RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301068
BRANCH OF SERVICE:  Army	BOARD DATE:  20140417
SEPARATION DATE:  20091026

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (25U10/Signal Support Systems Specialist) medically separated for lumbosacral strain.  The CI injured his low back in May 2007 during permanent change of station transit.  His low back condition underwent conservative treatment and attempts at rehabilitation, including three epidural steroid injections.  With respect to the applicant’s mental health (MH) condition; in April 2008, he experienced a recurrence of an apparently underlying depressive condition, in the context of his chronic back pain, limited physical capacity and an uncertain occupational future.  He was command-referred to MH services for assessment and treatment.  He was engaged with group psychotherapy between April and June 2008, before disengaging from care when he felt better.  Due to the CI’s back condition, he eventually failed 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 MEB psychiatric narrative summary listed “adjustment disorder with mixed anxiety and depressed mood” as meeting retention standards.  The MEB forwarded “chronic low back pain secondary to multilevel degenerative disk disease” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded “adjustment disorder with mixed anxiety and depressed mood” along with four other conditions (listed in the chart below) as meeting retention standards.  The PEB adjudicated “lumbosacral strain” as unfitting, rated 10% with application of the VA Schedule for Rating Disabilities (VASRD).  The PEB found the CI’s adjustment disorder not compensable as it was “not deemed to constitute a physical disability although it may be administratively unsuiting IAW DoDI 1332.38, enclosure 5.”  The CI made no appeals and was medically separated.

CI’s CONTENTION:  Nothing was contended.

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 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 Service rating for the unfitting low back condition is addressed below. 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.  No other conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions outside the Board’s defined scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service  IPEB – Dated 20090804	VA – (at Separation)    	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain	5237	10%	Lumbar Spine Condition	5242	20%	20091028	
Adjustment Disorder	Non Compensable	Adjustment Disorder	9440	30%	20091015	
Acne Keloidalis	Not Unfitting	Acne	7828	0%	20091028	
Left Knee Pain	Not Unfitting	Left Knee Pain	5260-5019	10%	20091028	
Seasonal Allergies	Not Unfitting	No Corresponding VA Entry for Seasonal Allergies	
No Additional MEB/PEB Entries	Other x 14	20091028	
Combined:  10%	Combined:  80%	
	  VARD 20100121 (most proximate to date of separation)

ANALYSIS SUMMARY:

Low Back Pain (LBP) Condition.  This CI had onset of LBP in May 2007.  Subsequently, magnetic resonance imaging showed mild degenerative changes at multiple levels with no canal or foraminal compromise. He was treated with many different treatment methods including physical therapy, chiropractic manipulation and steroid injections.  However, his LBP persisted and a MEB was initiated.  The MEB physical exam (PE) of the back was in April 2009.  There was very slight tenderness to palpation, but no spasm.  The CI was able to heel and toe walk normally.  Straight leg raise was negative and neurological exam was normal.  Range-of-motion (ROM) was measured and is summarized in the chart below.  As noted above, the CI was medically separated from service on 26 October 2009 due to his unfitting LBP condition.

Two days later, on 28 October 2009, the CI had a VA Compensation and Pension (C&P) exam.  Posture and gait were normal and tandem gait was normal.  PE of the thoracolumbar spine revealed symmetry of spinal motion with normal curvature.  There was no tenderness, no spasm and no guarding.  Musculature was normal.  The two ROM evaluations which the Board weighed in arriving at its rating recommendation, are summarized in the chart below.
                  
Thoracolumbar ROM
(Degrees)	MEB ~ 6½ mos. Pre-Sep
(20090410)	VA C&P ~at Separation
(20091028)	
Flexion (90 Normal)	70	60	
Extension (30)	25	20	
R Lat Flexion (30)	30	15	
L Lat Flexion (30)	30	30	
R Rotation (30)	30	20	
L Rotation (30)	30	20	
Combined (240)	215	165	

The Board directs attention to its rating recommendation.  The Army PEB and the VA chose different coding and rating options for the LBP condition.  The PEB used diagnostic code 5237 (lumbosacral strain) and rated it 10%.  The VA used code 5242 (degenerative arthritis of the spine) and assigned a disability rating of 20%.  The Board noted the disparity between the back exams which are documented above.  At the October 2009 C&P exam, forward flexion was only 60 degrees.  However, there were some discrepancies and inconsistencies with that C&P exam, which caused the Board to question its validity and probative value.  For example, a limitation of thoracolumbar flexion to 60 degrees would almost certainly present difficulties with some activities such as sitting in a chair, riding in a car or climbing onto the examination table.  The record does not indicate that the CI had any of these difficulties.  In fact, the record states that he was able to take a shower, vacuum, drive a car, cook, climb stairs, dress himself, take out the trash, walk, shop, perform gardening activities and push a lawn mower.  The Board determined that the inconsistencies in the October 2009 C&P exam caused diminution in its validity and probative value.

