RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301141
BRANCH OF SERVICE:  Army	BOARD DATE: 20140710
SEPARATION DATE:  20050705

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 (92Y/Unit Supply Specialist) medically separated for a chronic back condition.  The back 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 (S = 1) profile and referred for a Medical Evaluation Board (MEB).  The chronic back condition, characterized as “lumbar spondylosis” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic back pain, due to lumbar spondylosis” as unfitting rated 20% with application of the VA Schedule for Rating Disabilities (VASRD).  An Informal Reconsideration Board (IRB) convened a month later and changed the rating code but kept the rating at 20%.  A second IRB met a week later and reduced the rating to 10% stating that the “case (was) improperly rated on 7 June 2005,” and that there was “no basis for 20% when range of motion limited by pain”.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was told by an officer in charge of me while on Med Hold that 10% was all I needed to get separation bonus and that I could follow up with V.A. to increase rating. I am now 70%.”

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 20050614	VA - (7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Degenerative Lumbar Disc Disease w/Lumbar Facet Arthritis	5243	10%	20060223	
Other X 0 (Not in Scope)	Posttraumatic Stress Disorder (PTSD)	9411	30%	20060223	
	Other x 9	20060223	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20060310 (most proximate to date of separation [DOS]).
ANALYSIS SUMMARY: 

Chronic Back Condition.  Service medical records show that the CI complained of intermittent low back pain (LBP) exacerbations since injuring his back in 1993 while helping push a vehicle.  He experienced recurrent back strains and developed chronic LBP.  The sharp, shooting pain was made worse with lifting and activity.  The LBP was associated with muscle spasms, radiation down either lower extremity (left greater than right), leg weakness and episodic left ankle and foot numbness.  Magnetic resonance imaging (MRI) in September 1997 demonstrated degenerative disc disease with bulging discs at L4-L5 and L5-S1 and narrowing of the right neuroforamen at L4-5.  Electrodiagnostic testing (electromyogram and nerve conduction velocity testing [EMG/NCV]) in June 2001 was negative for evidence of radiculopathy (spinal nerve compression due to spine disease).  Repeat MRI imaging in February 2004 again demonstrated degenerative disc disease with mild disc bulging.  There was no disc herniation, impingement on nerve roots or significant neuroforamen narrowing.  At the 27 April 2004 neurosurgery consultation, the CI was diagnosed with chronic lumbosacral strain, required no operative intervention and was discharged from the neurosurgery clinic.  The CI was treated by pain management with a series of injections and radiofrequency ablation of pain conducting nerves in the low back.  At the time of a 12 May 2004 pain clinic evaluation, lumbar spine flexion was 60 degrees.  At the 10 June 2004 physical therapy appointment, the CI complained of chronic 3-5/10 LBP made worse with sitting, standing, walking and lifting.  The pain was relieved with rest, ice and heat packs.  The CI denied significant relief from injections.  The physical examination documented a normal gait and ability to transfer and change positions without difficulty.  The lumbar spine was flat and lumbar paraspinal muscles were described as tense.  The active motion evaluation documented normal bilateral back side bending and rotation and in forward bending the CI’s fingers reached to the toes.  Bilateral straight leg raises were limited to 60 degrees by report of increased LBP.  At the 13 December 2004 rheumatology consultation, the CI complained of muscle weakness in the past year.  He reported gradual onset of muscle weakness, worse in legs, with associated early fatigue.  He complained of sore muscles and pain exacerbated by activity.  The physical examination documented normal strength (5/5) in all extremities, paraspinal muscle spasms, and tender points.  On 24 January 2005 an MRI of the bilateral lower extremities was unremarkable with no evidence of muscle disease (inflammation or other abnormality).  X-rays of the hips, lumbosacral spine and sacroiliac joints were normal on 26 January 2005.  The 28 January 2005 rheumatology addendum stated the evaluation for rheumatic diseases was negative.

The MEB physical examination dated 6 February 2004 (DD Form 2808) recorded forward flexion of 90 degrees.  At the 15 February 2005 MEB narrative summary (NARSUM) the CI reported lower back pain since injuring his back pushing a vehicle in 1993.  He complained of chronic 2/10 back pain at rest and 6/10 pain with activity and lifting.  The pain was described as sharp and shooting down either leg (especially the left) and into the feet.  The CI reported associated low back muscle spasms, bilateral leg weakness, and episodic numbness of the left ankle and side of the foot.  The MEB NARSUM included findings from the physical examination performed on 9 December 2004.  The examination documented his functional mobility showed complete independence.  Strength, posture, balance and coordination were listed as good.  The examiner recorded lumbar spine range-of-motion (ROM) as flexion of 60, extension of 30, right lateral flexion of 20, left lateral flexion of 20, right rotation of 18 and left rotation of 18.  The neurological examination was unremarkable with normal sensation.

