment with numerous combat engagements. Criterion A combat stressors were documented and the diagnostic and statistical manual of mental disorders (DSM IV) criteria for an axis I diagnosis of PTSD were met. He underwent a trial of medications and outpatient therapy, but failed to improve adequately to meet the operational requirements of his MOS or meet physical fitness standards. He was issued a permanent L3/H3/S4 profile and underwent an MEB. Hearing loss, chronic LBP and PTSD were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. Two other conditions, as identified in the rating chart below, were forwarded on the MEB submission as medically acceptable conditions. The PEB adjudicated the back condition as unfitting rated 10% and the PTSD condition as unfitting rated 10%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy and Department of Defense Instruction (DoDI) 1332.39, respectively. Hearing loss, tinnitus and irritable bowel conditions were adjudicated as not unfitting. The CI made no appeals, and was medically separated with a 20% combined disability rating.

CI CONTENTION: “My initial rating for unfitting PTSD should be 50% under 38 CFR 4.129 and it should permanently continue at 50% under 38 CFR 4.130.” He is mentions no additionally contended conditions. This case was adjudicated following settlement of the Sabo v. United States class action suit.

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44 (4.a) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; and, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” A review of the service ratings for the unfitting conditions encompasses all of the conditions requested for consideration and meets the criteria prescribed in DoDI 6040.44 for Board purview. Hearing loss, tinnitus and irritable bowel syndrome were not contended, and are therefore outside of the Board’s purview. 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 Army Board for the Correction of Military Records (ABCMR).

RATING COMPARISON:

Service PEB – Dated 20050617	VA (3 Mo. After Separation) – All Effective Date 20050727
Condition	Code	Rating	Condition	Code	Rating	Exam
Chronic Low Back Pain	5243	10%	Lumbar Spine, Degenerative Changes	5237	10%	20051014
PTSD	9411	10%	PTSD	9411	10%	20051012
Hearing Loss	Not Unfitting	Bilateral Hearing Loss	6100	0%	20051020
Tinnitus	Not Unfitting	Tinnitus	6260	10%	20051020
Irritable Bowel Syndrome	Not Unfitting	Irritable Bowel Syndrome	7319	10%	20051012
↓No Additional MEB/PEB Entries↓	Acid Reflux	7399-7346	10%	20051012
	0% x 2/Not Service-Connected x 2	20051012
Combined: 20%	Combined: 40%

ANALYSIS SUMMARY:

Low Back Condition. As noted above, the CI injured his lower back, had a herniated disc at S1-2 with displacement of the nerve root, continued LBP, and intermittent left lower leg radicular pain symptoms. There were three back exams, including a complete goniometric range-of-motion (ROM) evaluation in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation. These exams are summarized below.

Thoracolumbar ROM	Ortho ~3 Mo. Pre-Sep	MEB/PT ~2 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep
Flexion (90⁰ Normal)	~70⁰	80⁰	65⁰
Ext (0-30)	30⁰	34⁰ (30)	30⁰
R Lat Flex (0-30)	30⁰	34⁰ (30)	20⁰
L Lat Flex 0-30)	30⁰	33⁰ (30)	20⁰
R Rotation (0-30)	-	55⁰ (30)	-
L Rotation (0-30)	-	53⁰ (30)	-
Combined (240⁰)	Min 160⁰/max 220⁰	230⁰	Min 135⁰/max 195⁰
Comment	Missing rotation measurements; no atrophy; positive left straight leg raise; motor, sensation, reflexes normal; markedly tight hamstrings bilaterally; negative Lasegue sign; good heel and toe walk; Wadell’s 0/5	Pain with motion; Good heel and toe walk; strength 5/5; no motor/sensory deficits; negative SLR; Waddell’s 2/5 (simultaneous rotation & distraction)	Missing rotation measurements; no spasm or atrophy, normal contour; no evidence of incoordination, weakness or fatigability; “Functional loss due to subjective complaint of pain is absent.”
§4.71a Rating	10%	10%	10%

Even if all missing ROM measurements were zero (minimums charted above), the combined range of motion of the thoracolumbar spine was greater than 120 degrees in all cases and would not meet the 20% rating criteria. All exams demonstrated normal gait with limited ROMs that met the 10% rating criteria. The CI had intermittent left leg radicular pain without any evidence of fixed sensory or motor deficiencies. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. There was no evidence of ratable peripheral nerve impairment, spasm, abnormal contour, or documentation of sufficient incapacitating episodes (physician prescribed bed-rest) within 12 months which would provide for additional or higher rating. Although the PEB applied the pain policy for rating, the 10% rating was the same with application of VASRD §4.71a. The PEB coding of 5243 (intervertebral disc syndrome) was a better fit for the CI’s pathology than the VA’s 5237, lumbosacral or cervical strain, coding and both either code uses the criteria from the general rating formula for diseases and injuries of the spine. 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 10% adjudication of the low back condition.

PTSD Condition. The PEB rating, as described above, was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to VASRD §4.129. The CI participated in the Sabo et al v. United States class action lawsuit and has received a 50% PTSD rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL) in accordance with the settlement.

