RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300470
BRANCH OF SERVICE:  Army	BOARD DATE:  20140415
SEPARATION DATE:  20051026

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (97B/Counter Intelligence) medically separated for mechanical low back pain (LBP).  The CI fell from a truck in 2002 and injured her back.  She re-injured her back in December 2004 from a truck accident in conjunction with an improvised explosive device (IED) blast during a deployment to Iraq.  Despite follow-up conservative treatment, the CI’s condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent lower extremity level three (L3) profile and referred for a Medical Evaluation Board (MEB).  The LBP condition, characterized as “chronic mechanical low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The PEB adjudicated “chronic mechanical low back pain, without neurologic abnormality” as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI rebutted the original PEB determination claiming combat relatedness and a more severe disability of her back.  The PEB reconsidered its original finding and confirmed combat relatedness for the CI’s unfitting back condition but maintained the original 10% disability level for her back.  The CI made no further appeals and was separated.

CI CONTENTION:  “Injuries were received due to IED explosion in Iraq.  Upon returning stateside, it was determined I was medically unfit for duty, even after reenlisting while in Iraq.  Ending a career from which I wished to retire from.”

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 she 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 20050630	VA - (2 Mos. Pre Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical Low Back Pain, Without Neurologic Abnormality	5299-5237	10%	Low Back Injury	5237	10%	20050808	
No Additional MEB/PEB Entries	Other 7	20050808	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20051123 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Mechanical Low Back Condition:  The first entry of relevance in the service treatment record is from 28 July 2003, when she was seen for chronic LBP and recurring headaches for 1.5 years after a fall off a 5-ton truck.  Physical examination was normal, X-rays of the lumbar spine showed minimal positional rotary scoliosis convexity to the right, otherwise normal.  She was diagnosed with mechanical LBP.  The CI was treated by physical therapy and at a chiropractic clinic.  On 5 December 2004, while deployed, she was medically evaluated after being in the vicinity of an IED explosion the day prior.  The blast lifted her and she fell down into the turret of her vehicle.  She reported her back was sore, worse in the lower back; no radicular symptoms, no weakness, ears were ringing and muffled.  Physical exam was noted to be normal, no tenderness, no muscle spasm, full active range-of-motion (ROM), normal ambulation and normal strength.  Her ears were diagnosed with mild bilateral cerumen (earwax) impaction.  She had frequent follow-ups by a chiropractor and primary care afterwards.  On 11 May 2005, she was given a permanent L3 profile for mechanical LBP, which stated she was unable to carry and fire an individual-assigned weapon, unable to move with a fighting load at least 2 miles, unable to construct an individual fighting position and unable to do 3-5 second rushes under direct and indirect fire.  No alternate Army Physical Fitness Test (APFT) and exercise at own pace and distance.  She was restricted from lifting or carrying more than 10 pounds, no standing more than 15 minutes, no marching, and no impact activities.  The commander’s statement dated 12 May 2005 stated she was physically incapable of performing the assigned military duties due to her back injury.

The MEB narrative summary dated 11 May 2005 (5 months prior to separation) noted the CI fell off a truck and hurt her lower back in 2002; she improved enough to pass her physical training test in 2003.  She deployed to Iraq December 2003 – January 2004.  She was seen at the chiropractic clinic several times for treatment, without relief.  Pain was 4-5/10 to 8/10, virtually constant, 75% of the time.  Pain was of the lower back and did not radiate to the lower extremities.  There were no bowel or bladder problems and she used Naprosyn daily.  X-rays were normal.  Physical examination revealed normal mood.  There was a normal gait and some tenderness from L3 to S1.  Straight leg raising test for radiculopathy was negative, reflexes were normal, normal strength, no muscle atrophy and no neurovascular changes.  A physical therapy ROM measurement note on 12 May 2005, 5 months prior to separation, was performed with an inclinometer without normal values or specification of whether the dual inclinometer or single inclinometer method was used.  Flexion was 40 degrees (no normal value or technique specified), extension 15 degrees (no normal value or technique specified), lateral flexion right 20 degrees, left 15 degrees and rotation right 10 degrees, left 10 degrees.

