RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300409
BRANCH OF SERVICE:  Army	BOARD DATE:  20140214
SEPARATION DATE:  20050121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SPC/E-4 (88M/Motor Transport Operator) medically separated for chronic back and neck conditions.  On 6 May 2003, while deployed to Iraq the CI was riding in the back of a 5-ton truck that came under enemy fire.  The driver drove erratically over unimproved roads for several minutes in order to evade direct enemy fire.  In the process the CI and several other soldiers were injured.  The CI injured his back and neck during this process. The conditions 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 profile and referred for a Medical Evaluation Board (MEB).  The chronic back pain and chronic neck pain conditions, characterized as “chronic neck pain and chronic back pain, with degenerative disc disease” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded six other conditions to include depression, erectile dysfunction (ED), gastroesophageal reflux disease (GERD), hemorrhoids and hyperglycemia for PEB adjudication.  The Informal PEB adjudicated “chronic back pain” and “chronic neck pain” separately as unfitting, rated 10% and 10%, respectively.  The remaining conditions, to include the mental health (MH) condition “depression,” were determined to be not unfitting.  The CI concurred with the Informal PEB findings and waived his right to a Formal PEB and was medically separated.

CI CONTENTION:  “Because it is an ongoing condition that is getting progressively worse.”

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 Army that his case may be eligible for review of the military disability evaluation of his MH condition in accordance with 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 changed during that process.  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.  The ratings for the unfitting chronic back pain and neck pain conditions are addressed below, along with the contended MH condition.  Additionally, the MEB conditions to include: depression, GERD, ED, hemorrhoids and hyperglycemia are within the scope and will be considered by 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 20041210	VA - Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5242	10%	Degenerative Disc Disease of the Lumbar Spine	5010-5243	10%	STR	
Chronic Neck Pain	5299-5242	10%	Degenerative Disc Disease of the Cervical Spine	5010-5243	10%	STR	
Depression	Not Unfitting	Anxiety Disorder w/Depression	9413	10%	STR	
GERD	Not Unfitting	GERD	7399-7346	0%	STR	
Erectile Dysfunction 	Not Unfitting	Erectile Dysfunction	7599-7522	0%	STR	
Hemorrhoids	Not Unfitting	Hemorrhoids	7336	Not Service Connected	
Hyperglycemia	Not Unfitting	No VA Entry	
No Additional MEB/PEB Entries	Other x 8	STR	
Combined:  20%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20050505 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Back Condition.  The narrative summary (NARSUM) notes the CI developed low back pain (LBP) following being thrown about the back of a truck traveling at high speed over rough terrain.  Lumbar spine X-rays on 24 July 2003 were negative, and lumbar magnetic resonance imaging (MRI) performed on 11 August 2003 showed degenerative disc disease (DDD) and facet joint arthritis, without any disc herniation, nerve impingement or spinal canal stenosis.  Orthopedic evaluation on 15 August 2003 noted normal strength, sensation and reflexes in the bilateral lower extremities (BLE).  Notes indicated centralized LBP with occasional radiation into the BLE and the CI reported numbness and tingling in his BLE.  Nerve conduction studies (NCS) of the BLE on 10 December 2003 showed a peripheral sensory neuropathy.  Neurological evaluations on 15 January 2004 through June 2004 noted a normal gait, including heel and toe walking.  BLE strength and reflexes were normal, but there was abnormal sensation testing to light touch, temperature and vibration, with a fluctuating exam.  According to the neurologist, the lower extremities (LE) polyneuropathy was not related to the CI’s back pain and was not an “unfitting condition.”  The sensory neuropathy was thought possibly due to a mild vitamin B12 deficiency.  A neurological addendum to the MEB NARSUM indicated that repeat NCS on 27 October 2004 showed improvement of the LE neuropathy following vitamin B12 repletion and there was no evidence of a lumbosacral radiculopathy.  At a chiropractic evaluation on 23 June 2004, approximately 7 months prior to separation, the CI reported constant LBP with occasional pain radiating into the LLE.  The examination showed full thoracolumbar range-of-motion (ROM), with painful motion with all motions and muscle spasms.  At the MEB exam on 5 November 2004, approximately 3 months prior to separation, the CI reported chronic LBP.  The MEB physical exam noted physical therapy (PT) ROM of lumbar flexion of 65 degrees (normal 90 degrees) and extension of 20 degrees (normal 30 degrees), with painful motion and a combined ROM of 210 degrees.  Reflexes were equal bilaterally and heel and toe walk was fair.

