RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 CASE:  PD 13-00334	
BRANCH OF SERVICE:  Army	 BOARD DATE:  20140205
SEPARATION DATE:  20051103

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (67N20/ Helicopter Mechanic) medically separated for thoracic spine disc disease.  He suffered an onset of radiating upper back pain with lifting in September 2003 during a deployment to Iraq.  He was subsequently diagnosed with disc herniation and underwent surgical interventions.  The condition did not adequately improve to meet the requirements of his Military Occupational Specialty (MOS).  In addition to the spine condition, the CI was newly diagnosed with non-insulin dependent diabetes mellitus (DM) prior to separation.  He was issued a permanent P3/L3 profile and referred for a Medical Evaluation Board (MEB).  The thoracic spine and DM conditions were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  No other conditions were submitted.  An Informal PEB (IPEB) adjudicated “chronic back pain status post T3-T4 fusion, without neurologic abnormality” as unfitting, rated 10%, citing criteria of the U.S. Army Physical Disability Agency (USAPDA) pain policy.  The DM condition was determined to be not unfitting.  The CI appealed to a Formal PEB (FPEB) which affirmed the IPEB findings, and was medically separated with a 10% Service disability rating.  He was diagnosed with post-traumatic stress disorder (PTSD) and depression 12 months after separation.

CI CONTENTION:  “My back and neck were in worse condition then diagnosed my blood presure was even worse overall was in bad shape.” (sic)  No other specific contention was elaborated, and no request for review of any other conditions was specified or implied.

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.  In addition, the CI was notified by the Service that his case qualifies for review of his mental health (MH) condition in accordance with the Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012, and whose MH diagnoses were unfavorably changed or eliminated during that process.  In response to said notification, it is presumed that the CI has elected review by this Board for the MH condition(s) diagnosed after separation.  Accordingly, the case file was reviewed regarding unfavorable diagnosis change, fitness determination, applicability of VASRD §4.129, and rating (via §4.129 or §4.130 as appropriate) of MH conditions when Service adjudicated or Board recommended as unfitting.  The Service rating for the unfitting thoracic spine condition is addressed below.  The DM condition, Service adjudicated as not unfitting, was not contended and is thus not eligible for Board consideration; and, the contended cervical and blood pressure conditions were not identified by the PEB and are likewise not within the DoDI 6040.44 defined purview of the Board.  The aforementioned conditions, or any other conditions not requested in this application, remain eligible for future consideration by the respective Service Board for Correction of Military Records. 

RATING COMPARISON:  

Service FPEB – Dated 20050822 	VA (~5 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, S/P T3-T4 Fusion	5241	10%	Residuals, T3-4 Fusion	5241	40%	20060228	
DM, Noninsulin Requiring	Not Unfitting	DM, Type II	7913	20%	20060228	
No Additional MEB/PEB Entries	Other x 5	20060228	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20060320 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:    

Thoracic Spine Condition.  On 21 September 2003 (Balad, Iraq) the CI suffered an abrupt onset of mid-upper back pain, associated with left thoracic numbness, while lifting a 120 pound helicopter part.  He was treated in theater.  The first entry in the Service treatment record (STR) after redeployment was 2 months later.  There was continuing posterior thoracic pain, spasm, and left radicular sensory symptoms.  Thoracic disc protrusion at T3/4, with impingement, was identified by magnetic resonance imaging and, symptoms persisted in spite of Physical Therapy (PT) and temporary profile restrictions.  A T3/4 discectomy was performed in February 2004, which relieved the radicular pain; but, persistent axial pain and thoracic spasm prompted a T3/4 fusion in August 2004.  Post-operative x-rays confirmed good alignment and hardware placement.  The subsequent STR entries document some improvement with continued, but tapering, use of narcotic analgesics; and a trial of nerve injections; but an inability to resume the rigors of the MOS.  Extremity strength and neurological findings were normal except for circumscribed truncal numbness adjacent to the surgical site, and electromyelography (EMG) confirmed the absence of spinal neuropathy.  There were no gross range-of-motion (ROM) references, but a PT entry in June 2005 (4+ months pre-separation) documented lumbar flexion of 20⁰ and bilateral flexion of 10⁰; although, specific provider comments raise a question of whether these measurements may have been segmental without incorporating full thoracolumbar ROM. 

The narrative summary (NARSUM) characterized the pain as, “Intensity slight to moderate and frequency is constant.”  The physical exam did not comment on gait or spinal physical findings, and noted grossly normal neurological findings.  The ROM evidence cited in the PEB’s DA Form 199 findings were performed by PT (4 months pre-separation) and are charted below.  A civilian rehabilitation evaluation is in evidence, performed 2 weeks post-separation, which rated the pain at 5/10 and noted that narcotics had been weaned to a low dose; and, documented “trunk flexion 9.5 inches from floor with pain” (~70-80⁰) and modest limitations in other ranges (non-goniometric).  A civilian functional capacity assessment performed 2 months after separation documented “thoracic pain syndrome with normal gait … no severe functional loss despite pain.”  A VA Compensation and Pension (C&P) examination was performed 4 months post-separation.  The examiner recorded frequent (3-4/week) pain flares, rated 7/10, “precipitated by activity”, and resulting in “functional level is decreased by 50%”; use of a back brace; and occasional (1/month) falls.  The physical exam noted “mild limp on ambulation”, thoracic spine tenderness (no comment spasm), “pain with motion”, and normal neurological findings.  The VA endocrine examiner 2 days later recorded a normal posture and gait.  The VA ROM measurements are charted below.

The VASRD §4.47 (accurate measurement) compliant ROM evidence which the Board applied in its recommendations is summarized in the chart below.  

Thoracolumbar ROM	MEB ~4 Mo. Pre-Sep	VA C&P ~4 Mo. Post-Sep	
		Baseline	Post-Repetitions	
Flexion (90⁰ Normal)	40⁰	45⁰	30⁰	
Combined (240⁰)	100⁰	95⁰	145⁰	
§4.71a Rating	20%	n/a	40%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating was supported by the USAPDA pain policy, but was not compliant with VASRD §4.71a criteria for the ROM in evidence.  The VA’s 40% conceded DeLuca criteria for the decrease flexion with repetition, 30⁰ being the threshold between 20% and 40% ratings.  

The Board considered whether the VA DeLuca compliant VA ROM evaluation was sufficiently probative to support a recommendation for 40%.  In that regard, all corroborating or mitigating evidence must be considered.  There is some concern with the disconnect between flexion and combined ROM for the VA repetitive measurements themselves.  The improved ROM in all other planes over baseline, after repetitions, brings into question the accuracy (subjectively driven) of the 33% reduction in flexion; especially considering the 1⁰ margin between ratings.  The pre-separation PT flexion of 20⁰ (albeit mitigated by the possibility of segmental measurement) certainly lends support for concluding that ROM could be significantly impaired; but, the post-separation civilian evidence, the most temporally proximate to separation and least vulnerable to subjective rating bias, supports an opposite conclusion.  The mechanical ROM limitation of a single level thoracic fusion would be expected to be minimal.  After due consideration of all of the evidence, and mindful of the VASRD principle of reasonable doubt, member consensus was that a fair rating recommendation for the thoracic spine condition is 20% (without change from the PEB code).  

The Board additionally considered whether additional Service rating could be recommended under a peripheral nerve code, for the associated radiculopathy in this case.  The physical exam and EMG evidence, however, confirms that strength was unaffected; and, the residual sensory impairment has no functional limitations.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The Board must establish a functional impairment linked to fitness in order to recommend separate Service rating for a radiculopathy associated with unfitting spine conditions; a threshold clearly not reached by the evidence in this case.

Contended MH Condition.  There are no MH encounters in the STR.  The only suggestions of MH issues during service were an incidental note of “some depression” (in review of systems) by a civilian pain management consultant in September 2005 (6 weeks pre-separation); and, a positive response for depression on the MEB history with a notation by the examiner of “depressed since injury”.  There is no post-deployment health assessment in evidence, but a routine physical in 2004 (2 years after deployment) documents a “no” response for all MH questions.  No MH symptoms or impairment were implicated in the NARSUM or commander’s performance statement, and there was no psychiatric profile during service.  There was no formally diagnosed MH condition during disability processing.  This case therefore does/does not pending admin determination meet the inclusion criteria in the Terms of Reference of the Mental Health Diagnosis Review Project.  There was no mention of MH symptoms on the VA post-separation C&P, and no claim or rating for any MH condition on the original VA rating decision.  A VA psychiatrist made Axis I diagnoses of PTSD (Iraq deployment stressors) and depression at an intake MH evaluation on 21 November 2006 (12+ months post-separation).  The VA, however, has denied service connection of PTSD or other MH condition as of the most recent appeal decision dated 19 February 2013.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient support for recommending the addition of PTSD (or other MH diagnosis) as unfitting at separation and eligible for Service disability rating.  

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As discussed above, PEB reliance on the USAPDA pain policy for rating the spine condition was operant in this case and it was adjudicated independently of that policy by the Board.  In the matter of the thoracic spine condition, the Board by a vote of 2:1 recommends a Service disability rating of 20%, coded 5241, IAW VASRD §4.71a.  The single voter for dissent (who recommended a 40% rating premised on DeLuca and §4.7, higher of two evaluations) did not elect to submit a minority opinion.  In the matter of the contended MH condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Surgical Residuals, Thoracic Disc Disease	5241	20%	
COMBINED	20%	

PRO Note:  Don’t recall J code discussion, so left this in for now in case helpful.
J Codes: 10, 21, 1, 4     

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130114, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			

SFMR-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 XXXXXXXXXXXXXXXXXXXXXXX, AR20140007713 (PD201300334)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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