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AF | PDBR | CY2014 | PD-2014-01050
Original file (PD-2014-01050.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD-2014-01050
BRANCH OF SERVICE: Army  BOARD DATE: 20150414
SEPARATION DATE: 20090626


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-5 (Food Service Specialist) medically separated for cervical and lumbar spine conditions, and major depressive disorder (MDD). These conditions could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent U3/L3/S3 profile and referred for a Medical Evaluation Board (MEB). The conditions “lumbar spondylosis (degenerative arthritis),” “neck pain DDD [degenerative disc disease],” “major depressive disorder [MDD],” and “panic disorder without agoraphobia” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions (seasonal allergies and hyperlipidemia) as medically acceptable for PEB adjudication. The Informal PEB adjudicated her neck, back, and MDD (subsuming panic disorder) as unfitting, rated 10%, 0%, and 10% respectively, referencing the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: “My medical needs have become worse with lower back and right foot 70%.” His complete submission is at Exhibit A.


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.






RATING COMPARISON :

Admin IPEB – Dated 20090612
 VA* (~5 Mo. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Degenerative Arthritis, Cervical Spine 5242 10% DDD, Cervical Spine 5237 10% 20090202
MDD/Panic Disorder 9434 10% MDD/Anxiety Disorder 9434 50% 20090128
Degenerative Arthritis, Thoracolumbar Spine 5242 0% DDD, Lumbar Spine 5243 10% 20090202
Left Leg Radiculopathy… 8520 10% 20090202
Other x 2 (Not In Scope)
 Other x 7
Combined: 20%
 Combined: 70%
* Lumbar/radiculopathy ratings from original VA Rating Decision (VA RD ) dated 20 091119 . Cervical and mental health conditions
were initially deferred, and charted ratings are from VARD dated 20100225.


ANALYSIS SUMMARY:

Cervical Spine Condition. The CI was mobilized for deployment in June 2007 (2 years prior to separation), and developed neck pain (associated with load-bearing, no discrete injury), with transient bilateral radicular symptoms, about a month after commencing training. The cervical and associated lumbar symptoms (below) precluded completion of training and she was placed on medical hold. The service treatment record (STR) documented early resolution of radicular symptoms with normal cervical range-of-motion (ROM) and normal neurological findings. Magnetic resonance imaging (MRI) demonstrated “mild” DDD (C5/6, C6/7) without nerve impingement, and surgery was not indicated. The STR indicates a favorable response to conservative treatment; and, in fact, several later entries within months of separation indicate that the pain had resolved or nearly so. There are several STR entries throughout the treatment course documenting grossly normal ROM, with none to the contrary; and, there are numerous normal neurological exams, with none suggesting any significant nerve impairment. There is no STR documentation of abnormal spinal curvature or incapacitating episodes.

A VA Compensation and Pension (C&P) examination conducted on 2 February 2009 (5 months prior to separation), and documented that the CI’s neck pain was “much relieved but continue[s] in a low grade fashion on a daily basis.” The examiner noted the absence of incapacitation, and opined that the condition did not interfere with daily activities or occupation. The VA physical exam did not record specific physical findings for the cervical spine, but noted normal neurological findings of the upper extremities. The VA measured ROM was 35 degrees flexion (normal 45) and combined ROM of 275 degrees (normal 340), annotating painful motion.

The narrative summary (NARSUM) conducted on 20 April 2009 (2 months prior to separation), and noted “constant” neck pain rated 1/10 which was aggravated by extended periods of fixed posture (“computer work, etc.”) or bending over. The examiner opined that the CI “would not be able to tolerate wearing the full body armor or riding in ... military vehicles or performing many of the other demands of her MOS ... or many of her soldiering skills.” The NARSUM physical exam documented “some” left upper cervical spasm with “normal curvature,” and recorded normal reflexes with 5/5 motor strength (no sensory exam). The NARSUM measured ROM was normal, with flexion to 45 degrees and combined ROM of 340 degrees, annotating painful motion.

The Board directed attention to its rating recommendation based on the above evidence. The PEB’s 10% rating under 5242 (degenerative arthritis of the spine) was consistent with VASRD §4.71a criteria (conceding painful motion) for the MEB ratable findings and ROM evidence (corroborated by the STR). The VA’s 10% rating under 5237 (cervical strain) was consistent with the pre-separation C&P findings and measured ROM.

There was no evidence of abnormal spinal contour to achieve a higher rating; no evidence of additionally ratable peripheral nerve impairment; and, no documentation of incapacitating episodes would provide for a higher rating under that formula. 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 of the cervical spine condition.

Lumbar Spine Condition. The onset of the lumbar condition was concurrent with that of the cervical condition, and also associated with the load-bearing and physical demands of pre-deployment training. An MRI of the lumbar spine demonstrated multilevel DDD (L2-5) with nerve canal narrowing on the left at L3/4 and bilaterally at L4/5. A neurosurgical consultant did not recommend surgery. As with the cervical condition, lumbar symptoms improved with cessation of training and conservative measures; although radiating pain to the left lower extremity (LLE) and paresthesias (“tingling” of the great toe) persisted. An orthopedic entry from September 2008 (9 months prior to separation) reported “occasional” LLE sensory symptoms, documenting “No weakness. No radicular pain.” Normal neurological findings were recorded at that and numerous other exams, and there are no STR entries documenting LLE weakness or significant sensory impairment. Treatment notes approaching separation characterized the back pain as “minimal” and “much better.” Various STR entries document normal gait and grossly normal ROM (with none to the contrary), and there is no documentation of abnormal spinal contour or incapacitating episodes.

The C&P examination documented low back pain rated 3-4/10 with “dull” LLE pain, and noted limitations with prolonged standing and sitting. It was noted that the CI “can walk a mile,” that there had been no incapacitation; and, the VA examiner opined that the lumbar condition did not interfere with daily activities or occupation. The VA physical exam noted normal spinal curvature and made no comment with regards to gait, spasm, or tenderness. Positive neurologic findings were confined to weakness of left toe extension and decreased sensation of the great toes. The VA measured ROM was 90 degrees flexion (normal) and combined ROM of 185 degrees (normal 240), annotating “pain and aggravation of her [LLE] radiculopathy” with extension.

The NARSUM noted “constant” back pain (severity not specified) with occasional LLE radiation (above the knee), interfering with bending and lifting. The same military operational limitations elaborated above for the cervical condition were also ascribed to the lumbar condition. The physical exam documented normal lumbar curvature and the absence of spasm or tenderness (no comment regarding gait), with normal (5/5) lower extremity strength. The NARSUM examiner documented normal ROM measurements, specifying painful motion with extension and right lateral flexion.

The Board directed attention to its rating recommendation based on the above evidence. The PEB’s 0% rating under 5242 referenced VASRD §4.31 (no-percent rating), which stipulates “a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.” Both the NARSUM and pre-separation C&P examinations provide explicit documentation for VASRD §4.59 (painful motion), however, which would support the minimum compensable rating of 10% under §4.71a. The VA’s 10% rating under 5243 (intervertebral disc syndrome) cited painful motion, although the combined ROM from the C&P would independently support a 10% rating IAW §4.71a. There was no evidence for gait or contour abnormality in support of a higher rating, and no evidence in support of a higher rating under the §4.71a formula for incapacitating episodes. The Board additionally considered if the residual LLE radiculopathy at separation warranted an additional rating, as conferred by the VA.


The Board, however, must establish a functional impairment linked to fitness to justify separate rating for a radiculopathy associated with unfitting spine conditions, bearing in mind that the pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. There was no significant motor (strength) impairment, and the minor sensory deficit (confined to great toe) would logically have a negligible functional impact.
Members thus agreed that an additional rating for the lumbar radiculopathy could not be reasonably recommended. After due deliberation, considering all evidence and conceding reasonable doubt, the Board recommends a 10% rating for the lumbar spine condition (agreeing with the PEB code 5242).

Major Depressive Disorder. The STR indicates that the CI first presented for MH concerns on 6 July 2007 (about a month after mobilization, and concurrent with onset of neck and back complaints). This entry documented “a recent ‘breakdown’ while participating in weapons training ... caring for her ill mother for the last year and is worried about her mother’s welfare if she deploys ... also afraid of leading others Into battle when she does not feel she is combat ready.” The diagnosis was adjustment disorder with possible personality disorder, and 2 days later the CI was admitted in crisis to a civilian facility expressing suicidal ideation (7-day stay, records not in evidence). There are both civilian and military outpatient MH records in evidence, which reflect a stable and improving course after the admission. The civilian records cite a diagnosis of posttraumatic stress disorder (PTSD) without rationale or documentation of symptoms meeting diagnostic criteria. The diagnosis by service providers was adjustment disorder, and no mention of PTSD appears in any of the service MH notes or on automated problem lists [AHLTA]. The CI was treated with an anti-depressant (Prozac) and sleep medication (Ambien), was compliant with individual and group therapy, and there is documentation of satisfactory social and occupational functioning. Later MH entries document that symptoms had resolved and were stable on the above medications (concurrent with resolution of the deployment and domestic stressors). Mental status exams (MSE) from that period were normal. A MEB psychiatrist in June 2008 (12 months prior to separation) assigned a Global Assessment of Functioning (GAF) score of 85 (absent or minimal symptoms) and opined that the diagnosis of “adjustment disorder with anxiety” met retention standards.

