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AF | PDBR | CY2013 | PD-2013-02202
Original file (PD-2013-02202.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02202
BRANCH OF SERVICE: Army  BOARD DATE: 20140821
DATE OF PLACEMENT ON TDRL: 20040922
DATE OF PERMANENT SEPARATION: 20061206


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (31B/Military Police) medically separated from the Temporary Disability Retired List (TDRL) for somatization disorder, left ulnar nerve paralysis and chronic low back pain (LBP) on 6 December 2006. The CI entered active duty on 30 December 1997. He made multiple deployments during his career including Kosovo (May-November 2002); Africa (September 2002-January 2003); Qatar (January-February 2003) and Oman (February 2003). The CI sustained a severe fall with subsequent injuries (including head trauma) in November 2002. His conditions were cause for his referral to a Medical Evaluation Board (MEB). A MEB psychiatric narrative summary (NARSUM) listed the Axis I diagnosis of “conversion disorder.” The MEB forwarded conversion disorder to the Informal Physical Evaluation Board (IPEB) as medically unacceptable. The MEB also forwarded “left ulnar nerve damage,” “pseudo seizures,” and “chronic low back pain” as medically unacceptable. In addition, the MEB forwarded “chronic headaches,” “mood disorder,” “history of botulism exposure,” “peptic ulcer disease,” “history of gastrointestinal bleed with external hemorrhoid,” eczema,” and “chronic sinusitis” as medically acceptable. The CI rebutted the MEB findings regarding several of his medically unacceptable conditions. He claimed the MEB had not mentioned his memory impairment in its documentation of his mental health (MH) condition. The IPEB adjudicated the conversion disorder as unfitting rated 10%, using VA Schedule for Rating Disabilities (VASRD) code 9424. The IPEB also found “left ulnar neuropathy” and “chronic low back pain” unfit, rated 20% and 10% respectively. The CI was placed on the TDRL on 22 September 2004 at a combined 40% disability. On 4 August 2006, the IPEB found the CI’s conversion disorder, now with somatic delusional content, unfit at 10% disabling. The IPEB changed the VASRD code to 9424-9421 to reflect the CI’s condition at that time. The IPEB also found the left ulnar neuropathy unfit, rated 10%, and the chronic LBP unfit, rated 0%, for a combined permanent disability rating of 20% for these conditions. The CI demanded a formal hearing at this point, specifically contending posttraumatic stress disorder (PTSD) should have been recognized as an unfitting condition. The Formal PEB (FPEB) affirmed the IPEB findings, but reflected another change to the unfitting MH condition, this time documenting the CI under VASRD code 9208, delusional disorder, somatic type, rated at 10%. The CI rebutted this finding. The FPEB affirmed its decision but issued an administrative correction to its previous finding, changing the VASRD code for the unfitting MH condition back to 9421, somatization disorder. There is no record of further appeals. The CI was removed from the TDRL on 6 December 2006 and permanently medically separated.


CI CONTENTION: “I am requesting to be evaluated for a higher level of military disability service connection. I was @20% but it should have been hiring [sic]. I had conditions that the Army rated me zero because they stated were “delusional”. I have records to indicate TBI was diagnosed, PTSD also but were not acknowledged by the military.”


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 applicant. The ratings for conditions meeting the above criteria are addressed below. In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process. The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference. The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Final Service FPEB (admin corrected) - 20061206
 VA (23 Mo. Prior to Adjudication Date**) - Effective 20040923
On TDRL - 20040922
 Code Rating Condition Code Rating Exam
Condition
 TDRL Sep.
Somatization Disorder 9421* 10% 10% Conversion Disorder with Post Traumatic Head Injury 8045-9424 30% 20050103
Pseudo Seizures
Bilateral Ocular Changes, Associated with Conversion Disorder 6079 0% 20050103
Left Ulnar Nerve Paralysis 8516 20% 10% Polyneuropathy, Left Upper Extremity 8516 10% 20050103
Residual Scar, S/P Surgical Fusion, Left Ulnar Nerve 7804 10% 20050103
Chronic Low Back Pain 5237 10% 0% DDD Lumbar Spine with Lower Extremity Radiculopathy 5243-5237 20% 20050103
GI Bleed with External Hemorrhoid Not Unfitting External Hemorrhoid 7336 0% 20050103
Chronic Sinusitis Not Unfitting Chronic Allergic Rhinitis 6522 10% 20050103
Left Maxillary Sinusitis 6513 0% 20050103
Eczema Not Unfitting No VA Entry
Peptic Ulcer Disease Not Unfitting No VA Entry
Chronic Headaches Not Unfitting No VA Entry
Mood Disorder Not Unfitting No VA Entry
Botulism Exposure Not Unfitting No VA Entry
Other MEB/PEB Entries x 0 not in scope.
 Other x 11 20050103
Combined: 40% → 20%
 Combined: 70%
*IPEB coming off TDRL annotated this disability as 9424-9421 (Conversion Disorder); FPEB then changed the DC to 9208 (Delusional Disorder); and admin corrected FPEB finally chang ed the DC to 9421 as stated above.
**Reflects VA rating exam proximate to TDRL placement; no VA rating evidence pr oximate to permanent separation. VA rating decision ( VARD ) 20060606 increased the evaluation of conversion disorder by history, severe, chronic post-traumatic stress disorder and depressive disorder, not otherwise specified, to 100%, effective July 29, 2005.


ANALYSIS SUMMARY:

Conversion Disorder. Available treatment records indicate that the CI was initially evaluated by psychiatry while inpatient in May 2003. The CI reportedly sustained an injury during training in January 2003 while in Africa. He fell 50 feet and was hanging with a 100-pound rucksack. In February 2003, he underwent ulnar nerve surgery, as the result of the fall. A neurology consult on 22 April 2003 noted that the CI reported visual disturbance when he turned his head to the left and when walking, his vision was blurred. Ophthalmological examinations and CT scan of the brain were unremarkable and inconsistent with the CI’s reported symptoms. At the neurological examination, the CI noted that he did not have any recollection of the accident, did not recall having had an injury and stated that he was told his helmet was broken when he fell, “so he may have suffered a head injury.” He was rescued 10-15 minutes after the fall and returned to training after being rescued. The CI indicated his visual problems began 2 weeks after the fall. He reported that he had blurred vision off and on, but it had gotten worse over time. He reported halos around his eyes, denied double vision, but said he had passed out two-three times in the past 3 weeks, witnessed by his wife. He passed out without warning; often he fell and lost consciousness and did not remember that he had passed out. His wife noted that he was unresponsive and his eyes rolled backward in his head. The episodes lasted for approximately 2 minutes. He would become unresponsive, followed by confusion for approximately 10-15 minutes. He reported that he forgot a lot of things, was confused about things and repeated himself a lot. He also reported dizziness and nausea. He was assessed with possible seizures. The CI was admitted to the rehabilitation unit for further evaluation and assessment. During his admission, he was evaluated by neuropsychology for cognitive complaints and by psychiatry. Neuropsychological evaluations from 27-30 May 2003, noted the CI was performing at expected levels on measures of language, learning and memory, simple and complex attention, basic reasoning abilities, sequencing and had normal ability to shift cognitive set. Inconsistencies in his test performance were interpreted as motivational issues and the psychologist opined that reported visual impairments were not consistent with neurophysiological or psychological based somatization or conversion disorder. The psychologist opined that the findings were “highly suggestive of an attempt to exaggerate impairment, possibly related to issues of secondary gain and malingering.” A psychiatry consult on 30 May 2003, indicated that the applicant denied symptoms of PTSD. He noted he had problems controlling his temper and anger. He admitted to being verbally and physically abusive towards his wife and indicated a decrease in his ability to control his angry feelings since he returned from Kosovo. He also stated his mood fluctuated between anger and irritability and that he felt guilty and embarrassed about his behavior. He reported that he wanted help. He denied sleep or appetite disturbance and suicidal/homicidal ideation. The psychiatrist noted a rule-out diagnosis of factitious disorder with predominately physical signs and symptoms, rule-out adjustment disorder with anxiety, and intermittent explosive disorder. Cluster B traits was recorded on Axis II. A Global Assessment of Functioning (GAF) score of 50 (serious) was noted. Antidepressant medication was prescribed for the treatment of impulsivity/aggression. Anger management, marriage counseling, and individual talk therapy were recommended. During inpatient rehabilitation, the applicant participated in group therapy and was evaluated by speech and TBI clinics. A psychiatry entry dated 10 June 2003 recorded that the applicant no longer felt angry, anxious or depressed. He stated his “divorce was final; he needed to cut his losses and move on.” A letter dated 11 December 2003, from a civilian provider to the referring military provider documented that the applicant had undergone a 6-day session of inpatient video-electroencephalography monitoring and there was no evidence of epilepsy. He had a single event that recorded no epileptic activity. His seizures were determined to be psychogenic in nature. The correspondence attached a recent evaluation that recorded no diminished energy level, excessive sleepiness, or difficulty concentrating. There was no depression, irritable mood or insomnia.

On 23 March 2004, the psychiatric NARSUM noted that due to the nature of his medical treatment needs, the CI’s work function had been difficult to assess; however, his social and interpersonal functioning appeared adequate. The psychiatrist noted that the CI was not taking any medications for an MH condition and had not had psychiatric hospitalizations. The physician reported the results of the 20 February 2004 mental status examination (MSE) that recorded his mood as “mellow,” and affect appropriate to stated mood. The CI indicated a surprise that he survived the fall. He denied any difficulty with memory or concentration; his insight and judgment were appropriate and the psychiatrist indicated he was a reliable historian. The psychiatrist stated that the CI “understood that whatever had caused his neurological and symptomatic symptoms appeared to be resolving with positive expectancy in the excellent care he has received at the Army community hospital and other facilities.” The diagnosis of conversion disorder was recorded and opined to be resolving and not specifically interfering with duty. The psychiatrist noted that there was no evidence of malingering. His symptom severity was noted as “mild, predisposition was severe, related to combat zone and significant psychological effects of trauma with surprising results of survival with actual minimum injury.” A GAF of 65 (mild) was assessed. The MEB examiner recorded diagnoses of mood disorder vs. adjustment disorder.

The VA Compensation and Pension (C&P) mental evaluation was not among the available treatment records; however, the June 2005 VARD noted an examination was conducted on 11 January 2005, 4 months after TDRL placement. The examination was consistent with a 30% disability rating for the condition of conversion disorder with post-traumatic head injury syndrome, coded 8045-9424. The VARD noted the mental examiner recorded that the CI’s VA provider had diagnosed mild head injury in the context of marital problems and rule-out factitious disorder with primary physical signs and symptoms. The same VA provider stated that the CI had “recovered spontaneously” from impairments and that the neuropsychology report from June 2003 stated that he had no residuals of closed cranial trauma. The February 2004 neurology examiner noted that there had been no neurological findings, but that the symptoms were either feigned or constituted a conversion reaction. The VARD noted the C&P mental examination recorded a mildly constricted affect with a mildly to moderately dysthymic and angry mood. Attention and concentration were intact. Effort and cooperation were questionable as performance on the test of dissimulation result, was borderline. Other discrepancies were noted and the examiner opined that the CI’s presentation of deficits across measures was more likely than not secondary to a conversion reaction and Cluster B traits than it was to closed cranial trauma. The VARD also documented that the examiner stated that the closed cranial trauma was mild, there were no deficits upon completion of the brain injury program, and that his performance during the C&P mental examination, if not feigned was more consistent with a conversion reaction. The examiner stated that the applicant “clearly” had “long standing personality issues and chronic anxiety and dysthymia as well as a somatoform presentation.” The examiner diagnosed conversion disorder with mixed presentation and rule out chronic anxiety with moderate dysthymia. A GAF of 75 (mild) was assessed.

On 23 March 2005, a hand-written note signed by a civilian social worker stated the applicant was” symptomatic for PTSD acute.” Symptoms suggestive of PTSD were not recorded. In July 2005, the applicant claimed the condition of PTSD; the VARD noted an increase evaluation effective on 29 July 2005 for the additional MH diagnoses of PTSD and depressive disorder, not otherwise specified (NOS). The VARD indicated that the diagnosis of PTSD was based on the questionnaire received on 29 July 2005 and a statement from the applicant’s parents detailing behavioral changes observed since the applicant’s return from the military. The behaviors mentioned were sleep disturbance, angry outburst, depression, memory problems, guarded emotions, hypervigilance of surroundings, tense and anxious moods and mood swings. Other cited evidence noted were medical records from March 2005 that noted a diagnosis of acute PTSD (by definition, occurs within 90 days of stressor) and recurrent major depressive disorder; VA hospital records from November 2005 - January 2006 (PTSD treatment program) that recorded the diagnosis of PTSD; VA examination in April 2006 with the diagnoses of chronic PTSD, depressive disorder, NOS. Other treatment records were cited that contained the diagnosis of PTSD.

An undated letter from his case manager, addressed “to whom it may concern,” noted that the applicant was admitted to the stress disorder treatment unit (SDTU) on 15 November 2005 for symptoms of PTSD. Symptoms were not elucidated. SDTU progress note on 5 January 2006, recorded the applicant reported while working in Kosovo in July 2001, his friend was killed in a rollover accident and in another incident, he stated he witnessed the decapitated body of his best friend. He stated he felt guilt, helpless, and numb over the death of his best friend and continued to experience anger, grief, sadness, lack of crying, depression, helplessness, not showing emotion, short term memory, lack of concentration, lack of trust, short and long term rage/insanity and high risk behavior. The applicant stated he had nightmares, intrusive thoughts, felt numb around the holidays and had difficulty adapting to society. The applicant reported two trauma exposed incidents while working in Africa and recorded the same trauma related symptoms as above, providing evidence that suggests Criterion A and B were met, but not C (Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness).

At the TDRL removal psychiatry examination on 2 February 2006, approximately 16 months after TDRL placement, the CI reported he continued in the past year to have symptoms of angry outburst, irritability, feeling apart from others, bad memories of his experience in Kosovo where one of his soldiers was decapitated in a Humvee accident and another soldier committed suicide. He said he felt responsible for both of them and could not get it out of his mind. He had been treated at the VA and was involved in group and individual counseling; which he stated did not help much. The CI stated he had spent 7 weeks in a program in the VA stress treatment unit, which was helpful, but that he had lost all the gains he made after discharge. He stated he continued to have intense pain, felt there were bugs on his legs from Africa that caused dermatological problems, felt there was Uranium in his body and believed the Uranium was responsible for his physical problems. There was no mention of any episodes of seizures. No psychotropic medications were noted among current medications. The CI reported his current symptoms consisted of being easily angered over small things and having bad memories of losing friends in Kosovo. He continued to believe there were fly larvae in his legs and that he had Uranium in his body responsible for his back pain and headache pain. He also continued to believe he frequently has blood coming from his rectum. MSE noted he was courteous but became irritated and angry during the interview and was tearful when remembering his friends who died. The psychiatrist opined that the applicant met criteria for delusional disorder, somatic type, because he held beliefs that his body was infested with larvae, that his illnesses are due to radiation and that he frequently bleeds from his rectum. Pain disorder with both psychological factors and a general medical condition was assessed and the examiner opined that the pain was “thought to be in excess of the physical injuries that account for the pain.” Paranoid personality disorder was also diagnosed. A GAF of 45 (serious) was recorded.

The applicant was re-admitted to the PTSD treatment program in May 2006 for 4 months. He did not have a history of suicidal ideations and reportedly had a past diagnosis of depressive disorder NOS, “convulsive disorder,” and personality disorder with Cluster B traits. The discharge summary on 23 June 2006, recorded a normal MSE and diagnoses of PTSD, depressive disorder, NOS, personality disorder, NOS, with cluster B traits. A GAF of 30 (severe) was assessed. The psychiatrist noted that the applicant reported his grandmother died “about a month ago.” His condition at discharge was recorded as stable with a normal MSE. A treatment plan entry, dated 9 June 2006, noted that the applicant was grieving the death of his grandmother in 2005 (inconsistent with the psychiatrist note above) and that the applicant had a supportive family. A diagnosis of PTSD was recorded.