The severity of the CI’s PTSD condition as evidenced by the MEB evaluation, 3 months prior to separation, could best be described as severe to moderate. The CI related symptoms of frequent nightmares, occasional flashbacks, hypervigilance, and that anger had been a major problem including bar fights with “some local bars have banned him due to altercations there.” The commander’s statement reflected that the CI’s “ability to function even in garrison environment is limited due to his inability to communicate as a result of his poor hearing, PTSD, and lower back problems;” however, the commander also stated that CI was working “as the USAG CQ desk NCOIC until his pending MEB is resolved.” Records noted a possible diagnosis of adult attention deficit disorder (ADD) that was not a final psychiatric diagnosis on the multiaxial diagnoses. Some social avoidance was documented, and the CI was separated from his wife and had poor relationships. At the writing of the narrative summary (NARSUM) psychiatric addendum, the CI had tried two medications without success, and was started on a new psychiatric and new sleeping medication at that time. His mental status exam (MSE) showed an anxious and moderately depressed affect, with “at times, tears well up” but was otherwise normal. Speech was normal and there was no evidence of organic mental disorder. His Global Assessment of Functioning (GAF) score was 45, connoting serious impairment. The examiner diagnosed PTSD, severe. The PEB disability description stated “has been fully compliant with treatment, making moderate gains, but further therapy indicated,” but no source medical treatment records were in evidence.

The severity of the CI’s PTSD condition as evidenced by the VA Compensation and Pension (C&P) exam, 3 months after separation, could best be described as mild to moderate and symptoms appeared to be improved from the pre-separation evidence. The CI was unemployed and living with his parents; separated from his wife and child. He was no longer taking psychiatric medications or undergoing therapy. The CI had subjective complaints of irritability, anxiety, memory and concentration problems, nightmares, avoidance, exaggerated startle, depressed mood and sleep difficulty. History included significant alcohol consumption of 8 to 10 beers/day for 25 of the 30 past days, and a weight gain of 60 pounds over the prior 18 months. MSE demonstrated a well groomed alert and oriented male with euthymic mood with appropriate affect. “Memory appeared largely unimpaired,” insight and judgment were good and there was no suicidality. The CI was engaged in hobbies and was seeking employment and had a goal of “obtaining a master degree in psychology so that he can “give back” to society.” His GAF score was 60, connoting moderate impairment; while the examiner specified “Industrial adaptability and capability seems good.” The examiner diagnosed PTSD, chronic; alcohol abuse; and nicotine dependence. The VA assigned a §4.130 rating of 10% based on this examination (obviously independent of §4.129) for “is 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.” There was no relevant VA outpatient or civilian provider evidence providing psychiatric details during the 6-month interval, aside from the VA C&P exam.

The Board directs its attention to its rating recommendations based on the evidence just described. All members agreed that the §4.130 criteria for a rating higher than 50% at the time of separation were not met; and, therefore the minimum 50% constructive TDRL PTSD rating prescribed by §4.129, DoD instruction and court order from the Sabo v. United States class action suit settlement is applicable. As regards to the permanent rating recommendation at the 6-month timeframe following constructive TDRL, all members agreed that the §4.130 threshold for a 50% rating was not approached and that the criteria for a 0% rating were exceeded. The deliberation settled on arguments for a 10% versus a 30% permanent rating recommendation. Since the VA psychiatric C&P examination was proximate to separation and premature for the 6-month rating benchmark, the MEB evaluation itself provides a useful baseline and is assigned relevant probative value in the Board’s efforts to arrive at a fair permanent rating recommendation. The probative value of the VA examination; however, is strengthened on the principle that it reflects the stress of transition to civilian life which is intrinsic to the Board’s permanent rating recommendation.

Independent rating of the MEB exam with consideration of additional commanders comments would rate between 30% to 50% IAW §4.130. The VA rater’s rationale for a 10% rating was based on the examiner’s specified assessment of industrial adaptability and capability “seems good.” The Board deliberated if the VA GAF of 60 (upper end of moderate symptoms closest to mild symptoms; MEB GAF=45); the CI’s unemployment and living at home with financial assistance from his parents; being separated from his spouse; and, the CI’s history of bar fights and continued alcohol consumption with blackouts; supported a 30% rating recommendation, although the VA examiner assessment of industrial adaptability and the CI’s improvement after separation and no longer taking medication for PTSD favors a 10% rating strictly IAW VASRD §4.130.

As the Board considers all mental health symptoms in rating PTSD, the CI’s alcohol abuse and attention deficit symptoms were considered as part of his condition as there was no defensible basis for applying, or means of measuring, any deduction which might be considered. The Board must therefore disregard the influence of alcohol abuse or non-compliance on ratable symptoms for its permanent rating recommendation. The 30% description (“occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”) is a better fit with the CI’s symptoms and functioning in evidence since decreased efficiency can be assumed even though reliability and productivity were not affected as the CI was unemployed and not enrolled in school. After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a permanent PTSD disability rating of 30% in this case.

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 the USAPDA pain policy for rating the lower back condition and DODI 1332.39 for rating the PTSD condition were operant in this case and the conditions were adjudicated independently of that policy and directive by the Board. In the matter of the low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB’s 10% adjudication. In the matter of the PTSD condition, the Board unanimously recommends by a vote of 2:1, a 30% permanent rating at 6 months IAW VASRD §4.130. The single voter for dissent (who recommended adopting the VA rating 9411 at 10%) did not elect to submit a minority opinion. 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 permanent 40% disability retirement as indicated below.

UNFITTING CONDITION	VASRD CODE	TDRL RATING	PERMANENT RATING
Posttraumatic Stress Disorder	9411	50%	30%
Chronic Low Back Pain	5243	10%	10%
COMBINED	60%	40%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120215, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans' Affairs Treatment Record

XXXXXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

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

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

for XXXXXXXXXX, AR20120009498 (PD201200195)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40%.

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 60% 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 40% 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 XXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA