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AF | PDBR | CY2013 | PD2013 00190
Original file (PD2013 00190.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE NUMBER: PD1300190
BRANCH OF SERVICE: Army  BOARD DATE: 20130919
Separation Date: 20060831


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (11B/Infantryman) medically separated for lumbar spondylosis with herniated disc, L5-S1, magnetic resonance imaging (MRI) shows degenerative disc disease at L5 S1 with herniated disc at that level, without neurologic abnormality, thoracolumbar range-of-motion (ROM) limited by pain and chronic posttraumatic stress disorder (PTSD). The CI stated that his back pain began in August 2005 with no specific trauma. Treatment for PTSD began on 24 May 2005 with issues of extreme irritability, poor sleep, depressed moods, nightmares, inability to tolerate crowds, and flashbacks. The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3S3 profile and referred for a Medical Evaluation Board (MEB). The lumbar spondylosis with herniated disc condition, characterized as medically unacceptable by the MEB, and chronic PTSD, also characterized as medically unacceptable, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated the lumbar spondylosis and PTSD as unfitting, rated 10% and 10%. The CI made no appeals and was medically separated.


CI CONTENTION: “The rating I was initially given does not take into consideration the severity of the conditions.”


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 lumbar spondylosis with herniated disk, and PTSD conditions are addressed below; and, 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 Board for Correction of Military Records.



RATING COMPARISON:
Service IPEB – Dated 20060801
 VA - (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Lumbar Spondylosis with Herniated Disc L5-S1, without Neurologic Abnormality
 5243 10% Discogenic Lumbosacral Spine Disease with Radiculopathy Features 5243-5237 40% 20061008
Radiculopathy of the Left Lower Extremity Associated with Discogenic Lumbosacral Spine Disease with Radiculopathic Features 8520 10% 20061008
Chronic Posttraumatic Stress Disorder
 9411 10% Posttraumatic Stress Disorder 9411 50% 20061010
No Additional MEB/PEB Entries
 Other x 3
Combined: 20%
 Combined: 80%
Derived from VA Rating Decision (VARD) dated 20061212 ( most proximate to date of separation [DOS]).


ANALYSIS SUMMARY:

Lumbar Spondylosis Condition. There were two goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Thoracolumbar ROM
(Degrees)
 PT~5 Mos. Pre-Sep VA C&P ~ 1 Mo. Post-Sep
Flexion (90 Normal)
 35 (40 35 35) 20
Extension (30)
 10 (5 5 10) 15
R Lat Flexion (30)
 20 (20 20 20) 30
L Lat Flexion (30)
 15 (20 15 15) 30
R Rotation (30)
 30 (80 80 85) 25
L Rotation (30)
 30 (50 55 55) 25
Combined (240)
 140 145
Comment
 Painful motion Incapable of repetitive motion
§4.71a Rating
 20% 40%

In August 2005, the CI awoke with acute, severe atraumatic back pain which lasted for more than a week. The pain resolved on its own and then returned in September 2005. In October 2005, he presented with complaints of constant, mostly left-sided, low back pain (LBP) with left hip pain that radiated to the calf. An MRI in November 2005 demonstrated disc desiccation with slight flattening at L5-S1, and central and left paracentral disc herniations slightly displacing the exiting left S1 nerve root. The CI subsequently deployed, but because of worsening symptoms that included left lower extremity weakness, he was medically evacuated in January 2006 from Iraq to Germany. Evaluation by neurology reported persistent LBP with radiation to the left calf, with lower extremity tingling and numbness. Examination noted a limping gait and limited motion of the left lower extremity due to pain. There was some diminished pain sensation in the left lower extremity, but deep tendon reflexes (DTR’s) and motor system examinations were normal. There was examination evidence of nerve root irritation. The CI was returned to CONUS. The separation medical exam noted paraspinal tenderness, and painful and limited lumbar motion. Measured ROM was not provided. Some weakness of the left leg below the knee was reported, but gait was normal. Approximately 4 months prior to separation, the narrative summary (NARSUM) examiner indicated that the CI had constant LBP and occasional sharp shooting left leg pain. The pain was exacerbated by sitting, standing, lifting, carrying and physical activity, and was not significantly alleviated by physical therapy or medications. The examiner rated the pain according to the American Medical Association pain scale at mild to moderate and frequent. Physical examination noted some mild paraspinal muscle spasm and tenderness, but did not mention gait or spinal contour. A positive left straight leg raise test was present, but muscle strength and (DTR’s) were normal. Despite being a treatment option, surgery would not likely result in return to MOS duties; discussion with the CI therefore led to non-operative management at that time. At a psychiatric evaluation on 30 June 2006, the CI stated that his apparent “stiffness” was due to pain in his legs and residual pain from a history of pilonidal cysts. The commander’s statement noted that the CI could not perform his MOS duties due to his medical condition. At the VA Compensation and Pension (C&P) examination approximately a month after separation, the CI reported that he awoke daily with severe and constant LBP; and that even putting on his shoes, socks and pants was difficult due to the pain. He also complained that the LBP would occasionally radiate to the left lower limb and foot. Physical examination noted gait that was “normal but wide based.” Spinal contour and muscle spasm were not mentioned. Although painful motion was not specified, the examiner noted an inability to perform repetitive motion. No assistive devices were used. Normal muscle strength was present.

The Board directs attention to its rating recommendation based on the above evidence. Because the PTSD condition (as elaborated below) is subject to placement on a retroactive 6-month constructional Temporary Disability Retired List (TDRL), the Board is obligated to also recommend TDRL ratings for the lumbar spine condition. The PEB assigned a 10% rating under the 5243 code (intervertebral disc syndrome). The VA combined the same 5243 code with 5237 (lumbosacral strain), and rated the condition at 40% based on flexion less than 30 degrees. Board members agreed that the MEB ROM data supported a 20% rating (lumbar flexion greater than 30 degrees but not greater than 60 degrees), but noted the disparity between the service and VA examinations (with implications for the Board's rating recommendation). The Board deliberated the probative value of these conflicting evaluations, and carefully reviewed the entire file for corroborating evidence from the period preceding separation. The action officer opined that 20 degrees of flexion noted by the VA examiner would likely be caused by significant and obvious muscle spasm, which was not noted on the exam. Furthermore, the normal and near-normal ROM measurements in the lateral flexion and rotation planes rendered an assumed inability to repeat those motions questionable. Finally, the examiner’s unusual observation of “normal but wide based” gait merited further clarification. Members agreed that the MEB ROM data was more consistent with a normal gait and the absence of moderate or severe muscle spasm, and more reflective of the anticipated severity suggested by the clinical pathology. The Board is therefore relying more heavily on the MEB; and, accordingly, concludes that a 20% rating is more accurately described by the evidence. The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the minimal criteria under that formula. Next, the Board considered a permanent rating recommendation at exit from the constructional TDRL period. There was no additional, relevant evidence after separation in the record. As elaborated above, the more probative service data supports a 20% rating, applicable to the time of removal from TDRL. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a TDRL rating of 20% and a permanent rating of 20% for the lumbar spine condition.

Posttraumatic Stress Disorder (PTSD) Condition. After a deployment to Iraq that ended in September 2004, the CI presented to the mental health clinic in May 2005 endorsing problems with sleep, temper, verbal abuse, impulse control, anxiety, chronic fatigue, racing thoughts, memory, difficulty concentrating, rage and paranoia. Symptoms were present for 6 months and were worsening. The assessment by a social worker was major depression vs. PTSD. An antidepressant medication was started the following week in the family practice clinic for “probable PTSD.” At this June 2005 encounter, the CI endorsed symptoms of difficulty focusing on tasks, crying, vivid combat dreams and forgetfulness. Follow-up 3 weeks later indicated that depression was improving. On 1 November 2005, the CI was evaluated by a psychologist for readiness processing. A diagnosis of adjustment disorder with mixed anxiety and depressed mood (chronic) was given, and the CI was considered deployable. Approximately 2 months after deploying the CI was medically evacuated for the spine condition. A witness statement written on 26 June 2006 by the First Sergeant, documented that during the first deployment the CI’s platoon was exposed to heavy combat and to improvised explosive devices that resulted in the deaths of several of his platoon members and the wounding of many more. The NARSUM psychiatrist stated that the CI had been on three psychotropic medications prior to the examiner’s involvement in managing the condition in May 2006. After modifying the psychotropic medication regimen (still a three drug regimen) and adding a maintenance medication for pain (in May 2006), the CI reported that some symptoms resolved, he was sleeping 6-7 hours per night and nightmares were less frequent. Insomnia and nightmares still occurred once or twice per week, with anxiety, excessive worry, short term memory loss and intolerance of crowds. Anger outbursts still occurred but they resolved more quickly. The CI was noted to be “functioning well as an E-6 in his unit.” Mental status exam (MSE) noted normal orientation and euthymic mood; however, affect was mildly restricted and antalgic. Thought processes were normal and there was no evidence of delusions, hallucinations, or suicidal or homicidal thoughts. The examiner’s assessment was chronic PTSD and noted that serious occupational disciplinary or interpersonal problems had not occurred; but that his symptoms were affecting his relationship with his wife and children. Impairment for military duty was considered “marked” and impairment for social/industrial adaptability “mild.” The Global Assessment of Functioning (GAF) was 65 (connoting some difficulty in social, occupational, or school functioning, but generally functioning pretty well). The commander stated that the CI was an excellent soldier, but that his physical and mental conditions imposed extreme limitations on his soldiering abilities. The CI was noted to be currently functioning as a squad leader for a rear detachment. The initial C&P exam for PTSD, performed approximately a month after separation, indicated the CI had received individual psychotherapy twice per week, until the time of separation from the service and that he had been prescribed three psychotropic medications. The CI stated that he continued to experience symptoms of avoidance, hypervigilance, increased arousal, and daily recurrent thoughts and memories of combat. He also endorsed recurrent dreams associated with night sweats and restless sleep 5 times per week, and vivid flashbacks. Guilt feelings were stated to be frequent, and anxiety levels were high. Decreased energy level and poor motivation were reported. The examiner noted that the CI had not done any full-time work since his discharge from the Service.

Although the CI reported wanting to be home and avoid crowds, he also stated that he was beginning to have more interest in social activities, including going out to dinner on a regular basis and having others to his house for dinner. He “maintained some contact with people from his old company and he does not feel particularly upset when one of his buddies notifies him of the status of one of the original people with whom (he) had served.” He was noted to have “good contact with his family;” however the PTSD symptoms were “very disruptive and upsetting to his wife.” Hobbies included automobiles and cooking. The MSE demonstrated good grooming, and normal speech, psychomotor function, memory and intellectual abilities. Mood was noted to be low and affect sad. There was no evidence of suicidal or homicidal thinking. Insight and judgment were considered to be excellent. The examiner diagnosed severe PTSD and major depressive disorder (secondary to PTSD) of moderate severity. A GAF of 40 was assigned “Some impairment in reality testing or communication, or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.” A second C&P exam for PTSD on 17 December 2007 noted that the CI was on three psychotropic medications; the dosage of one medication was increased by the CI’s psychiatrist earlier that day. The CI stated that there was significant worsening of his paranoia, with a high level of hypervigilance and significant worsening of homicidal ideation without intent. Although he endorsed feelings of being distant and disconnected from others, he was re-bonding with his family. He continued to experience feelings of worthlessness, survivor guilt, sleep disturbance and difficulty concentrating. He stated that relationships with his wife and children had improved since the previous C&P exam. The CI had enrolled in college, but recently withdrew due to back problems after one semester. While in school, he was having some difficulty with irritability and frustration with other students, but this did not lead to confrontation. Academic performance was not mentioned. He had not sought employment since separation from the service, and was not currently seeking employment because of pursuing a college degree. MSE noted good grooming and hygiene. Psychomotor activity, speech, communication and thought processes were normal. There was no evidence of delusions or hallucinations. Mood was “ok” and affect somewhat blunted. He denied current suicidal thoughts, but did admit to homicidal ideation; however, he did not feel in danger of losing control of his actions and had not displayed any acts of inappropriate violence. The examiner assessed PTSD as moderate to severe and major depressive disorder as secondary to PTSD, and of moderate severity. A GAF of 45 (serious symptoms or impairment) was assigned largely based on the frequency of his re-experiencing symptoms, the intensity of paranoia, and the intensity of homicidal ideation without intent. Activities of daily living were unimpaired. The examiner opined that the CI would experience a moderate degree of impairment if he was to enter the workforce and that his social impairment was moderate.