The Board directs its attention to the rating recommendation based on the evidence just described. At TDRL entry, the PEB rated the condition of conversion disorder, coded 9424, at 10%. The VA rated the condition of conversion disorder, associated with post-traumatic head injury syndrome, coded 8045- 9424, at 30%. The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH conditions during processing through the military DES. The evidence of the available records showed the diagnoses of conversion disorder, pseudoseizures, mood disorder vs. adjustment disorder were rendered. The Board determined that no MH diagnosis was changed in the disability evaluation process. This CI therefore did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project. The Board noted the application of the provisions of VASRD §4.129 were correctly not applied (Mental disorders due to traumatic stress) for application at TDRL entry. The Board agreed that PEB adjudication of unfitting conversion disorder (pseudoseizures) was supported by the evidence. The Board next considered if there was evidence for a §4.130 rating higher than 10% at the time of TDRL entry. There was no evidence in the record of recurrent suicidal behaviors, visits to the emergency room (ER) for MH treatment, seizures occurring in the workplace and no recorded panic attacks. The use of psychotropic medications was minimal for treatment of his condition. There was no recorded ER visits or hospitalizations related to pseudoseizures prior to TDRL entry. The commander’s statement did not implicate an MH condition and none was profiled. His GAF was mild at TDRL entry. The Board concluded that the record in evidence did not support a higher than 10% rating at TDRL entry, and there was insufficient reasonable doubt (IAW VASRD §4.3) for recommending a 30% TDRL entry rating.

The Board agreed at the time of permanent retirement that the record adequately demonstrated that the CI’s symptoms related to the conversion disorder had remained stable throughout the TDRL period. There were no recorded episodes of pseudoseizures. However, he was newly diagnosed with a delusional disorder, somatic type. The physician also noted that the CI had a “history of conversion disorder” and that he continued to have “ongoing issues” with his somatization disorder. The psychiatrist later clarified that the somatization disorder included the diagnosis of conversion disorder and that the delusional disorder represented “a progression” of the conversion and somatization disorder. The examiner noted the CI had remained symptomatic, but major impairing psychiatric symptoms of angry outbursts, irritability, alienation and bad memories of Kosovo, were unrelated to the somatoform spectrum conditions. The Board acknowledged the PTSD diagnosis assessed by VA providers during the TDRL period. However, the applicant did not indicate a concern for his MH in the April 2003 Post-Deployment Health Assessment screen. He denied PTSD symptoms on 30 May 2003, and did not mention PTSD symptoms or indicated he thought he had PTSD in his letter of appeal to the MEB in April 2004. He disagreed with the profile that stated he could not run. He authored a rebuttal statement that stated the psychiatric examination had not mentioned any memory impairment; he did not mention PTSD symptoms. On 11 January 2005, 4.5 months after TDRL placement, the VA C&P examiner did not diagnose PTSD. The Board carefully reviewed all available clinical evidence leading up to the time of TDRL placement and removal and concluded that there was insufficient evidence that the applicant met DSM-IV diagnostic criteria for PTSD. PTSD was not a natural progression of the conversion disorder and cannot be directly attributed to the conversion or somatization disorder. The Panel concluded the diagnosis of conversion disorder was the correct diagnosis at the time of TDRL entry and at the time of separation the diagnosis of somatization disorder, which includes conversion disorder was acceptable. The Board carefully reviewed the treatment records and found insufficient evidence to support a diagnosis of PTSD at TDRL entry.

The Board next considered if there was evidence for a §4.130 rating higher than 10% at time of removal from the TDRL. Available treatment records during TDRL period recorded no history of suicidal ideation, no ER visit for MH concerns, no acute inpatient psychiatric care for conversion disorder related symptoms, no report of violence and no legal history. The Board also noted the CI had extensive hospital-based treatment not directly related to the somatization disorder; however, he was not employed and he remained with symptoms related to the somatization disorder (delusional). In addition, his examiners continually assessed his condition as related to the somatization disorder. The applicant reportedly continued to take psychotropic medications. The MSEs recorded at the initial VA C&P and removal TDRL examinations were essentially normal. The applicant reported good, effective family relationships. The Board concluded based on the overall MH presentation at TDRL removal, the CI’s condition reflected the disability level of 30% (Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks). 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 conversion disorder condition at TDRL entry. The Board further recommends a 30% permanent disability rating for the condition of somatization disorder.