At the VA Compensation and Pension (C&P) exam performed on 8 August 2005, 2 months prior to separation, the CI reported lower back pain for 3 years.  Pain was constant, aching and sharp traveling to the buttocks (6-7/10 to 10/10 highest), elicited spontaneously and by physical activity, improved by Flexeril and heat.  No intervertebral disk syndrome and no bowel or bladder dysfunction were noted.  She could function well with medication.  Physical examination showed normal posture, normal gait and no assistive devices.  Thoracolumbar ROM was flexion 90 degrees (normal is 90), with pain occurring at 80 degrees; extension was 30 degrees (normal is 30) with pain occurring at 25 degrees; right and left lateral was 30 degrees (normal is 30) with pain occurring at 30 degrees; right and left rotation was 30 degrees (normal is 30) with pain occurring at 20 degrees.  The ROM was not additionally limited by fatigue, weakness and lack of endurance or coordination.

The Board directs attention to its rating recommendation based on the above evidence.  The Board considered the PEB codes 5299 (rated analogous to) - 5237 (lumbosacral or cervical strain) and the VA used the same 5237 code.  The Board found that the VA C&P examination was both most proximal to separation and provided goniometric ROM.  Thus it was assigned the highest probative value for a rating recommendation.  The Board found no evidence in the clinical record for a higher 20% rating with findings such as forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (actually measured at 90 degrees, which is normal with pain at 80 degrees); or, the combined ROM of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis.  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 mechanical LBP condition.

Contended Mental Health Conditions.  The Board noted no MH conditions were referred to the MEB or PEB for adjudication.  The Board adjudged this to constitute a de facto determination by medical providers that no MH condition failed to meet retention standards or was unfitting for continued military service.  The Board’s first charge with respect to these conditions is an assessment of fitness based on a preponderance of evidence.  This applicant did not appear to meet the criteria of the Mental Health Review Terms of Reference.

The first MH note was a social work services note on 12 January 2005.  The applicant complained of recent emotional stress from a 3-year relationship about to end.  She was grieving, no sleep disturbances, no insomnia, no anhedonia, no loss of interest in friends and family, no absence of motivation, concerned about work-related health problems with back and problems with relationship.  Mental status examination (MSE) documented a well-nourished, oriented individual in no acute distress, with normal appearance.  Mental status was normal, mood was euthymic, affect was normal, cognitive functioning was normal and there were no hallucinations or suicidal tendencies.  No diagnosis was given at the time.  On the 2 February 2005 follow-up, she was coping effectively with a change in relationship.

On 5 July 2005, 3 months prior to separation, she was seen in the psychology clinic.  The applicant stated she was a gunner in the lead vehicle of a convoy that was ambushed in Iraq, causing the death of a roommate that she provided combat lifesaving to in December 2004.  The note stated when she saw pictures of her deceased friend she remembered the event.  Unless she was busy, she had intrusive thoughts about the attack, especially when driving, bored or trying to sleep.  The note stated that she reported no MH treatment or evaluations until the attack.  Her symptoms had steadily increased since her return in February 2005.  The note stated she was receiving an MEB for LBP, which was under appeal.  She complained of feeling anxiety, chest pain or discomfort two times per week, 2-3/10 pain lasting 2 minutes (all medical tests negative).  She felt her heart race, felt shaky, nervous, and paranoid if people were behind her and flashbacks.  She had initial insomnia (getting two to three hours sleep, used to sleep 6 or 7 hours), went to bed at regular time and had no middle of the night awakening.  There was no reported shortness of breath, no dizziness, no tunnel vision, no muscle tension, no jitters and no depression.  In addition, there was no loss of interest in activities, no anhedonia (she had a desire to continue living), no previous suicide attempt, no violent behavior, no low self-esteem, not feeling guilty, not being upset by problems at home or work; no disturbing thoughts, feelings or sensations; and no interpersonal relationship problems.  Physical findings were: normal appearance, good judgment, normal speech, mood was unhappy, concerned and irritable at times.  Affect was broad and congruent with mood, behavior demonstrated no abnormalities and attitude was not abnormal.  There were no hallucinations, thought process was not impaired and thought content revealed no impairment, insight was intact and no suicidal ideation or homicidal ideations.  The final diagnosis was insomnia.  