The VA rating was accomplished using the MEB documents, the STR and VA treatment records.  The VARD on 5 May 2005 noted additional evidence from VA treatment records between January and March 2005.  The VARD noted that the CI had not been treated by the VA for the LBP condition, but other treatment notes in VA records indicated in January 2005 the CI showed no distress, a normal gait and no complaint of pain.  In February 2005 the CI reported chronic neck and back pain.  In March 2005 the CI could touch his toes without complaints, had a normal gait and was noted to have normal lower body muscle strength and bulk.  There were no reports of incapacitating episodes or acute episodes since leaving the military.

The Board directs attention to its rating recommendation based on the above evidence. The PEB adjudicated the chronic LBP condition unfitting, rated 10%, as coded as 5299-5242 (analogous to degenerative arthritis of the spine).  The VA rated lumbar spine DDD as 5010-5243 (analogous to traumatic arthritis and DDD) at 10% also.  The Board deliberated the rating of the chronic LBP condition.  Notes in the record show that the CI had LBP with pain radiating occasionally into both LE with sensory neuropathy in the BLE not related to the LBP.  The thoracolumbar ROM was noted to be full, but painful at a chiropractic examination and 65 degrees at the MEB examination.  Lumbar MRI showed DDD and arthritis.  The Board agreed that the 10% rating IAW VASRD general rating formula for diseases and injuries of the spine specified as thoracolumbar forward flexion of greater than 60 degrees but not greater than 85 degrees was met and the 20% rating specified as “forward flexion of the thoracolumbar spine of greater than 30 degrees but not greater than 60 degrees; or a combined ROM not greater than 120 degrees; or muscle spasm or guarding severe enough to result in abnormal gait or spinal contour” was not achieved.  The Board reviewed to see if a higher evaluation of 20% was achieved coding IAW VASRD formula for rating intervertebral disc syndrome based on incapacitating episodes.  There was evidence in the record of incapacitating episodes of 2 days in quarters in the 12 months prior to separation due to back pain which did not achieve a compensable evaluation based on incapacitating episodes.  The Board concluded the chronic LBP condition met the 10% rating IAW VASRD §4.71a and there was no path to a higher evaluation.  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 for the chronic LBP condition.

The Board considered if there was evidence of a separately unfitting neuropathy that was a residual of the back condition.  The Board noted that the neurologist clearly elucidated that the CI had a “not unfitting” sensory polyneuropathy of the bilateral lower extremities that was not related to the CI’s back pain and there was no evidence of a lumbar radiculopathy based on the NCS.  The CI mentioned occasional radiation of pain into the BLE, but pain, whether or not it radiates is subsumed in the back condition rating IAW VASRD §4.71a.  The Board concluded therefore that additional disability rating for peripheral nerve impairment related to the back condition could not be recommended.

Chronic Neck Condition.  Notes in the STR indicated that the CI developed neck pain with numbness and tingling of his left upper extremity (LUE) following a chiropractic manipulation for his LBP.  The NARSUM noted chronic neck pain with DDD.  A cervical MRI on 22 September 2004 showed DDD and a possible small left, lateral C6-7 disc protrusion.  Bilateral upper extremity (BLE) nerve conduction studies on 18 August 2004 showed evidence of left C7 nerve root compression with a mild LUE neuropathy, but no evidence of the BLE sensory polyneuropathy noted above.  The exam at the NCS visit, approximately 5 months prior to separation, showed normal BUE strength and reflexes, with normal sensation on the right, and minimally decreased sensation of the left hand.  Cervical ROM was described as mildly decreased throughout all ROM with pain, with flexion described as unable to touch chin to chest by approximately 3 centimeters.  Testing for spinal nerve compression was positive on the left.  At the MEB exam, the CI reported chronic neck pain.  The MEB physical exam 5 November 2004, approximately 3 months prior to separation, noted PT cervical ROM of flexion 30 degrees (normal 45 degrees) with a combined ROM of 175 degrees.  The CI was noted to be right hand dominant.