Left Ulnar Nerve Paralysis. On 3 July 2003, the NARSUM noted the CI underwent transposition surgery in February 2003 for left ulnar nerve injury secondary to the fall noted above. The CI had consultations with neurology, and was followed by orthopedics. He participated in occupational therapy and underwent electromyography (EMG). EMG study dated 14 February 2003 was abnormal, consistent with an ulnar neuropathy at the left elbow with a conduction pattern that suggested demyelination neuropathy. The CI reported burning, sharp pain along the left forearm, and sensory changes. Occupational therapy (OT) visit on 10 June 2003, recorded the CI’s report of “arm burns” following passive range-of-motion (ROM). The CI stated he could take pain “as he had a high pain tolerance.” The examiner recorded left wrist dorsiflexion of 35 (NL=70) and left palmar flexion of 55 (80). The CI indicated he felt he had made good improvement in hand function since his initial presentation. Repeat EMG dated 26 February 2004, noted the CI reported significant pain and tingling over the palmar and dorsal aspect of the left thumb. He reportedly stated his left hand remained in a slightly weakened state, and that his left upper extremity fatigues quickly. The clinician noted that the fatigue was more of a problem than weakness and that overall the CI reported 30% recovery towards where he wanted to be; loss of strength was the greatest problem. Physical examination recorded minimal decreased sensation to light touch on the ulnar aspect of the left forearm and hand. EMG impression recorded mild left ulnar neuropathy with borderline slowing at the wrist and elbow and mild but clinically significant slowing across the elbow (nerve conduction). The clinician noted there was no EMG evidence of generalized polyneuropathy of the left upper extremity. At the NARSUM, the CI noted he had hung by his arm for about 15 minutes until he was rescued by his fellow Soldiers and stated he initially had no problems other than the pain from the arm and he even resumed work immediately after being rescued. However, about 2 weeks later, he developed some symptoms. Physical examination of the upper extremities noted wasting of the left intrinsic hand muscles, muscle strength of 3 out of 5 on left ulnar nerve testing, but 5/5 throughout. Sensation was normal throughout with slight hypersensitivity at the surgical scar of the left elbow. The physician noted there was residual weakness on examination and pain intensity was minimal and frequency was constant. The commander statement indicated the CI was not able to perform his required duty due to physical restrictions that included no lifting more than five pounds with the left arm. The VARD, dated 15 June 2005, referenced a VA C&P examination dated 3 January 2005 (not among records in evidence) that indicated the report of left elbow numbness and weakness in left hand digits. Physical examination noted decreased sensation in the left thumb and index fingers of the left hand. The VA examiner recorded the diagnosis of polyneuropathy, left upper extremity.

The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA chose the same coding options for the condition. The PEB rated the condition at 20%, noting moderate, incomplete paralysis (non-dominant) and the VA rated the condition as polyneuropathy of left upper extremity, coded 8716 (mild incomplete paralysis of the ulnar nerve), 10%. Absent an objective motor impairment component, there is no basis for assigning a higher disability rating to this condition at TDRL entry. The Board next considered the evidence at permanent separation. TDRL neurology removal examination dated 3 February 2006, approximately 17 months after TDRL entry, recorded decreased sensory in left digits four and five, and pain on palpation of the surgical scar. The physician noted in the history of present illness, that the CI “continues to have atrophy and mild weakness in the left hand;” however, concluded that the CI had moderate residual weakness and sensory change in the left hand and pain in the area of the elbow. The Board noted muscle bulk and tone were normal and left hand motor strength was recorded as 4/5 (mild). The Board concluded there was insufficient evidence and disparity in the neurological examination to support the higher rating of 20% under the 8716 code at the time of permanent separation. All evidence considered there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s rating decision for the left ulnar nerve condition at TDRL placement and permanent separation.

Chronic Low Back Pain. Available treatment records noted the report of low back and leg pain in 2002 that was initially diagnosed as sciatica, but later diagnosed as right hamstring strain. The NARSUM noted the magnetic resonance imaging of lumbar spine on 23 April 2003, demonstrated mild disc bulges at L4-5 and L5-S1 accompanied by facet hypertrophy causing mild spinal canal narrowing and very mild neural foraminal narrowing bilaterally at L4-5 level. Records indicated the applicant was treated conservatively with pain medication and physical therapy. There was no indication that he was a surgical candidate. The profile prohibited lifting, pull-ups, and push-ups, running, road marching, and repetitive jumping; however, allowed low and upper back stretches, knee to chest and turn and bend exercises, and lower body weight training. There were no recorded experiences of any incapacitating episodes, or disturbance of gait. At the PT visit dated 30 May 2003, approximately 42 months prior to separation, the examiner noted tenderness on palpation of mid-thoracic to lower spine with some guarding; however, muscle spasms were not recorded. ROM on flexion was 15 (90) degrees and extension of 0 (30) degrees.