She was referred to psychiatry from psychology on 20 July 2005.  The examining physician reviewed the medical records.  On this note, there is documentation of psychiatric therapy prior to deployment, when she was worried about being deployed.  The note indicated the CI reported recent onset of difficulty falling asleep.  She explained that she thought about being attacked while in Iraq during this time trying to fall asleep.  The examiner wrote that “however, this – in and of itself, did not appear to be the etiology of her difficulties.”  “Indeed, she denied any waking-state anxiety/dissociative pathology.”  The CI reported to the examiner she had experienced some recent situational stress pending a medical separation from service and the waiting for her boyfriend to be out of the Army before she moves along with her life.  The examiner opined that the uncertainties of this transition weighed upon her, perhaps to a greater extent than they would most people.  The CI was engaged with a psychologist for sleep hygiene and stress management.  MSE revealed a well-developed, well-nourished woman in no apparent distress, awake, alert, oriented, speech was fluent, eye contact was good, motor behavior was neither agitated nor retarded, mood was good, affect was broadly reactive, thought processes were logical, coherent and goal directed.  No suicidal ideation or intent reported.  Memory was grossly intact to clinical examination, insight was good and judgment was not impaired.  The final diagnosis was adjustment disorder and insomnia.

On a psychology follow-up on 21 July 2005, the CI reported the traumatic event she witnessed in Iraq continued to bother her.  Psychological symptoms noted were sleep disturbances.  She reported no anxiety, no depression, no loss of interest in activities, no anhedonia, no increased energy.  She had a desire to continue living, no previous suicide attempt, no violent behavior, no low self-esteem, not feeling guilty, not being upset by problems at home or work, no disturbing or unusual thoughts, feelings or sensations and no interpersonal relationship problems.  Physical findings were normal speech, sufficient nonverbal communication skills were demonstrated, mental status was normal, appearance was normal, behavior demonstrated no abnormalities, attitude was not abnormal, mood was euthymic, affect was normal, no hallucinations, thought processes were not impaired, thought content revealed no impairment, insight was intact, no suicidal ideations or homicidal ideations.  OQ45 testing that day was 58 (normal), previously 67 (clinical significance) on 5 July 2005.  She was diagnosed with delayed onset posttraumatic stress disorder (PTSD).  The psychologist examiner remarked the CI was experiencing more PTSD symptoms now than when the accident happened.

The VA C&P PTSD examination on 17 August 2005 (2 months prior to separation) found reported symptoms consistent with PTSD.  She had been experiencing sleep difficulties, nightmares, occasional flashbacks; avoidance of stimuli associated with traumatic event, increased arousal, hypervigilance, exaggerated startle response and she avoided crowds.  She reported no panic attacks, no obsessive or ritualistic behaviors.  MSE found the CI was casually groomed, speech was articulated, coherent and normal volume and tone.  Personal hygiene, behavior and appearance were appropriate.  Cognition was average, alert, oriented, affect was appropriate, thought process were logical and goal directed.  Her insight, judgment and impulse control were adequate.  She denied delusional thoughts, and past or current suicidal or homicidal thoughts.  Diagnosis was PTSD, chronic, mild.  Stressors were combat exposure and death of her best friend in the war and other social and psychological stressors.  Global Assessment of Functioning was 65-70 (mild symptoms).
The Board considered whether the MH conditions, regardless of specific diagnosis, were unfitting for continued military service.  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 commander’s statement on 12 May 2005 did not mention any limitations that could be contributed to an MH disorder.  The commander stated the CI was a hardworking soldier with a good attitude and desire to succeed.  The commander also stated the CI was physically incapable of performing her duties due to her back injury.  The physical profile was for mechanical LBP and had a permanent psychiatric level one (S1) designation.  The profile did not impose any limitations such as no weapons, no access to confidential or secret information, or must be stationed near or where definitive MH services are available or limitations on mentally stressful duties.  There was no evidence in the service record such as emergent psychiatric care, or prolonged psychiatric hospitalizations or prolonged absence from work due to MH symptoms.  All Board members agreed that the evidence of the record reflected minimal MH related symptoms and good duty performance (as related to mental functioning) in the period leading into the MEB.  The Board concluded that there was insufficient evidence that any MH symptom or condition rose to the level of being unfitting at the time of separation and therefore none were subject to a 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.  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 mechanical LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended MH conditions, the Board unanimously recommends a determination of not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130515, 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, AR20140014456 (PD201300470)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl