RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301211
BRANCH OF SERVICE:  Army	BOARD DATE:  20140829
SEPARATION DATE:  20031105

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (19D20/Calvary Scout) medically separated for chronic low back pain (LBP).  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 profile and referred for a Medical Evaluation Board (MEB).  The LBP condition, characterized as “chronic low back pain, degenerative disk disease,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Muscle atrophy right thigh and right leg, etiology undetermined was also submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain” as unfitting, rated 10%, citing criteria of the Department of Defense Instruction (DoDI) 1332.39  and Army Regulation (AR) 635-40.  The PEB determined the muscle atrophy right thigh and right leg condition to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Do to the severity of my back, hip and leg the VA now has me rated @ 60%.  I am asking that my 10% from the Army be raised to above 30% so that I may be able to have a medical retired status due to the fact that I loved being a soldier and had planned to retire but was unable to due to injuries”.

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.  The rating for the unfitting LBP condition is addressed below; as well as the contended leg condition (muscle atrophy right thigh and right leg, etiology undetermined).  Additionally, the CI has requested a review of the military disability evaluation of their mental health (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 applicant’s case file was reviewed regarding diagnosis change, fitness determination and rating of any unfitting MH diagnoses in accordance with the VA Schedule for Rating Disabilities (VASRD) §4.129 and §4.130.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20030511	Based on VA and Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain, Without Neurologic Abnormality	5299-5295	10%	Chronic LBP w/DDD	5237	10%	STR & 20040818	
Muscle Atrophy Right Thigh and Right Leg, Etiology Undetermined	Not Unfitting	Right Lower Extremity Atrophy….w/LBP w/DDD	8521	10%	STR	
Other x 1 (Within Scope)	Depression/Insomnia	9499-9434	NSC*	STR	
	Other x 4 NSC	
Combined:  10%	Combined:  20%*	
Derived from VA Rating Decision (VARD) dated 20050503 (most proximate to date of separation [DOS]).  *VARD 20060823 awarded 30% for MH Condition effective November 2004 based on VA treatment records in 2005 and 2006.  Applicant previously failed to report for exam.

ANALYSIS SUMMARY:  The PEB was accomplished and rating assigned under the older VASRD spine rules.  The new spine rules (effective on 26 September 2003) were effective prior to the CI’s date of separation.  The Board adjudication will therefore be based on the VASRD in effect at the time of separation which is the same as the current spine criteria.

Low Back Pain Condition (and Contended Muscle Atrophy Right Thigh and Right Leg).  The narrative summary (NARSUM) dated 31 July 2003, noted a back injury in 2002 with exacerbations and recurrent pain not responsive to conservative therapy including rest and restrictions, a burst of steroids, injections and physical therapy.  The CI also complained of back pain radiating to the right hip and knee “at times.”  A treatment note from 17 December 2002 (7 months prior to the NARSUM) indicated “minimum stability supporting body weight with right leg.”  The MEB physical exam noted tenderness in the right lower back (sacroiliac joint) and normal radicular testing (straight leg raising and FABER’s).  Range-of-motion (ROM) testing documented 60 degrees forward flexion (normal 90 degrees) and combined ROM of 210 degrees (normal 240 degrees - with application of the general spine formula notes for rounding and truncating measurements to the VASRD normal limits).  Motor strength, reflexes and sensory exams were normal.  Atrophy of the right thigh (3 inches less than the left) and leg (1/4 inches less than the left) were documented.  The CI could “walk on his heels and toes with no difficulty.”  Imaging documented disc disease in the lower lumbar spine with disk bulges.

