RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01040
BRANCH OF SERVICE:  Army	BOARD DATE:  20141104
SEPARATION DATE:  20081106

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (35L/Counterintelligence Agent) medically separated for chronic low back pain (LBP).  The CI’s low back condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  She was issued a permanent L3/S1 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “chronic LBP medically unacceptable” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded “chronic right shoulder pain, medically acceptable” for PEB consideration.  The Informal PEB adjudicated “chronic LBP” as unfitting, rated at 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have lived with daily back pain since I was injured back in 2004.  From 2004 up to the time I was found unfit for duty in 2008 I went through pain management, physical therapy, various medications, etc. to no avail.  I had and still have daily back pain, however; I have weekly flareups where the L-4 and L-5 disc bulge puts pressure on my sciatic nerve which leads to severe shooting pains down my left buttock and into my left leg.  My right knee already has issues and this has caused me to put more pressure on my right leg creating joint pain from overcompensation.  Every once in a while at its worst, I get to the point where I cannot bend or even dress myself without crippling pain and must take off work.  I have been to orthopedic surgeons and was told I was not a candidate for surgery until I start showing neurological symptoms.  I had recent MRIs and a nerve conduction test showing that my condition has not improved and gotten worse in some areas.  I have nerve damage and loss of feeling in parts of my legs as a result of my back injury affecting my nerves.  Essentially, I have been told that pain management is my only option.  This issue, on several occasions, has gotten me sent home from work by my supervisor for my inability to preform due to pain.  I cannot take anything stronger than Aleve at work, but it only helps with the small flareups.  My supervisor provided me with a special chair that puts me in a kneeling position helping with my posture so that I can sit more than 30 minutes without extreme discomfort.  This has assisted in helping me get through my work day better. I feel that I was not fairly evaluated for my medical separation board.  The doctor who examined me and wrote the findings for the board used someone else's paperwork for his outline.  Several times throughout the document the doctor refers to me as a HE instead of SHE and ignored and ignored me when I had questions.  The doctor spent most of my appointment on the phone with an assumed family members and rushed through my examination as if he had somewhere to be.  I had very little confidence in his examination and felt as if I wasn't taken seriously.”

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 her case may eligible for review of the military disability evaluation of mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of 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 rating for the unfitting chronic low back condition is addressed below.  The contended neuropathy associated with the CI’s back condition, will also be reviewed by the Board as a matter of VASRD rating convention.  In addition, in accordance with Secretary of Defense directive for a comprehensive review of the MH diagnoses that were changed during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination and rating of unfitting MH diagnoses in accordance with the VASRD §4.129 and §4.130.  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 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, operating under a different set of laws.  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 her neuropathic condition as related to her LBP and implied MH condition and, emphasizes that the 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.  The Board further acknowledges the CI’s assertions that her disability disposition was based on a medical examination that may have been rushed, incomplete and unfair.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the Board for the Correction of Military Records (BCMR) and/or the United States judiciary system.  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 BCMR.

RATING COMPARISON:

Service IPEB – Dated 20080801	VA - (1 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Low Back Pain L4-L5 Disk Bulge	5237	20%	20081122	
Other x 1 (Not in Scope)	Combined:  30%	
Combined:  10%		
Derived from VA Rating Decision (VARD) dated 20090327 (most proximate to date of separation)
VARD 20101229 awarded service connection for posttraumatic stress disorder (PTSD) with depression rated 30% effective 20081104

ANALYSIS SUMMARY:

Chronic Low Back Condition.  Review of the service treatment record (STR) revealed the onset of LBP in 2004 after performing heavy lifting.  Although the STR was silent regarding back pain until August 2007 when she was diagnosed with an acute lumbar strain, the narrative summary (NARSUM) reported that symptoms were exacerbated after a motor vehicle accident in November 2004 and were present during her deployment to Afghanistan in 2005.  In August 2007 she experienced the sudden onset of sharp severe LBP while packing.  Ongoing pain did not respond sufficiently to medications, chiropractic care or physical therapy.  Magnetic resonance imaging showed L4-L5 and L5-S1 disc bulging.

At the NARSUM performed on 27 June 2008 (4 months prior to separation), the CI reported constant LBP of 3/10 in severity during the day, but less at night.  Pain radiated at times to the back of both hips.  Although it did not radiate to the lower extremities, her toes were sometimes numb.  Back pain occurred after wearing a ruck for 20 minutes but she could walk or cycle for fitness testing.  She avoided pain medication, though would use Tylenol or Ibuprofen.  She lost about 5 days of work and left work early 5-6 times during the past year because of back pain.  Examination revealed normal alignment of the spine.  Painful motion at end range-of-motion (ROM) was present in all planes.  Muscle spasm was not mentioned, but tenderness was absent.  She could walk on the heels and balls of both feet and squat three-quarters of the way and rise without difficulty.  Lower extremity muscle strength and sensation was normal.

At a VA MH exam on 14 November 2008 (2 weeks after separation), “posture and psychomotor movements were abnormal because of chronic back pain.”  At the VA Compensation and Pension (C&P) exam performed a month after separation, the CI reported constant pain that radiated to both legs.  Physical examination noted a normal gait and station and no lumbar spine tenderness.  There was no mention of spinal contour, muscle spasm or painful motion.  Muscle strength and sensory function were normal.  She could squat three-quarters of the way and rise without difficulty.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~11 Mos. Pre-Sep	MEB ~4 Mos. Pre-Sep	VA C&P ~1 Mo. Post-Sep	
Flexion (90 Normal)	Full Active ROM	70**	45	
Extension (30)		25	Not measured	
R Lat Flexion (30)		30	20	
L Lat Flexion (30)		30	20	
R Rotation (30)		30 (40)	30 (35)	
L Rotation (30)		30 (40)	30 (35)	
Combined (240)	N/A	215	N/A	
Comment	End range pain on flexion	+Painful motion		
§4.71a Rating	10%*	10%	20%	
           *For painful motion, VASRD §4.59
           **75 degrees prior to three repetitions

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5237 code (lumbosacral strain), while the VA rated the condition 20%, also coded 5237.  The Board agreed that the respective ratings by the PEB and the VA were appropriate based on the available ROM data (10% for flexion greater than 60 degrees but not greater than 85 degrees; and 20% for flexion greater than 30 degrees but not greater than 60 degrees).  In assigning probative value to these somewhat conflicting examinations, the Board noted that: (1) The MEB measurements were consistent with corroborating evidence (for example gross ROM observation in chiropractic notes applied the descriptor “full”); (2) the MEB measurements were more consistent with the other collateral physical findings; (3) there was not a reasonable accounting for progressively impaired ROM in the 5-month interval between the examinations and, (4) the probative value of the VA evaluation was judged to be compromised by no mention of painful motion or muscle spasm, which would be expected with that degree of limitation of motion and by the absence of measured extension.  Therefore, based on all evidence and associated conclusions as elaborated, members agreed that preponderant probative value should be assigned to the MEB evaluation.  That examination, as previously stated, supported a 10% rating.  There was no evidence of muscle spasm or guarding severe enough to result in abnormal gait or spinal contour; thus, the next higher 20% rating was not warranted on this basis.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the 10% criteria under that formula.  The Board finally deliberated if additional disability was justified for peripheral nerve impairment.  The CI complained of pain radiating to both legs and occasional numbness in the toes.  However, there were no complaints of muscle problems and muscle strength was normal.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI experienced some radiating pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  The Board therefore concluded that additional disability was not justified on this basis.  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.

Mental Health Review.  The CI presented for a 90-day post-deployment examination in June 2006 and reported she was taking medication for depression.  A post-deployment form (DD Form 2900) was referenced but was not in evidence.  A diagnosis of dysthymic disorder (depressive neurosis) was rendered.  The STR was silent regarding further mental health issues until the MEB processing.

The NCO evaluation report on 22 March 2008 (8 months prior to separation) noted no areas that needed improvement.  The “Overall Performance and Potential” was marked “Among the Best” and “Superior.”  On the DD Form 2697 (Report of Medical Assessment) on 3 July 2008 (4 months prior to separation) the CI reported that only her back and shoulder conditions limited her ability to work in her specialty.

On the MEB history and physical DD Form 2807, dated 8 July 2008, the CI indicated she had “anxiety disorder, a few panic attacks … treated for insomnia and night terrors.”  The examiner noted that she had received counseling for depression weekly since November 2007, displayed no suicidal or homicidal ideation and was stable on an anti-depressant and a medication for anxiety as needed.  The profiling section of the DD Form 2808 listed a diagnosis of major depression with anxiety and panic attacks and assigned an S1 profile. The examiner was silent about the criteria in support of a MH diagnosis.

At the C&P mental examination on 14 November 2008 (11 days after separation), CI reported she was exposed to combat stressors that included helping with body bags and caskets, attended the funerals and the “angel’s flight,” a farewell conducted on the tarmac.  She would become depressed, tearful, and felt overwhelmed.  She endorsed symptoms of PTSD for which she was being treated with two psychotropic medications and psychosocial support.  She worked for the Coast Guard as a civilian and enjoyed performing administrative type of work.  She had not lost any time from work.  Diagnoses of PTSD and major depression were rendered with a Global Assessment of Function of 55 (moderate symptoms or impairment).

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the DES.  The evidence of the available records showed a diagnosis of major depression was rendered during the DES process (DD Form 2808).  The major depression diagnosis was not forwarded by the MEB or adjudicated by the PEB; therefore the Board determined that this applicant did appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The Board next considered whether any mental condition, regardless of diagnosis, was unfitting for continued military service.  The Board’s threshold for recommending a not-unfit determination requires a preponderance of evidence.  All Board members agreed that evidence of the record reflected minimal occupational impairment on the basis of the MH related symptoms.  The commander’s statement did not implicate a MH condition as a cause of duty impairment.  At no time during the applicant’s military service did she require a psychiatric hospitalization or emergency care.  No MH condition was permanently profiled or was judged to fail retention standards; and the NCO evaluation reflected superior potential.  There was no indication from the record that any MH condition significantly interfered with satisfactory duty performance.  The Board therefore concluded that there was insufficient evidence that any MH condition rose to the level of being unfitting at the time of separation.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a determination of unfit for any MH condition; and therefore, no disability rating can be 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 LBP condition and IAW VASRD §4.71a, the Board recommends no change in the PEB adjudication.  In the matter of any contended MH condition, the Board unanimously recommends no 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130530, 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 XXXXXXXXXXXXXX, AR20150006408 (PD201301040)

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