The PEB adjudication occurred prior to the promulgation of the National Defense Authorization Act 2008 mandate for DoD adherence to the VASRD §4.129, and the Service did not apply the §4.129 requirement. The Board, IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases as appropriate), agrees that the stipulations of §4.129 are met in this case and will thus recommend a minimum 50% PTSD rating for a retroactive 6-month period on the (TDRL). The Board must then determine the most appropriate fit with VASRD §4.130 criteria at 6 months for its permanent rating recommendation. Evidence from the time of initial separation, including the NARSUM and the initial C&P, does not support a rating greater than 50%. Therefore a rating of 50% is assigned for the reconstructed TDRL period IAW with VASRD §4.129. The Board must next determine the most appropriate fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation. Since the NARSUM exam and first psychiatric C&P exam were relatively proximate to each other, the Board concluded that they each retained potential probative value regarding the permanent recommendation. The Board also acknowledges the second VA exam performed 15 months after separation and 9 months after the end of the TDRL period. DoDI 6040.44 specifies a 12-month interval for special consideration to VA findings, rendering the probative value of this VA evidence somewhat diminished. The Board must therefore weigh the evidence contained in the psychiatric NARSUM and first VA exam, balanced by the later VA evidence, in order to extrapolate an estimation of the ratable impairment at 6 months after separation. The probative value of the VA examinations is strengthened on the principle that they reflect the stress of transition to civilian life which is intrinsic to the Board’s permanent rating recommendation. The Board therefore agreed to assign relatively equal probative value to the evidence from the MEB evaluation and that from both VA evaluations in regards to its permanent PTSD rating recommendation. The VA assigned a 50% rating for the PTSD condition based on §4.130 criteria without relying on the provisions of §4.129; and the rating was maintained after the second C&P examination. The Board noted reported worsening between the time of the NARSUM and VA exams, and debated if this was a reflection of the stress of transition to civilian life. The severity of symptoms as reported by the NARSUM was mild to moderate, and improving. Prior to separation, he was functioning as a squad leader for a rear detachment. The first C&P examiner reported symptoms that were worse, including sleep disturbance, nightmares and anxiety. Although he was not working, he was involved in some social activities. This examiner’s assigned GAF of 40 seemed somewhat incongruent with the description of symptom severity. The second C&P examiner also noted some worsening of symptoms, especially paranoia and the development of homicidal thinking. It was confirmed that the CI had not sought employment due to pursuit of a college degree; however, there is no information regarding school performance. Social impairment was estimated to be in the moderate range by this examiner. The difficulty in assessing a level of occupational functioning was acknowledged, but it was opined that any impairment would likely be of a moderate severity. While a GAF of 45 was recorded, this was explicitly based on severity of reported symptoms. It is well established in general, and in Board practice specifically, the GAF assignment is too soft a measure and too widely variable amongst providers to be heavily relied on for §4.130 rating determinations. Board members agreed that the 10% rating criteria were exceeded, and 70% criteria were not approached. The deliberation settled therefore on arguments for a 30% versus a 50% permanent rating recommendation. The general description in §4.130 for a 30% rating is “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily);” and that for 50% is “occupational and social impairment with reduced reliability and productivity.” The C&P examinations did not cite evidence which would confirm that either reliability or productivity on the job was suffering because of psychiatric symptoms. The most direct evidence and assessments of occupational functioning (the NARSUM and second VA exam) do not suggest impairment more than moderate. Social functioning, while somewhat impaired, was in the mild to moderate range. Furthermore, few if any threshold symptoms suggestive of a 50% rating were present. Support for the 50% criteria is thus overly speculative, and the preponderance of evidence more securely supports the 30% criteria. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a TDRL rating of 50% and a permanent rating of 30% for the PTSD 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. In the matter of the lumbar spondylosis condition, the Board unanimously recommends an initial TDRL rating of 20% and a 20% permanent rating at 6 months IAW VASRD §4.71. In the matter of the PTSD condition, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DoD directed and a 30% permanent rating at 6 months IAW VASRD §4.130. 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 disability combined rating of 60% for the prescribed period of temporary retirement (IAW §4.129), and then a permanent combined 40% disability retirement effective 6 months after entry on the TDRL.

UNFITTING CONDITION
 VASRD CODE RATING
TDRL PERMANENT
Lumbar Spondylosis With Herniated Disc L5-S1 Without Neurologic Abnormality
 5243 20% 20%
Posttraumatic Stress Disorder
 9411 50% 30%
COMBINED
 60% 40%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130421, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB / xxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for xxxxxxxxxxxxxxxxxxxxxxx, AR20130021892 (PD201300190)


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                                                  xxxxxxxxxxxxxxxxxxxxxxxxxx
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)


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