The VA rating was accomplished using the MEB documents, the STR and VA treatment records.  The 5 May 2005 VARD noted additional evidence from VA treatment records between January and March 2005.  The VARD noted that the CI had not been treated by the VAMC for the neck pain condition, but other treatment notes in VAMC records indicated in January 2005 the CI had no complaint of pain.  In February 2005, he reported chronic neck and back pain.  In March and April 2005 the neck was described as “supple without report of pain, with normal upper body strength and bulk.”  There were no reports of incapacitating episodes or acute episodes since leaving the military.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic neck pain condition unfitting, rated 10%, as coded as 5299-5242 (analogous to degenerative arthritis of the spine).  The VA rated cervical DDD as 5010-5243 (analogous to traumatic arthritis and DDD) at 10% also.  The Board deliberated the rating of the chronic neck pain condition.  Notes in the record show that the CI had neck pain with LUE symptoms of minimally decreased sensation of the non-dominant hand with normal strength and reflexes.  The cervical MRI showed a small disc herniation at the C7 level, consistent with the CI’s findings on examination.  The MEB exam noted cervical ROM of 30 degrees.  In VA treatment notes at 2 and 3 months post-separation, exams noted the neck was supple without pain with normal muscle strength and bulk.  The Board considered that at the time of separation the evidence in the record supported decreased cervical ROM of “greater than 15 degrees but not greater than 30 degrees” which met the 20% rating IAW VASRD general rating formula for diseases and injuries of the spine and the 40% rating was not achieved, specified as “forward flexion of 15 degrees or less.”  There was no evidence in the record of incapacitating episodes for a higher evaluation coding IAW VASRD formula for rating intervertebral disc syndrome based on incapacitating episodes.  The Board additionally considered if the residual LUE radiculopathy warranted additional disability rating; but, members agreed that the there was no evidence in the record that the minimally deceased sensation in the non-dominant left hand had any functional implications in this case, and no motor weakness was in evidence.  Therefore the Board cannot support a recommendation for an additional disability rating on this basis.

Contended MH Conditions.  Records reveal that the CI was referred to the disability evaluation process between 11 September 2001 and 30 April 2012; therefore ostensibly meets the criteria for this MH review.  The Board therefore considered the appropriateness of any changes in or elimination of MH diagnoses; PEB fitness determination; if unfitting, whether the provisions of VASRD §4.129 were applicable; and a disability rating recommendation in accordance with VASRD §4.130.  The medical evaluation for the MEB (DD Form 2808) noted a history of PTSD.  The MEB NARSUM listed a diagnosis of depression.  The MEB forwarded depression, medically acceptable and the PEB adjudicated depression as not unfitting.  This applicant did appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project, with possible disadvantage to the applicant.  Notes in the STR indicated that the CI sought treatment with behavioral health (BH) in 2004 for symptoms of depression with suicidal and homicidal ideas without any plan or intent, at the same time as an MEB was being discussed for his non-MH conditions.  He was experiencing significant personal financial stresses and was angry, depressed and he felt his family would be better off financially without him.  He was started on medication and referred to anger management.  In June and July 2004 hospitalization was offered to him with concern noted regarding his potential for impaired impulse control under stress.  Risk assessments were performed by a psychiatrist in July and August of 2004.  The mental status examinations (MSE) were normal and the psychiatrist’s opinion was that the CI met retention standards IAW AR 40-501, but an adjustment disorder, not otherwise specified (NOS) was diagnosed.  At a counseling appointment in September 2004 the CI reported personal stressors of health problems, his MEB, his financial concerns and his marriage.  The MSE showed a depressed and frustrated mood, but he was noted to be “smiling and positive interactions continue to improve with each session.”  The diagnosis was anxiety disorder NOS with a Global Assessment of Functioning (GAF) of 65-68 (GAF 70-61- mild symptoms or mild difficulty in social, occupational or school functioning).  At a psychiatric visit In October 2004 the CI reported sleep problems associated with anxiety and irritability.  The diagnosis was anxiety disorder NOS with a GAF of 60 and the examiner indicated essentially no imminent risk of harm to self or others (GAF 60-51-moderate symptoms or moderate difficulty in social, occupational or school functioning).  In a BH discharge summary the CI’s psychological counselor summarized his care on 26 October 2004 as follows:  “At intake the CI admitted anger control problems but denied violent behavior and wanted to decrease stress, depression, and anxiety and improve sleep.  The course and progress was that the CI’s mood and relationships with others improved, but sleep problems continued.”  The examiner’s prognosis was good and the final diagnosis was depression, anxiety disorder NOS.  In a final visit to the counselor, after his MEB was completed on 22 November 2004, the CI reported that he gets annoyed sometimes, but was more outgoing and was more tolerant of others.  He indicated that depression symptoms were minimal but sleep problems continued.  He was looking forward to teaching trucking, since he would not be able to drive long trips.  The MSE was normal with a “pleased mood” and normal affect.  The GAF was 63-65.  The PEB adjudicated the MH condition as not unfitting.  The VARD on 5 May 2005, approximately 4 months after separation, noted that the STR indicated treatment for irritation, difficulty sleeping, depression and situational stress and noted that at post-separation VA treatment visits the CI now additionally reported nightmares, intrusive thoughts and interpersonal conflict.  The VA rendered a diagnosis of anxiety disorder with depression and rated 10% based on STR and VA treatment records.  The Board’s main charge is to assess the fairness of the PEB’s determination that the MH condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board noted that the evidence in the record indicated that the CI experienced MH difficulties approximately 6 months prior to separation; however, he was never treated in the emergency room and was never hospitalized psychiatrically.  His reported distress occurred during a time of significant personal stress, reportedly due to his medical conditions, the MEB process and personal issues.  Treatment notes indicated that his symptoms and objective examinations improved with outpatient treatment.  His BH discharge summary indicated his mood and relationships were better with a good prognosis and the CI confirmed this at his last visit.  The Panel noted that no MH condition was profiled, implicated in the commander’s statement or judged to fail retention standards.  There was no performance based evidence from the record that any MH conditions significantly interfered with satisfactory duty performance.  The Board agreed that there was not a preponderance of the evidence that any MH condition was unfitting.  Although a diagnosis of PTSD was recorded in the DD Form 2808 by a non-psychiatrist physician, there is no evidence that this condition was ever diagnosed by a MH professional.  There is no evidence in the available records supporting a PTSD diagnosis, specifically no evidence of trauma related symptoms or any indication to consider a PTSD diagnosis.  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 any MH condition, and, therefore, no disability rating can be recommended.

Contended non-MH Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that hypertension, hyperglycemia, GERD, hemorrhoids and erectile dysfunction were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  1) Hypertension-Notes in the STR indicated treatment of hypertension with hypertensive medications.  There were no incapacitating episodes due to hypertension in the STR.  2) GERD-Notes in the STR indicated an upper gastrointestinal series 11 March 2003 was performed to evaluate heartburn and GERD and was normal.  A primary care note on 17 November 2003 indicated a diagnosis of GERD.  3) Hyperglycemia-Notes in the STR indicated monitoring of elevated blood sugars without treatment with medications or evidence of emergency room visits or other evidence of functionally impairing diabetes mellitus symptoms.  4) Erectile Dysfunction-Notes in the STR indicated treatment of erectile dysfunction.  5) Hemorrhoids-There were no notes in the STR regarding hemorrhoids found in the records available.

None of these conditions were profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance based evidence from the record that any of these conditions 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 any of these contended conditions and so no additional disability ratings are 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 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 chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic neck pain condition, the Board unanimously and IAW VASRD §4.71a, recommends a disability rating of 20%, coded 5243.  In the matter of the contended MH condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  In the matter of the contended conditions of hypertension, hyperglycemia, GERD, hemorrhoids, and ED, the Board unanimously recommends no change from the PEB determinations 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 Back Pain	5003-5243	10%	
Chronic Neck Pain	5243	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130508, 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 XXXXXXXXXXXXXXXXXX, AR20140009387 (PD201300409)

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						     

CF: 
(  ) DoD PDBR
(  ) DVA