The Board then turned to the April 2009 MEB exam.  At that evaluation, the CI had forward flexion of 70 degrees and combined thoracolumbar ROM of 215 degrees.  IAW the VASRD §4.71a, a 10% rating is warranted when forward thoracolumbar flexion is greater than 60 degrees, but not greater than 85 degrees.  A 10% rating is also warranted when combined thoracolumbar ROM is greater than 120 degrees, but not greater than 235 degrees.  After a thorough review of the evidence, the Board determined that a disability rating of 10% was appropriate.  The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling spine condition which would justify a rating higher than 10%.  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 of the LBP condition.

Adjustment Disorder with Mixed Anxiety and Depressed Mood.  The CI struggled with depression during his teen years.  He made a suicide attempt by overdose, but survived and did not seek medical attention.  He did not perform well in high school and was disenrolled from school in 1992.  For 10 years he worked at various hourly wage jobs.  He joined the Navy in 2002 and transferred to the Army 4 years later.  In April 2008, the CI had a recurrence of his underlying depressive condition in the context of chronic back pain, limited physical capacity, and an uncertain occupational future.  He was command-referred to MH services where he engaged with group psychotherapy between April and June 2008, before disengaging from care when he felt better.

On 14 April 2009 during the MEB process, he was evaluated by a physician’s assistant and was referred to psychiatry.  He was seen by a social worker on 21 April 2009 and the clinical note was co-signed by a physician, but no MH diagnosis was given.  Then on 11 May 2009, he was seen by an Army psychiatrist.  On mental status exam (MSE) the CI was alert, oriented, clean, well-groomed, calm, cooperative and interactive.  Speech was normal to rate, prosody, tone and volume.  Eye contact was appropriate.  Affect was euthymic and mood-congruent, with broad range and reactivity.  Thought processes were linear, logical, goal-directed and organized.  The CI denied suicidal ideation or homicidal ideation.  There were no hallucinations, delusions or other psychotic features.  Judgment was good and insight was broad.  The Axis I diagnosis was adjustment disorder with mixed anxiety and depressed mood.  The examiner stated: “depressive condition appears to be in full remission.  From a psychiatric perspective, he is fit for full, unrestricted military duty.”

On 15 October 2009, the CI was evaluated by a civilian psychologist for his VA C&P MH exam.  He reported increased irritability, social isolation and worries about finding a job.  He indicated that the symptoms affected his total daily functioning.  He was not receiving any treatment for his MH problem.  On MSE, the CI’s orientation, appearance, hygiene, behavior and eye contact were all normal.  Affect and mood showed some anxiety and depression, but this did not affect his ability to function independently.  Communication, speech and concentration were all normal.  There was no evidence of suspiciousness, panic attacks, delusions or hallucinations.  Thought processes were appropriate and judgment was not impaired.  The CI reported a history of suicidal thoughts in the past, but there was no suicidal ideation present at the time of the October 2009 MSE.  The examiner’s Axis I diagnosis was adjustment disorder with mixed anxiety and depressed mood.  The Global Assessment of Functioning score was 55.

Once again the Board carefully examined all available evidence.  While there was mention of a possible diagnosis of posttraumatic stress disorder in the CI’s records, it did not appear that that diagnosis was validated or that the CI’s MH diagnosis was changed to his possible disadvantage during the DES process.  The Board therefore concluded this case did not meet the inclusion criteria in the Terms of Reference for the MH Review Project.  The Board then considered the appropriateness of the PEB determination.  The adjustment disorder condition did not constitute a physical disability although it was administratively unsuiting.  The Board agreed that the Army PEB was correct in that conclusion IAW DoDI 1332.38.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board could not find sufficient cause to justify a change in the PEB adjudication of the MH condition.  The Board concluded therefore that the MH condition could not be recommended 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.  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 MH condition, the Board unanimously recommends no change from the PEB determination that it did not constitute a physical disability and was not compensable.  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 20130628, 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, AR20140015237 (PD201301068)

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