RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300546
BRANCH OF SERVICE:  Army	BOARD DATE:  20140730
SEPARATION DATE:  20091217

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88M/Motor Transport Operator) medically separated for chronic low back pain (LBP) evaluated as spondylolisthesis.  The back 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 L3S1 profile and referred for a Medical Evaluation Board (MEB).  Chronic LBP was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded anxiety disorder (meets retention standards).  The Informal PEB adjudicated “chronic low back pain evaluated as Spondylolisthesis” as unfitting, rated 20%, with application of the VA Schedule for Rating Disabilities (VASRD).  The remaining condition, anxiety disorder was determined to be not unfitting and therefore not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I still have ongoing treatment from Dr. X--- @ KU Medical Center.  They want to do surgery and I have more problems now performing everyday duties.  I have muscle spasms daily and fall because by legs give out at least 1 time per month.  I currently take muscle relaxers and MRI  show bulging disk in lower back and 3 bulging disk in neck that are thought to be caused by accident.  My depression has also gotten worse and have major depression.” [sic]

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 20091006	VA - (3.5 and 4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain Evaluated as Spondylolisthesis	5239	20%	Spondylolisthesis	5239	10%	20100409	
Anxiety Disorder	Not Unfitting	Adjustment Disorder with Anxiety and Depressed Mood	9400-9440	70%	20100331	
Other x 0 (Not in Scope)	Other x 5	20100409	
Rating:  20%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20100527 (most proximate to date of separation [DOS]).
ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; but, must emphasize that the Military 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.

Chronic Low Back Pain Evaluated as Spondylolisthesis.  At the MEB exam, the CI reported onset of back pain after a motor vehicle accident in July 2008.  Conservative therapy including physical therapy, chiropractic, acupuncture, narcotic pain medication and epidural steroid injection did not alleviate the pain condition.  Pain was noted to sometimes radiate into the left leg above the knee level.  MRI noted lumbar spondylolysis and spondylolisthesis with degenerative disk disease.  The MEB physical exam noted no tenderness, negative straight leg testing, normal neurologic exam with normal heel and toe walking.  Range-of-motion (ROM) testing documented forward flexion to 35 degrees (normal 90 degrees) and combined ROM of 165 degrees (normal 240 degrees).  The examiner stated the CI “appeared to demonstrate further range of motion than measured when doing routine activities such as getting on and off the examination table.”  At the VA Compensation and Pension (C&P) exam performed almost 4 months after separation, the CI reported continued back pain increased with activity.  Exam documented normal gait with no motor or neurologic deficits.  ROM was forward flexion of 85 degrees and combined ROM of 230 degrees (normal 240 degrees) with painful motion.

The Board directs attention to its rating recommendation based on the above evidence.  The narrative summary (NARSUM) documented forward flexion of 35 degrees met the VASRD 20% rating criteria for “forward flexion of the thoracolumbar spine greater than 30⁰ but not greater than 60⁰.”  Pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease is included under the general spine formula rating.  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 LBP condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that anxiety disorder (or any MH disorder) 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 NARSUM indicated a pre-service history of anxiety with pharmacotherapy that was self-discontinued prior to service entry.  The CI indicated recurrence of anxiety in 2008 with history that she “sometimes becomes anxious while out in public and would have an anxiety attack.”  She was started on medication (Celexa) which seemed to help, but indicated other prior medications were more helpful.  Treatment notes indicated depression as a diagnosis in 2007 with adjustment disorder indicated in 2008.  Subsequent evaluations with treatment changed the diagnosis to anxiety disorder which was the diagnosis listed on the MEB and PEB.  Diagnoses also included methamphetamine dependence sustained in full remission, cannabis-related disorder sustained in full remission and personality disorder with paranoid and borderline features.  Treatment notes during the DES also indicated depression as a diagnosis.  [Of note, Military Entrance Processing Station entry physical dated June 2007 denied “nervous trouble of any sort (anxiety or panic attacks), prior drug or alcohol abuse, or prior hospitalizations.]  The DD Form 2808 listed “Anxiety/depression” under summary of defects and diagnoses and indicated an S1 profile.

The commander’s statement did not specify any MH condition or impairments, but in Section IIIB checked blocks 3A/B/C/D (performance issues are due to needs more time for each task; performs duties/tasks with errors or incompletely; does not complete the duties/tasks; unable to complete 8 hour duty day); 4 C/D (Intermittent periods where (CI) unable to perform occupational tasks; occasional difficulties with reduced reliability and productivity); and 5B (difficulty establishing and/or maintaining effective work relationships with supervisors and/or co-workers).  The only text entry pertaining to any MH condition was “always complaining” written-in under 5B above.

At the VA C&P exam performed almost 4 months after separation, the diagnosis was adjustment disorder with anxiety and depressed mood with Cannabis dependence.  The CI reported multiple pre-service psychiatric hospitalizations and “stopping all psychiatric medications about three weeks prior to entry in the Army.”  Symptoms included anxiety with monthly panic attacks, sleep disturbance and depression.  Marital separation of 3 months and current Cannabis use was documented.  The Global Assessment of Functioning score was 50 (serious symptoms).  The VA indicated the condition had been aggravated by military service and rated the MH condition at 70%.

All MH symptoms and diagnoses were reviewed by the action officer and considered by the Board.  This case does not meet the inclusion criteria in the Terms of Reference of the MH Diagnosis Review Project.  There was not a preponderance of the evidence to change or add any MH diagnosis.  The anxiety disorder condition was not profiled and was not judged to fail retention standards.  There was scant performance based evidence from the record that any MH condition significantly interfered with satisfactory duty performance.  There was clear post-separation worsening noted in the post-separation VA exam.  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 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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended anxiety (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, 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, AR20140016135 (PD201300546)

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						     

CF: 
(  ) DoD PDBR
(  ) DVA