RECORD OF PROCEEDINGS 
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX			BRANCH OF SERVICE: ARMY
CASE NUMBER:  PD0900189			SEPARATION DATE: 20030711
BOARD DATE: 20100901			
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SUMMARY OF CASE:  This covered individual (CI) was a Specialist Intelligence Analyst medically separated from the Army in 2003 after over 4 years of active service.  The medical basis for the separation was Chronic Lower Back Pain (LBP).  The CI's LBP started in 2000 during physical training and worsened after a heavy lifting episode.  Her LBP increased and she had right leg radicular (radiating) pain and right foot numbness.  An MRI demonstrated a herniated lumbar disk (HNP) at L4-5.  Surgery (20020617) improved her condition for some time, but her LBP symptoms returned.  She did not respond adequately to medication and therapy to complete the Army Physical Fitness Test (APFT) or fulfill the physical requirements of her military occupation specialty (MOS), was removed from her MOS tasks, placed on a permanent L-3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded two lower back conditions to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  No other conditions appeared on the MEB’s DA Form 3947 submission.  Other conditions included in the narrative summary (NARSUM) and disability evaluation system (DES) packet will be discussed below.  The informal PEB adjudicated the lower back pain related to degenerative lumbar disc (DDD) condition as unfitting, rated at 10% disability using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Army and Department of Defense regulations.  The PEB adjudicated the history of back surgery without residual radiculopathy, as not unfitting.  The CI appealed her PEB results and was scheduled for a formal PEB.  She withdrew her appeal and was thus medically separated with a 10% disability rating.
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CI CONTENTION:  For increased back rating and addition of a mental health rating; The CI states: "I have since had the condition return and I am rated at 90% from the VA. I was never told why I should have been evaluated for my mental health issues and was told by my PEBLO to sign a waiver for being reviewed because it would help speed up my discharge. I didn't understand the significance at the time and now am rated 70% for depression/anxiety from the VA.”  She additionally lists all of her VA conditions and ratings as per the rating chart below.  A contention for their inclusion in the separation rating is therefore implied.  ______________________________________________________________________________

RATING COMPARISON: 

Service PEB – Dated 20030227	VA (2 Mo. Prior to Separation) – All Effective 20030712*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP, DDD 	5293 5299 5295	10%	DDD L4-5 … Back Pain	5293-5292	40%	20030515	
Back Surgery, History 	Not Unfitting	Scar, … Lumbar Discectomy	7804	10%	20030515	
↓No Additional DA 3947 Entries↓	Right Leg … Radiculopathy 	8520	10%	20030515	
	Adjustment Disorder, …  	9440	30%	20030515	
	Cervical Strain	5290	20%	20030515	
	Non-PEB X 4 / NSC X 3	
TOTAL Combined: 10%	TOTAL Combined (Includes Non-PEB Conditions): 70%	
     *Increases in VA ratings to combined 80%, 20031031 (Kidney Stones); then 90%, 20041025 (9434) 
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ANALYSIS SUMMARY:  

Low Back Condition (LBP).  The VASRD in effect at the time of separation did not use the current General Rating Formula for Diseases and Injuries of the Spine criteria.  The back condition was likely rated IAW the 2002 VASRD standards (PEB date 20030227); however, the 2003 VASRD (revised 20030701 from Aug 2002 changes) will be used as it was effective prior to the CI’s date of separation (20030711).  The current General Rating Formula for Diseases and Injuries of the Spine (not effective until 20030926) is based predominately on range-of-motion (ROM) measurements and is less subjective than the “older” spine rules, but it is not applicable in this case.  Ratings under the “older” spine rules were based on the examiner’s or rater’s opinion as to whether the disability was mild, moderate, or severe; as well as additional criteria.  There were four detailed back examinations including three with goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation.  The exams are summarized in the chart below.     

Thoracolumbar	Separation Date:  20030711	
Goniometric ROM	PT 20021211	Consult 20021219	VA 20030515	VA 20040708	
Flexion 0-90⁰ normal	0⁰-45⁰	50% reduced	0⁰-30⁰	0⁰-30⁰	
Combined 240⁰ normal	(? 110-170⁰)	50% reduced	75⁰	55⁰	
§4.71a Rating (est)	10-20%	20%-40%	40%	40%	
Comments	No rotation measurement	+ FABER, Noble’s, Thomas, Ely, Trendelenburg	Asymmetric reflexes, RLE sensory loss	Weakness, lack of endurance and fatigue following repetitive use	

The MEB Consult of 20021219 documented ROM “is limited by 50% to anterior flexion and to extension” and pain on other lower back motion; tenderness to palpation, numerous specialty back tests were abnormal, right leg light touch and pinprick diminished, and a positive Trendelenburg test.  Electrodiagnostic studies were incomplete due to poor tolerance.  The MEB exam of 20030109 documented “some limitation of low back range of motion” and referenced the ROMs from PT of 20021211 noted in the chart above.  The CI was noted to have normal gait and was taking narcotics for pain with only “20%” relief.  The VA examination was accomplished prior to separation and included goniometric measurements for every axis of lumbar motion as noted in the chart above.  The lumbar area was tender and gait was noted as abnormal.  A right leg sensory (pinprick) radiculopathy was documented with asymmetric Achilles and patella reflexes.  VA exam of 20040708 demonstrated similar limited ROMs, with normal reflexes, but with “some evidence of weakness and lack of endurance and fatigue following repetitive use.”  The CI was on chronic Methadone in addition to multiple Percocet per day at that time.  The focus of this case is the rating of the CI's back condition and associated disabilities under the older VASRD and spine ratings revised as of 20030701.  The military exams did not include measurement of lumbar spine rotation, and did not include repetitive motion or fatigue.  The MEB consultation, as noted in the CI’s appeal, indicated that the CI did have Trendelenburg sign (abnormal pelvic sag and abnormal gait).  The VA exam was accomplished pre-separation and closer to the CI’s date of separation than the MEB evaluations.  The CI’s back condition including residuals of scar tenderness and right leg radiculopathy appeared to worsen following the MEB and her pain continued to worsen post discharge as indicated in multiple post-separation VA evaluations and her pain medications.  At the time of separation, her lower back condition is adjudged to have had severe limitation of motion considering the degree of lost ROM documented in the closest exam (combined 75⁰), positive Trendelenburg test, and additional back related disabilities that were not separately unfitting or ratable.  All evidence considered and IAW VASRD §4.3, reasonable doubt is resolved in favor of the CI in recommending a separation rating of 5292 at 40% for the lower back condition.  

Low Back Condition Residuals (Scar and Right Leg Radiculopathy).  

Back Surgery Scar.  The MEB exam and consult documented non-painful scar and no significant attributes of a scar required for rating IAW the VASRD.  The pre-separation VA exam documented a tender scar which was rated at 10%.  The Commander’s statement noted that the CI was unable to sit or stand for prolonged periods and it is possible, but speculative, to consider that the back scar was responsible for some of this disability.  The Board struggled with the decision of whether to conclude the scar itself was additionally unfitting.  It was accepted that a convincing threshold should be reached to justify the addition of a VASRD-mandated 10% to the separation rating of any soldier on this commonly-occurring basis.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting addition of her tender back scar as an unfitting condition for separation rating.

	Right Leg Radiculopathy.  Although the NARSUM stated that there was no radiculopathy, the MEB consult noted diminished pinprick in the right leg and the DD Form 2807-1, dtd 20021210 (12c, d and 14c), clearly indicated right leg radicular numbness and tingling to the toes. The provider summarized in item 12d radicular symptoms "went away after surgery-but recurred."  The pre-separation VA exam documented right leg sensory (pinprick) radiculopathy with asymmetric Achilles and patella reflexes.  The later VA exams continued to note sensory deficit in the right leg.  There was no indication that the right leg was more prone to injury or that this right leg sensory loss materially interfered with performance of duty.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting addition of her right leg radiculopathy as an unfitting condition for separation rating.  

Other DA Form 3947 Condition (History of Back Surgery).  The condition was judged to be within AR 40-501 standards, was not profiled and was not identified as an impairment in the Commander’s statement.  All disability related to the history of Back Surgery would be appropriately rated under the CI’s unfitting back condition.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB fitness adjudication for the History of Back Surgery condition.

Other Conditions (Mental Health Rating - CI Contention).  The CI was evaluated for mental health conditions as part of her MEB.  The psychiatric consult noted no Axis I diagnoses and a history of treated and resolved Adjustment disorder with depressed mood.  Adjustment disorders do not constitute a physical disability and are not rated by the DES, nor were any mental health symptoms apparent at the time of discharge or considered in the CI's unfit determination. The NARSUM noted PMH of "Depression treated with Prozac in the past, self discontinued 2 months ago." The history on DD Form 2807 notes "I had depression for family issues" and noted trouble sleeping due to back pain. The Commander's letter does not mention any behavior or mental health related issues impacting the CI's ability to do soldier duties and the Profile was S-1. The VA did later diagnose the CI with Major Depression associated with her back condition. The VA psychiatric evaluation dated 20060322 appears to relate the depression to a sexual assault from a fellow soldier.  Multiple VA exams also noted the contributing factor of pain from the CI’s lower back condition to her depression symptoms.  Regardless of the etiology of CI's post separation major depression; unfitting mental health issues were not apparent at the time of her discharge.  Progression of symptoms following discharge is not a basis for the PDBR to either add unfitting diagnoses or change PEB ratings absent special rules. Depression/anxiety should not be added as an unfitting diagnosis.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting addition of any mental health condition as an unfitting condition for separation rating.

Other Conditions (Cervical and Kidney Stones).  Additional conditions documented in the VA examinations with ratings of 10% or higher within one year of separation were a cervical condition and Kidney stones.  Neither of these conditions were mentioned in the DES file.  The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.  The Cervical and Kidney stones conditions and any contended conditions not covered above remain eligible for Army Board for Corrections of Military Records (ABCMR) consideration.  The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.
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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 lower back condition, the Board unanimously recommends a rating of 40% coded 5292 IAW VASRD §4.71a (rather than 5295-5292).  In the matter of the history of Back Surgery condition, the Board unanimously recommends no recharacterization of the PEB adjudication as not unfitting.  In the matter of the mental health condition, lower back scar, right leg radiculopathy, or any other medical conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.
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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 her prior medical separation.

UNFITTING CONDITION	VASRD CODE	RATING	
Lumbar Spine, Severe Limitation of Motion Secondary to Degenerative Disc Disease L4/L5, L5/S1, Status Post L4/L5 Diskectomy 	5292	40%	
COMBINED	40%	
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The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20090224, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.