The MEB/NARSUM physical examination, approximately 13 months prior to TDRL placement, did not record the presence of muscle spasm, neurological deficits or abnormal gait. The examiner noted tenderness to palpation in the lower paralumbar spine as the single positive finding, and noted that the CI took a non-steroidal anti-inflammatory medication on as-needed basis for back pain. ROM was not recorded. The 6 June 2006 VARD recorded the CI underwent the VA C&P examination on 3 January 2005, approximately 2 years prior to separation, and 4.5 months after TDRL placement. The VARD noted that the CI reported radiating back pain to the paraspinal muscles and denied radiation to lower extremities. Physical examination noted tenderness to palpation of the lower spine and ROM on flexion of 38, extension of 15, accompanied by pain. There was decreased sensation to all toes. The examiner diagnosed degenerative disc disease lumbar spine with lower extremity radiculopathy. The TDRL removal orthopedic evaluation in May 2006 recorded flexion of 45 degrees, no focal tenderness in the lumbar spine, normal muscle strength, and “no physical limitation of his movement.” The DA Form 199 noted that the orthopedic TDRL evaluation indicated tenderness was not present and that the ROM was limited by pain and was not the result of mechanical loss of motion.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition 10% for LBP “without significant neurologic abnormality” coded 5237 (localized tenderness), for TDRL entry, and 0% at permanent separation. The VA rated 20% code 5243-5237 (intervertebral disc disease and reduced ROM). A higher rating of 20% under the 5237 code requires spasms producing abnormal gait, or abnormal curvature of the spine, or forward flexion not greater than 60 degrees. The Board noted the absence of ROM measurements at the MEB examination, and the recorded ROM measurement 13 months prior to TDRL placement that showed lumbar flexion of 15 degrees. The Board agreed that examination did not have adequate probative value given the remoteness from TDRL placement. Board members noted the absence of recorded episodes of spasms in the treatment record, and the absence of radiographic evidence of abnormal curvature of the spine. The Board concluded there was insufficient evidence to support a higher rating under the 5237 code at TDRL placement. The Board next considered the rating determination based on the evidence at the end of TDRL for its permanent rating recommendation. The PEB rated the condition at 0% as noted above, and noted the absence of tenderness and “rated for no mechanical loss of motion.” The Board opined that the VA back examination, 2 years prior to separation, was too remote to have sufficient probative value.
The Board considered the neurology TDRL examination, 8 months prior to TDRL removal, to have good probative value. That exam recorded a normal gait; the CI could perform heel, toe, and tandem walk. The orthopedic TDRL examination found no tenderness to palpation and although, the CI subjectively reported pain on motion, functional loss was noted as absent. However, the physician documented 45 degrees of flexion, which is consistent with a 20% rating. The Board consensus was that the criteria for the 20% rating were met. 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 back pain condition at TDRL placement. The Board further recommends a 20% permanent disability rating.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the conditions of gastrointestional (GI) bleed with external hemorrhoid, chronic sinusitis, eczema, peptic ulcer disease, chronic headaches and mood disorder and botulism exposure were not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. These conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards. All were reviewed by the action officer and considered by the Board. There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.


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 left ulnar nerve condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board recommends permanent disability rating of 20%. In the matter of the conversion/somatization condition and IAW VASRD §4.130 the Board unanimously recommends a permanent disability rating of 30%. In the matter of the contended GI bleed with external hemorrhoid, chronic sinusitis, eczema, peptic ulcer disease, chronic headaches, mood disorder and botulism exposure conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. 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
TDRL PERMANENT
Conversion Disorder 9424 10% -----
Somatization Disorder 9421 --- 30%
Left Ulnar Nerve 8516 20% 10%
Chronic Low Back Pain 5237 10% 20%
COMBINED 40% 50%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131104, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




XXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXX, AR20140019327 (PD201302202)


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 50% 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] [Reserve retirement].

         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 50% 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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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