RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301073
BRANCH OF SERVICE:  Army	BOARD DATE:  20140612
SEPARATION DATE:  20070415

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized Reserve SGT/E-5 (88N/Traffic Management Coordinator) medically separated for chronic low back pain (LBP).  The LBP 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/H2/S2 profile and referred for a Medical Evaluation Board (MEB).  The LBP condition, characterized as “lumbosacral radiculopathy s/p surgical augmentation,” “chronic low back pain,” and “lumbago,” “paresthesia, LLE [lower left extremity],” “lumbar strain,” and “herniated nucleus pulposus (HNP) of sacral spine s/p surgical repair” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions for PEB adjudication.  The PEB adjudicated “chronic low back pain….L5/S1 discectomy” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be medically acceptable and were determined to be not unfitting, therefore not ratable.  The CI made no appeals and was medically separated with a 10% disability rating.  An Administrative Correction was completed by the PEB to correct administrative information which had no effect on the findings and recommendations.

CI CONTENTION:  The CI listed: “1. Lumbosacral radiculopathy of right lower extremity not rated, yet noted as not medically retainable. Requires the use of foot drop brace, wheel chair, walker and cane for mobility.  Must take 105 mg of morphine per day plus other medications, after other treatments have failed.  Is finally being scheduled for spinal cord stimulator, after device was initially recommended while still in service.  Cannot work due to injuries and constant pain level between 7-10, avg. 8.   2. Lumbar disc disease was not properly rated, initially rated as a lumbar strain by VA, despite having surgery (microdiscectomy) and medical record documentation to this fact.  Surgery did not correct the problem and was later descried as a "bandaid" measure, meant to give an additional five years before another surgery. Numbness, pain, and lack of use was still present after the 2005 surgery while still in service and continues to this day.  3. General Anxiety Disorder and Avoidant Personality Traits, which came about as a result of service in OIF - as evidenced by DD Form 2795 - executed 2004/12/01, were never rated.  I am still waiting for a VA rating on both of these.  Currently seeking treatment through VA Mental Health, as I did after returning from OIF.  Both the GAD and APT, same symptoms as PTSD, affect my daily life as in when I will go out in public, a need to avoid all crowds, do not like being touched, must have an exit at all times, etc.”

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:

PEB Admin Corr – Dated 20070316	VA - (3.5 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP …L5/S1 Discectomy	5243	10%	Chronic LBP s/p Surgeries of the Lumbar Region	5243	10%	20070731	
Lumbar Strain	Not Unfitting					
HNP of Sacral Spine s/p Surgical Repair	Not Unfitting					
Paresthesia LLE	Not Unfitting	No VA Entry				
GAD	Not Unfitting	PTSD (post traumatic stress disorder)	9411	NSC	20070731	
Avoidant Personality Traits	Not Unfitting					
Other x 1  (Not is Scope)	Other x 0		
Rating:  10%	Rating:  10%	
Derived from VA Rating Decision (VARD) dated 20080201 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System 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.  The Board considers VA 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.

Low Back Pain…L5/S1 Discectomy.  The CI had a back injury at his civilian job and underwent surgery at L5/S1 on 25 June 2000.  At an annual examination for the reserves on 13 June 2002, almost 2 years after the surgery, he was noted to have lumbar range-of-motion (ROM) limited in all planes with flexion specifically noted as 40 degrees.  He was tender over the paravertebral muscles.  Dorsiflexion of the right foot was decreased and there was also decreased sensation in the L5 dermatome, also of the right foot.  Testing for radicular irritation was positive on the right; reflexes were noted to be normal.  He was subsequently activated on 26 November 2004 and deployed on 7 January 2005.  No intervening records are in evidence.  He apparently did well until he reinjured his back on a ruck march and obstacle course on 27 May 2005.  Conservative management was unsuccessful and a magnetic resonance imaging (MRI) revealed a recurrent HNP at L4-5.  He was evacuated back to his home station.  There, he underwent surgery for an HNP at L5/S1 on the right on 26 July 2005.  A post-operative MRI on 10 November 2005 showed scar tissue about the right S1 nerve root and persistent herniation of the disc.  The examiner commented that this examination was similar to the 9 January 2001 examination, which was after the first surgery, but prior to both activation and the second procedure.  Post-operatively, the CI was treated with medications and underwent rehabilitation.  Despite this, he had persistent pain and weakness.  At the initial VA Compensation and Pension (C&P) examination performed on 23 May 2006, 11 months prior to separation and within 10 months of the second surgery, the CI reported continued LBP with radiation in the right hip and thigh.  He was not able to drive for extended periods or play with his children.  Atrophy of the paraspinal muscles was noted, but there was normal tone of the leg muscles without atrophy.  The back was too painful for ROM to be measured.  The right leg was weak compared to the left.  He limped and favored the right side.  Reflexes were normal.  The note does not address if he had recently aggravated his back or was simply having a bad day.  A pain management note on 20 July 2006, almost a year after the second surgery, was notable for a normal gait and station, motor function without atrophy, sensation and reflexes.  A provocative maneuver for radicular irritation remained positive on the right side.  Two months later, he was seen in physical medicine and rehabilitation on 22 September 2006.  On examination, he was unable to dorsiflex his right foot (this had been previously recorded prior to activation).  Knee and ankle reflexes were noted as normal.  The tone of the right hamstring muscle was reduced.  One of the calf muscles on the right appeared to be atrophied, but measurement of the calves showed equal circumference.  Electrodiagnostic testing revealed a right L5>L4 motor radiculopathy.  Complete recovery was not expected.  He was subsequently entered into the MEB process.  The commander’s statement was dated 18 October 2006.  He noted that the CI was a top-notch soldier.  While he had discomfort, at times, from his back condition, it did not seem to limit his duty performance until his condition worsened while deployed and limited most aspects of his job.  The narrative summary (NARSUM) was dated 20 November 2006.  The CI lived in a 2-story house and reported no problems with this.  It was noted that he had not reached maximal medical improvement, but that a trial of military duties was unsuccessful.  The back pain and radiculopathy were both noted to be EPTS (existed prior to service) condition, but service-aggravated and to not meet retention standards.  The MEB examination on 24 July 2006 was referenced, but not in evidence.  At the MEB examination on 10 January 2007, the CI reported ongoing LBP.  The examiner noted that a provocative test for radicular irritation was positive.  A second C&P examination was performed on 31 July 2007 and focused on the back.  He reported that not much had changed since the previous examination.  However, he was employed as a tractor trailer driver.  He could walk ¼ mile and limited lifting to 10-15 pounds.  He had not lost any work days since separation.  His gait was normal and without use of an assistive device.  No atrophy was noted including the paraspinal muscles.  The ROM was painful and documented below.  Neither weakness nor spasm was noted.  The sensory and reflex examinations were normal.  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 ~7 Mo. Pre-Sep	PT ~3 Mo. Pre-Sep	VA C&P ~ 3.5 Mo. Post-Sep	
Flexion (90 Normal)	50	30	85	
Combined (240)	155	140	215	
Comment	No problems with a two story house	Civilian physical therapist; these were measured with an inclinometer from the T12/L1 level and excluded the lumbar ROM contribution	No weakness, spasm and no radiation of pain into legs	
§4.71a Rating	20%	---%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10% using the code for intervertebral disc syndrome, 5243.  It noted that the condition was EPTS, but service-aggravated and the EPTS contribution “undeterminable.”  The VA also rated the back at 10% using the same code.  The Board noted that the MEB measurements would support a 20% contribution.  However, the 2002 examination which was 2 years after the initial surgery also showed a limitation in flexion consistent with the MEB measurements implying no significant change in status.  In addition, an MRI performed after the second surgery showed little interval change from once done within a year of the first surgical procedure.  Nonetheless, there was clearly a change in functional status as the CI had been able to meet duty requirements prior to re-injuring his back and the PEB conceded service aggravation.  The VA examination was closer to separation and more remote from the second surgery by almost a year.  It was therefore assigned a higher probative value than the MEB examination.  It supports the 10% rating assigned by both the VA and PEB.  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.  The Board also considered if an unfitting radiculopathy was present at separation.  As noted, the more probative VA C&P examination, there was no weakness, sensory deficit, or diminished reflexes present.  While weakness had been previously recorded, it was also present prior to activation as documented on the 2002 examination.  He was working as a truck driver and had a normal gait.  The evidence does not support an unfitting radiculopathy at separation and so no additional disability rating is warranted.

Contended PEB Conditions.  The CI also contended for the GAD and avoidant personality traits.  The Board’s main charge is to assess the fairness of the PEB’s determination that these conditions were 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 CI was noted to have a history of social isolation dating back to high school.  The GAD was thought to be secondary to chronic stress.  However, the MEB MH examiner determined that this condition met retention standards.  The final profile did list anxiety disorder, but was at an S2 level rather than S3 or S4.  The commander noted that the CI was a “top notch” soldier and only noted the unfitting back condition as being duty limiting.  The only NCO evaluation in the record was almost two years prior to separation, but noted that he was “among the best.”  The MEB determined that the GAD and avoidant personality traits both met retention standards.

The Board considered the appropriateness of the changes in the MH diagnoses and, if unfitting, the appropriate disability rating in accordance with VASRD §4.130.  The MEB forwarded the MH diagnoses of avoidant personality traits and GAD to the PEB for adjudication.  The PEB adjudicated the CI for the same diagnosis.  However, the clinical records did use the PTSD diagnosis during the PEB process and it is listed on the MEB NARSUM (general, not the MH evaluation).  The Board determined that the MH diagnosis was changed to the applicant's possible disadvantage in the disability evaluation process.  This applicant therefore did meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board considered if a change in diagnosis was appropriate.  The MEB examiner conducted an interview and also reviewed the VA MH examination.  He determined that the proper diagnosis was a reaction to chronic stress, GAD, and pre-existing avoidant personality traits.  As noted by the MEB examiner, the VA examiner subsequently diagnosed PTSD, but based this on a history which is not entirely consistent with the historical record.  The Board determined that there is not a preponderance of evidence to support changing the MEB/PEB diagnosis.

Both diagnoses were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that either of these conditions or any other mental health condition significantly interfered with satisfactory duty performance.  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 either contended 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 GAD and avoidant personality traits conditions, the Board unanimously recommends no change from the PEB determinations as 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 20130715, 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, AR20140018960 (PD201301073)

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