RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD1301001
BRANCH OF SERVICE: Army	BOARD DATE:  20140507
SEPARATION DATE:  20061130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SSG/E-6 (91W/Medic) medically separated for a lumbar condition.  He injured his back in 2005 during a deployment to Kuwait, and was diagnosed with non-surgical degenerative disc disease (DDD).  The 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).  The lumbar spine condition, characterized as “low back pain with degenerative disc disease (DDD) and herniated nucleus pulposus [herniated disc]” was forwarded as the sole condition, to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic low back pain secondary to multilevel DDD and herniated nucleus pulposus L5-S1” as unfitting, rated 0% citing criteria of the U.S. Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  The application states simply “PTSD [post-traumatic stress disorder], lower-back pain” without further elaboration.

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 20061107	VA - (3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain … DDD L5-S1	5237	0%	DDD … L5-S1	5242	20%	20070222	
No Additional MEB/PEB Entries	Adjustment Disorder … Mixed*	9440	30%	20070222	
Combined:  0%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20070327 (most proximate to date of separation [DOS]).
* Per VARD of 20090520 the diagnosis was changed to PTSD, 9411 rated 50%, effective 20081024 (2 years post-separation).

ANALYSIS SUMMARY:

Lumbar Spine Condition.  The service treatment record (STR) reflects a history of previous episodes of back pain in 1999 and again in 2000, both incurred during training; but, an annual medical exam of August 2005 (shortly before the Kuwait deployment) notes no back pain.  The STR documents that the CI injured his back in a HumVee incident in October 2005 during stateside pre-deployment training, although the narrative summary (NARSUM) locates that incident in Kuwait.  The CI recovered sufficiently to deploy; re-injured his back (slipped on a rock) soon after arrival; was medically evacuated; recovered sufficiently to return to Kuwait; but, in March 2006 was again evacuated for back pain.  There was significant bilateral radicular pain and imaging diagnosed DDD with disc herniation at L5 - S1.  There were no abnormal neurological findings, with bilateral 5/5 strength, confirmed by several STR entries and, a neurosurgical consultant did not recommend surgery.  The CI responded favorably to a trial of epidural steroid injections and the last orthopedic entry prior to PEB proceedings (12 June 2006, 5 months pre-separation) stated that he “is much better … still with pain when sitting/lifting.”  That exam documented grossly normal range-of-motion (ROM), albeit with pain on flexion and extension.  A physical therapy (PT) entry a month later, however, documented flexion limited to 30 degrees (normal 90 degrees) and, the MEB physical exam a month after that (3 months pre-separation) noted “limited” ROM and antalgic gait.  An earlier entry of April 2006 (7 months pre-separation) documented flexion “20%” (unclear if % reduction or % normal) but, no other STR entries documented grossly decreased ROM or abnormal gait (one specifying normal gait and another normal ROM).

The NARSUM (2 months pre-separation) documented “some improvement in his low back pain and almost complete resolution of his radiculopathy,” with pain rated “slight and frequent;” and, noted only general soldiering type limitations.  The physical exam noted a normal gait, the absence of tenderness or spasm and normal neurological findings with 5/5 strength.  The NARSUM ROM measurements were flexion 70 degrees and combined ROM of 180 degrees (normal 240 degrees).  At the VA Compensation and Pension (C&P) evaluation (3 months post-separation), the examiner noted “pretty much constant back pain [severity not characterized], which is aggravated by sudden movements, by bending, stooping, lifting, or twisting.”  At this time the CI reported bi-radicular radiation (left > right), stating that previous sensory symptoms had resolved.  The VA physical exam documented a normal gait, mild tenderness with no comment on spasm and “pain with bending in any direction.”  The neurological exam noted “slightly decreased” sensation on the left and an absent right ankle reflex and did not comment on motor strength.  Forward flexion was recorded as “to about 60 degrees”, with a combined ROM of 190 degrees.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating was supported by the USAPDA pain policy, but was not consistent with VASRD §4.71a criteria for the ROMs under consideration.  A flexion of 70 degrees as documented in the NARSUM supports a 10% rating IAW the §4.71a spine formula.  The 60 degrees flexion from the C&P evaluation meets the §4.71a threshold for a 20% rating, which was the basis for the VA determination.  It should be noted that antalgic gait is itself a criterion for a 20% rating, but the great preponderance of evidence in this case would not support its application.  Members carefully considered the probative value of the MEB and VA examinations, with their obvious rating implications, in the context of the total evidence.

Although there was one corroboratory ROM evaluation from the STR evidence which favors the higher rating, i.e., the MEB PT flexion of 30 degrees (which would in fact support a 40% rating), that evidence is distinctly disparate from the measurements and observations offered by all other examiners; and, the earlier entry noting flexion of “20%” is too nebulous for significant consideration.  It is considered that there was an established trend of improvement in the clinical course, with grossly normal ROM documented near the end of that course and, that the fairly modest ROM reduction evidenced in the NARSUM represents a reasonable indicator of expected day-to-day variance in the pain affecting spinal mobility.  It was of additional concern that the imprecise language used by the VA examiner in describing the measurement of flexion (noting that 60 degrees is the cusp of the higher rating) must be considered somewhat of a probative value detractor with regard to VASRD §4.46 (accurate measurement).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the lumbar spine condition; preferring code 5242 (degenerative arthritis of the spine) for its clinical compatibility.

The Board additionally considered whether separate rating could be recommended under a peripheral nerve code (or codes) for the residual bilateral radiculopathy present at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to 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 no motor weakness was in evidence.  It is further noted that no ratable neuropathy was judged to be present by the VA.  There is thus no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathies; and, the Board cannot support a recommendation for an additional disability rating on this basis.

Contended PTSD Condition.  An STR entry from 1992 documents an MH referral for symptoms of depression during basic training, which preceded an early separation in 1992 for domestic issues and which was followed by re-enlistment in 1994.  There are no further documented MH issues until redeployment from Kuwait.  There are sparse MH entries from the 2006 return from deployment and separation, but it is apparent that the CI was treated for anxiety and there are passing references to PTSD.  There is no Axis I diagnosis of PTSD or any specific elaboration of diagnostic criteria for PTSD in the STR; nor is there a formal specified diagnosis of any MH condition.  There is no STR evidence of suicidal ideation or attempts, serious disciplinary or legal issues, alcohol/substance abuse or psychiatric crisis/hospitalization.  There is an unelaborated entry of PTSD in the diagnostic summary on the MEB’s DD Form 2808 report of medical examination.  The NARSUM makes no note of MH symptoms or diagnosis, although medications list an antidepressant (Remeron).  As noted above, no MH condition was forwarded for PEB adjudication on the MEB’s DD Form 3947.  The commander’s statement documented only the lumbar condition and attendant physical limitations to duty performance.  The profile was designated suicidal ideation throughout service.  The post-separation VA psychiatric C&P did not document severe MH symptoms or significant mental status changes, and did not include endorsement of symptoms meeting diagnostic criteria for PTSD.

The Board directs attention to its rating recommendation based on the above evidence; and, its first assessment with regard to the MH condition, under guidelines of the MH Review Project, is to judge (based on a preponderance of evidence) whether a diagnosis was changed to the disadvantage of the applicant or whether a diagnosis of PTSD was changed or unfairly eliminated.  The evidence in this case indicates that there was a working diagnosis of anxiety with treatment for same, and such evidence was included in documents before the PEB; but, there is no evidence for a diagnosis of PTSD (or symptoms consistent with that diagnosis) during service.  This case does not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

Although preferably the MH issue would have been addressed directly by the MEB (ideally by MEB psychiatric consultation and addendum to the NARSUM) and forwarded to the PEB, there is no evidence that the acuity was such that it was not a reasonable judgment call on the part of the MEB physician to not do so.  Members agreed that there was insufficient evidence in support of a recommendation for adding PTSD as a service diagnosis.  It should also be noted that the initial VA diagnosis of adjustment disorder (actually the only formal Axis I psychiatric diagnosis in evidence) does not constitute a service ratable condition IAW DoDI 1332.38 (E5.1.3.9.4.), a guidance also applicable to Board recommendations.  It was furthermore agreed that even if another service diagnosis (anxiety or depression) was conceded for consideration, there would be insufficient evidence for recommending it as unfitting and eligible for service rating, noting the S1 profile, the lack of indication by the commander that there were MH limitations on performance and the lack of any performance-based evidence in the service record suggesting that such limitations existed.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend the addition of any MH diagnosis for 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 lumbar condition was operant in this case, and it was adjudicated independently of that guidance by the Board.  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 10%, coded 5242, IAW VASRD §4.71a.  In the matter of the contended PTSD, the Board unanimously agrees that it cannot recommend it or any other ratable mental health condition 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	
Degenerative Disc Disease, Lumbar Spine	5242	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130705, 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, AR20140014490 (PD201301001)

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 10% 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						    

CF: 
(  ) DoD PDBR
(  ) DVA