RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300338
BRANCH OF SERVICE:  Army	BOARD DATE:  20140429
SEPARATION DATE:  20050727

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized Reserve SPC/E-4 (62B/Construction Equipment Repairer) medically separated for chronic low back pain (LBP) status post L4-S1 fusion without significant motor abnormality.  In spite of surgery and other interventions, the back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3/S1 profile and referred for a Medical Evaluation Board (MEB).  Chronic LBP with radiculopathy was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Adjustment disorder with depressed mood, meeting retention standards, was also forwarded for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain status post L4-S1 fusion without significant motor abnormality” as unfitting, rated 20% citing “Range of motion limited by pain, antalgic gait.”  The adjustment disorder with depressed mood was determined to be not unfitting and therefore not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Rating too low during separation.”

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:

Service IPEB – Dated 20050623	VA - (3 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain s/p L4-S1 Fusion 	5241	20%	Failed Back Syndrome…	5299-5241	40%	20051018	
			Radiculopathy, Left LE	8599-8521	10%	20051018	
			Radiculopathy, Right LE	8599-8521	0%	20051018	
Adjustment Disorder	Not Unfitting	Depression…	9434	0%	20051025	
Other x 0 (Not in Scope)	Other x 1	20051018	
Rating:  20%	Combined Rating:  50%	
Derived from VA Rating Decision (VARD) dated 20060325 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.  The Board likewise acknowledges the CI’s contention for rating of his MH condition noted above which was determined to be not unfitting by the PEB; and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD, and based on the degree of disability evidenced at separation, will be recommended.

Low Back Pain status post Fusion.  In June 2003, the CI suffered a low back injury while lifting a heavy object.  He experienced a sharp lumbar pain and within a short time began to have radiating pain into his legs.  He was treated with duty restriction, non-steroidal anti-inflammatory drugs and narcotic medications.  Treatment by physical therapy and pain management made the pain worse and he noted no response to epidural steroid injections.  Magnetic resonance imaging study revealed Grade 1 spondylolisthesis (a 25% slippage of a vertebral body out of its normal position) with disc herniation at L5 and disc bulging at L3 & L4.  In July 2004, he underwent an L4-5, L5-S1 decompression surgery with posterior arthrodesis (joint fusion).  He stated that there was no improvement in his pain since the surgery.  At the MEB exam performed 6 months prior to separation, the CI reported a history of back surgery with plates, screws and rods and that he felt very depressed with everything that happened.  The MEB physical exam noted decreased sensation of the left lateral calf/foot.  There were no muscle spasms in the lumbar spine and the “…attached ROM (range of motion) sheet…” was not present for review by the Board.  The narrative summary (NARSUM) completed 2 months prior to separation noted that his LBP still radiated into his legs.  The right was worse than the left and the pain went to the bottom of the foot and all of his toes.  He denied any bowel or bladder dysfunction; however, his erectile dysfunction was attributed to the back pain.  He had started a home exercise program and did alright using an exercise bike until resistance was added, at which point the pain became intolerable.  The physical exam portion of the NARSUM was completed 3 months before the surgical procedure and is summarized below.  At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported chronic lower back pain with radiculopathy to both legs.  He used a hard body brace constantly and stated his condition did not cause incapacitation.  His functional limitations included no sexual intercourse; he always used a walker, inability to drive and could only travel for short periods of time.  The pertinent physical exam findings are summarized in the chart below.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are as follows:

Thoracolumbar ROM (Degrees)	NARSUM 2.5 Mos. Pre-Sep	VA C&P 3 Mos. Post-Sep	VA C&P 22 Mos. Post-Sep.	
Flexion (90 Normal)	15	20	35	
Combined (240)	70	100	90	
Comments
(Date of Surgery was 20040713)	ROMs obtained 3.5 months prior to surgery; Pos. antalgic gait & painful motion; Slightly decreased strength left leg; Neg. Straight leg raise (SLR); No sensory deficits; Normal reflexes	Pos. muscle spasm & tenderness; Pos. bilateral SLR; Pos. Deluca; Pos. weakness & sensory deficit left leg	Pos. muscle spasm, painful motion, tenderness & bilateral SLR; Pos. Deluca criteria; Pos. sensory deficit left leg; Normal reflexes	
§4.71a Rating	40%	40%	40%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic LBP status post spinal fusion by applying VASRD code 5241, spinal fusion, and rated it 20% citing “range of motion limited by pain, antalgic gait.”  The Board is unclear what rating standards/prerogatives the PEB utilized.  The VA applied VASRD code 5299-5241 and rated it 40% based on the ROM measurements documented on the C&P exam.  The Board considered all evidence present for review and determined that the ROM measurement documented on the NARSUM were obtained prior to surgery and over 12 months prior to separation and therefore, are not relevant to its rating recommendation at the time of separation.  The data reportedly contained in the MEB H&P dated 6 months prior to separation was not present for review by the Board.  The only probative ROM data on which to base a rating recommendation are the VA C&P ROM measurements obtained 3 months after separation.  Those values correspond to a 40% disability rating under the general rating formula for diseases and injuries of the spine.  There is no data that would allow for a rating based on incapacitation under the intervertebral disc syndrome code and the VA C&P exam specifically stated that incapacitating episodes were not present.  The VA also addressed the bilateral radiculopathy condition by applying the incomplete paralysis of a peripheral nerve and granted 10% for the left and 0% for the right.  The Board considered whether an additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for the associated radiculopathy at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to service disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no functional implications and the motor impairment was relatively minor and cannot be linked to significant functional consequence.  There is thus no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy and, the Board cannot support a recommendation for an additional disability rating on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the chronic persistent LBP status post fusion condition.

Contended Adjustment d/o with depressed mood Conditions.  The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military DES and determined that no MH diagnosis was changed or eliminated to the applicant's possible disadvantage.  This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The MH condition, adjustment disorder with depressed mood, was determined to be not unfitting by the PEB.  The Board’s charge with respect to the MH condition referred for review that was determined to be not unfitting by the PEB is an assessment of the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering PEB not-unfit determinations requires a preponderance of evidence.  There were three service treatment notes related to the CI’s MH condition present for review.  Two notes were following the CI’s participation in group therapy and diagnosed him with personality disorder and one was for medication refills with the diagnosis of adjustment disorder.  One note documented a euthymic mood with a broad affect.  The psychiatric addendum prepared 2 months prior to separation contained the following historical information:

Service member was seen for the first time in the Behavioral Health Clinic on 14 June 2004.  He was referred because he was complaining of hearing voices and seeing blurry images at night. He also reported having a short temper.  He stated he attempted suicide six months prior to that and that he did not seek any treatment even though he had taken 30 pills.  The diagnosis was Adjustment d/o with depressed mood.  He stopped coming in June 2004 and did not reappear until January 2005.  He reported still feeling depressed.  He was finding surgery, his possible divorce, and having erectile dysfunction being stressful.  He still complained about hearing voices instructing him to shoot his ex-wife and himself.  When [the MH provider] on 25 January 2005 he still complained about seeing figures.  However, [the MH provider] did not feel it was psychotic in nature.  They seemed to be more of his conscious thoughts directed towards his ex-wife.

Mental status exam documented that the CI “smiled very brightly” and had a euthymic mood.  He denied suicidal/homicidal ideations and he still complained of sleep problems but believed it was due to his back pain.  He stated he occasionally still heard voices and had no form of thought disorder.  His speech was goal directed and linear.  The examiner added the following opinion, “I do not believe that he is truly experiencing psychotic symptoms but it is more than what he is experiencing is psychotic like symptoms that are seen in personality disorders.”  The diagnosis was adjustment disorder with depressed mood with mild impairment for military duty and social/industrial adaptability.  He was also diagnosed with a personality disorder, not otherwise specified, and assigned a Global Assessment of functioning of 85 (absent or minimal symptoms, good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns).  The examiner stated that the CI did meet retention standards but recommended that the MH report be included in the CI’s MEB proceedings.  The adjustment disorder with depressed mood was not profiled or implicated in the commander’s statement and was 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 this condition 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 adjustment disorder with depressed mood condition and so no additional disability rating is 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 surmised from the PEB ruling in this case that a prerogative outside the VASRD was exercised and the condition was adjudicated independently of that prerogative by the Board.  In the matter of the chronic persistent LBP status post fusion condition, the Board unanimously recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a.  In the matter of the contended adjustment disorder with depressed mood condition, the Board unanimously recommends no change from the PEB determination 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	
Chronic Persistent Low Back Pain s/p Fusion	5241	40%	
RATING	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130507, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

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, AR20140013368 (PD201300338)

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 40% 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 40% 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						     

CF: 
(  ) DoD PDBR
(  ) DVA