A VA psychiatric C&P was conducted on 28 January 2009 (5 months prior to separation). The examiner opined that “her mood stabilized adequately” with treatment, noting current symptoms of “anxiety, decreased panic attacks, and sleep problems” (conflicting with contemporary treatment notes specifying that those symptoms had resolved). The CI was working part-time in a nursing home in addition to a full-time administrative assignment in the Guard, and enjoying a “positive relationship with her daughter” and her living circumstances on a farm (caring for livestock in exchange for boarding). The MSE recorded an “anxious” mood, but was otherwise normal without suicidal/homicidal ideation or other acute features. The Axis I diagnosis was “adjustment disorder with anxious mood” and the GAF assignment was 60 (range of moderate impairment).

A psychiatric addendum to the NARSUM prepared on 7 April 2009 (3 months prior to separation). At this exam the CI described herself as “mentally unwell” endorsing “hyper-anxious all the time ... problems with sleep, nightmares of field training ... panic attacks ... severe anxiety and depression.” Her objective occupational functioning (full plus part-time employment) was unchanged from above and she elaborated positive personal interactions at work; but, in contrast with the healthy social functioning endorsed at the VA exam 2 months earlier, the CI reported to the service examiner that “I just stay home, am afraid to leave home.” The MSE documented “anxious and depressed mood” and stated “thinking is illogical or irrational at times ... judgment is questionable”; but, did not relate any suicidal ideation, delusions, or any other acute or psychotic features. The Axis I diagnoses were MDD (single episode) and panic disorder (as per the MEB submissions); the GAF assignment was 55 (moderate range); and, the examiner opined that the condition(s) failed retention standards.

The VA and NARSUM examiners did not note any interval crisis or stressor in explanation of the progressing severity of endorsed symptoms from the near asymptomatic status reflected by the terminal outpatient notes from 6 months prior; nor, are there interval MH records documenting evaluation or treatment of worsening symptoms. There was no change in psychiatric medications (except Lunesta substituted for Ambien) prior to separation; and, a VA outpatient MH note 18 months after separation stated that the CI “has been doing fairly well on Fluoxetine (Prozac) since 2007.” The commander’s performance statement did not cite any MH diagnosis or symptoms, and documented intact abilities in the areas of cognition and interpersonal functioning. The permanent S3 profile at separation did not elaborate any psychiatric-specific limitations or prohibit weapon access.

The Board directed attention to its recommendations based on the above evidence; and, first deliberated whether the DoD mandate for application of the provisions of VASRD §4.129 was appropriately applied to its recommendations in this case. The constellation of stressors associated with the onset of MH symptoms included the threat of impending combat and personal harm; but, members agreed (in concert with the VA) that this would not reasonably constitute a “highly stressful event” as specified in §4.129. The Board also makes note that the civilian diagnosis of PTSD in this case is unsupported by any facts in evidence. Having so decided, members turned to the appropriate VASRD §4.130 rating recommendation for the MH condition at separation. The PEB’s DA Form 199 cited the §4.130 criterion of “symptoms controlled with continuous medication” for a 10% rating. The VA’s belated 50% rating for MDD/anxiety referenced post-separation VA evidence, and the decision does not provide a rationale or document facts in support of the rating.

Members agreed that §4.130 criteria for a 50% rating, “occupational and social impairment with reduced reliability and productivity” (and referencing acute symptoms than are not present in this case), were not supported in light of the intact occupational functioning in evidence at separation. The Board thus deliberated a recommendation in support of the 10% rating, “occupational and social impairment due to mild or transient symptoms which decrease work efficiency … [or] ... symptoms controlled by continuous medication”; versus, a 30% rating, “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.” The CI’s occupational functioning at separation included full-time military duties endorsed by her commander as satisfactory within physical limitations, part-time civilian employment in a role requiring full cognition and interpersonal skills, and domestic chores to accommodate living expenses. The probative value of the subjective acuity of symptoms reported to the C&P and NARSUM psychiatric examiners is weakened by competing evidence from preceding outpatient entries in the STR. Members agreed that a decrease in work efficiency and other 30% criteria are not adequately supported by the evidence; and, that the 10% criterion of symptoms controlled by medication at separation is a fair assessment from the totality of evidence. 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 of the MDD 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. 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 cervical spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.
In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a. In the matter of the MDD and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication. 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 re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:
invalid font number 31502
CONDITION VASRD CODE RATING
Degenerative Arthritis, Cervical Spine 5242 10%
Degenerative Arthritis, Thoracolumbar Spine 5242 10%
Major Depressive Disorder with Panic Disorder 9434 10%
COMBINED 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140224 w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record








XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX, AR20150008225 (PD201401050)


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 30% 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 30% 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                       XXXXXXXXXXXXXXX
                                    Deputy Assistant Secretary of the Army
                                    (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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