At the VA Compensation and Pension (C&P) examination on 23 February 2006 (7 months post-separation), the CI reported he developed severe back pain while helping to push a truck in the Army.  He was diagnosed with mechanical low back and reported some degree of back pain ever since.  The CI complained of chronic 3/10 lumbar paraspinous muscle pain, with flares to 9/10 with activity (bending, twisting, stooping or lifting).  He reported painful flares were relieved by 2-7 days of rest, lying supine, and taking medications (pain medications and muscle relaxants).  He denied any incapacitating episodes in the preceding 12 months.  The CI complained of numbness and weakness in the lower extremities.  He had a steady gait and could walk a mile.  He was able to walk without the aid of a back brace, cane, crutch or walker.  Back and leg pains prevented all recreational activities except sedentary activities.  Physical examination demonstrated straightening of the lumbar spine with normal curvature of the cervical and thoracic spine.  Bilateral paraspinous muscles demonstrated spasm and tenderness to palpation and a limp was observed by the examiner.  Following repetitive movement, thoracolumbar ROM in degrees was documented as follows:  flexion was 70 (normal 90), extension was 20 (normal 30), bilateral lateral bending was 20 (normal 30) and bilateral rotation was 20 (normal 30).  Motion was limited by pain and stiffness.  Increased pain, fatigability, incoordination and weakness were demonstrated after repetitive motion exercises.  The right Achilles reflex was intact but decreased compared to the left.  Sensation was intact.  Bilateral straight-leg tests were positive for radiating pain.  Diagnoses were listed as mild degenerative lumbar disc disease, lumbar facet arthritis, bilateral lumbar paraspinous muscle spasm and bilateral piriformis syndrome causing sciatic nerve compression.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the chronic back pain 10% (coded 5299-5237, lumbosacral strain) noting absence of neurologic or electrodiagnostic abnormality and forward flexion limited by pain.  The VA rated the back condition 10% (coded 5243; intervertebral disc syndrome) citing the limitation of motion at the time of the VA C&P examination.  Although the PEB and VA used different codes, both codes are rated under the general rating formula for diseases and injuries of the spine which is based on limitation of thoracolumbar ROM.  The MEB NARSUM examination reported “lumbar” flexion rather than thoracolumbar flexion used by the VASRD general rating formula for diseases and injuries of the spine.  If the MEB NARSUM examiner in fact reported lumbar flexion rather than thoracolumbar flexion, the 60 degrees reported is normal for lumbar spine flexion and would be consistent with the results recorded on the DD Form 2808 which recorded forward flexion of 90 degrees.  A thoracolumbar flexion of not more than 60 degrees supports a 20% rating under the VASRD general rating formula for diseases and injuries of the spine.  However a normal lumbar flexion of 60 degrees does not support the 20% rating.  Despite apparently worse symptoms at the time of the VA C&P examination 7 months after separation, the limitation of motion supported a 10% rating.  Therefore, the Board concluded the preponderance of evidence supported a 10% rating based on limitation of thoracolumbar motion.  The Board noted the features of the VA examination that supported consideration of the 20% rating but agreed that the evidence of the service treatment record and MEB NARSUM did not support this higher rating at the time of separation.  The Board also considered rating the back condition using the VASRD formula based on incapacitating episodes due to intervertebral disc syndrome (5243).  The criteria are based on the number of incapacitating episodes in the prior 12 months requiring bed rest prescribed by a physician.  No documented physician directed bed rest was in evidence in the service treatment records or at the time of the MEB NARSUM or C&P examination.  Finally, the Board considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The EMG/NCV study showed no electrophysiological evidence of lower extremity radiculopathy or neuropathy.  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 may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There was no evidence in this case that motor weakness or sensory loss existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating 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 low back condition.
Contended Mental Health Condition.  The Board considered the MH condition regarding appropriateness of changes in diagnoses and fitness determination in accordance with the special MH review project.  No MH diagnosis was listed on the MEB referral sheet and none was considered by the PEB.  The Board considered whether an MH diagnosis was eliminated during the DES process.  Service medical records show the CI had multiple encounters at a neurodiagnostic center, that specialized in psychiatry and neurology, between 2001-2002 (while in non-active military status; 3 years before separation).  He had subjective complaints of tiredness and fatigability plus muscle weakness, tightness, achiness and pain.  The diagnostic workup for an underlying medical etiology was negative.  The neurologist listed a number of psychosomatic complaints and opined that symptoms could be from somatization and/or fibromyocitis (fibromyalgia).  The CI was diagnosed with fibromyalgia, chronic fatigue, and secondary depression (symptoms of depression which follow or parallel the clinical course of one or more pre-existing non-affective psychiatric disorder or medical illness).  He was treated with psychotropic medications and enjoyed significant resolution of pain, energy and mood symptoms when compliant with therapy.  The CI was activated and deployed to Iraq in February 2003.  The non-commissioned officer evaluation report, for the period November 2002 to October 2003, documented excellent duty performance with a “promote ahead of peers” recommendation.  On 2 February 2004, a social worker referred the CI to the behavioral health clinic because of flashbacks about the war, back pain, fibromyalgia and financial pressures.  At the 10 February 2004 behavioral health encounter, the CI complained of diminished sleep, diminished energy, diminished interest, emotional lability (cried frequently), poor concentration and easy confusion.  The psychologist recommended participation in group therapy and the CI began participation on 10 February 2004.  At a 26 April 2004 initial assessment by psychiatry, the CI complained of anxiety, sleep disturbances (falling asleep, staying asleep, and nightmares), and difficulty with focus, attention, and concentration.  He reported an enhanced startle reflex with excess activation.  The CI disliked crowds, confined places without exits and reported checking doors and windows for security.  The CI complained of flashbacks of intrusive thoughts related to a car bomb episode.  On mental status exam, the CI demonstrated normal orientation, insight and judgment.  He displayed a nervous mood with an anxious and flat affect.  The CI demonstrated no psychomotor, thought process, or thought content abnormalities.  He denied suicidal ideation, intent or plan.  The diagnoses listed PTSD, depression not otherwise specified (NOS), fibromyalgia and back pain.  At the same day on 26 April 2004 psychology consultation, the CI reported the same PTSD-like symptoms.  He reported symptoms began in November 2003 following rocket and mortar attacks in Iraq.  The psychologist listed chronic PTSD and alcohol abuse in partial remission as diagnoses.  At the 29 April 2004 follow-up appointment for chronic PTSD and alcohol abuse, the psychologist reviewed psychiatric testing results with the CI.  The Personality Assessment Inventory test could not be interpreted due to over-endorsement of symptoms and results were deemed invalid.  The Trauma Symptom Inventory test implied pervasive feelings of depression, hopelessness, worthlessness, inadequateness, nervousness, jumpiness, edginess, tenseness, and fearfulness.  The Mississippi scale (assessment test for combat-related PTSD) suggested a significant degree of PTSD.  The CI endorsed being hyper-alert, hyper-vigilant, intrusive experiences (nightmares, flashbacks, and intrusive memories) and actively avoiding aversive situations.  At the 17 May 2004 psychiatry encounter, the CI complained of persistent enhanced startle reflex, anxiety, flashbacks, intrusive thoughts, nightmares, sleep disturbance, sleep fragmentation, sleep deprivation and daytime sleepiness.  The Global Assessment of Function (GAF) score was 65-70 (some mild symptoms, generally functioning pretty well) and diagnoses were listed as PTSD, depression NOS, and anxiety NOS.  At the 14 December 2004 psychiatry encounter, the CI reported he had less anxiety and less frequent and intense events.  He reported he was doing administration/desk work and was married in August 2004.  The GAF score was 65 (mild symptoms) and diagnoses were listed as PTSD and depression NOS.  At the 1 January 2005 psychiatry encounter, the CI reported having more trouble with sleep (3-4 hours/night) with some morning sedation from a sleep medication.  The GAF score was 60 (denoting moderate to mild symptoms) and diagnoses were listed as PTSD and depression NOS.  The MEB NARSUM on 15 February 2005 noted symptoms of insomnia, depression and PTSD, but indicated the physical profile as S1 indicating no limitations due to psychological problems.  The commander’s statement on 10 April 2005 refers to the CI’s physical limitations but makes no reference to psychological problems affecting duties.  No MH condition was referred into the DES, no MH condition was eliminated from referral into the DES and there was no change in diagnosis evident.  Therefore, the case does not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board considered the fitness of the MH condition based on a preponderance of evidence.  The MH condition was not profiled, not implicated in the commander’s statement, and not judged to fail retention standards, but was reviewed and considered by the Board.  The Board determined that there was no performance based evidence from the record that any MH 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 addition of any MH condition as a separately unfitting condition 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.  In the matter of the chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended mental health 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 20130816, 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, AR20140016188 (PD201301141)

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