There was no VA Compensation and Pension (C&P) exam performed proximate to separation.  However, a VA treatment evaluation, to establish VA care from 18 August 2004 approximately 9 months after separation, indicated complaint of lower back pain without radiating symptoms, with use of non-steroidal anti-inflammatory medication with occasional use of narcotic medication.  Exam documented lower back tenderness and a limp (with noted ankle surgery in April 2004).  There was no weakness and the CI could walk on heels and toes.  Forward flexion was 80 degrees (normal 90 degrees) with extension of 25 degrees (normal 30 degrees).  Straight leg raise testing was negative, there was no weakness and the left ankle abnormal reflex was attributed to the ankle surgery.  The VA rated the back condition at 10% using evidence from this treatment note and rated the right lower extremity at 10% coded 8521 (External popliteal nerve [common peroneal]) - peripheral nerve mild paralysis.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the back as 5299-5295 which was a code (5295, lumbosacral strain) from the older VASRD.  The VASRD coding and criteria in effect the date of the CI’s separation use the general spine formula.  Forward flexion of the thoracolumbar spine of 60 degrees meets the 20% rating criteria under code 5237 (lumbosacral strain) for “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  The post-separation VA evidence was more remote from separation, did not include a complete ROM evaluation (for combined ROM determination) and likely indicated post-separation improvement.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low back condition.

Contended Muscle Atrophy Right Thigh and Right Leg:  The Board’s main charge is to assess the fairness of the PEB’s determination that the muscle atrophy right thigh and right leg, etiology undetermined, was 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 right leg muscle atrophy condition was not profiled and was not judged to fail retention standards.  The commander’s comments did not delineate impairment from the back or the leg.  The exams of the legs are detailed above in the lower back section and any pain component is addressed under the general rating of the spine above.  The Board considered that the VA rated the leg atrophy under a peripheral nerve coding [10% as 8521; mild paralysis of the popliteal nerve].  Although there was documented muscle atrophy in the right thigh/leg, there was insufficient performance based evidence from the record that weakness or other non-pain radiculopathy 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 the muscle atrophy right thigh and right leg condition and so no additional disability rating is recommended.

Contended MH Condition (Depression).  The Board’s main charge is to assess if any MH condition should have been considered unfitting and ratable at the time of separation.  There was no MH condition listed on the MEB or PEB or as a NARSUM diagnosis.  The NARSUM review of systems indicated that the CI “was treated for depression at the Behavioral Health Clinic since his back problem and claims this is from being frustrated from being unable to go to Ranger School.  He claims he is doing fine at present concerning this.”  The CI was taking antidepressant medication (Wellbutrin).  The DD Form 2807-1 dated 31 July 2003 indicated the CI reported seeing MH for depression, sleeping disorder and marriage counseling and was taking medications (Wellbutrin).  The MEB physical DD Form 2808 indicated a normal psychiatric exam, an S1 profile recommendation and no MH diagnosis listed as significant or disqualifying defects or diagnoses.  Profile was S1 and did not list any MH condition.  The commander’s statement indicated “job performance was admirable.”

The VA treatment evaluation to establish VA care from 18 August 2004, approximately 9 months after separation, noted a positive posttraumatic stress disorder (PTSD) screen with “possible PTSD” and referral to MH clinic for evaluation.  VA MH evaluation for treatment dated that month documented historical mild depression symptoms, potential stressors; a reported suicide attempt in July 2003, prior counseling and medication use and made a diagnosis of anxiety, not otherwise specified (NOS) with “Rule out PTSD.”  The VA awarded a 30% rating based on the exam in 2004.  The CI failed to show for the VA C&P evaluation in August 2004 which documented historical mild depression symptoms, potential stressors and made a diagnosis of anxiety, NOS with “Rule out PTSD.”  As noted above, the VA awarded a 30% rating for MH condition of major depressive disorder (claimed also as insomnia) effective November 2004 based on VA treatment records in 2005 and 2006.  In 2008 an evaluation additionally diagnosed depressive disorder, NOS and “Rule out Cognitive Disorder (TBI history).”

There was no MH condition listed in the Disability Evaluation System and this case therefore does not meet the inclusion criteria in the Terms of Reference of the MH Diagnosis Review Project.  There was insufficient evidence to make any change to any MH diagnosis in the record.  There was no performance based evidence from the record that any MH condition, regardless of diagnosis, 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 unfitting and so no additional disability rating is 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.  As discussed above, PEB reliance on DoDI 1332.39, AR 635-40 and the older VASRD for rating the low back condition was operant in this case and the condition was adjudicated independently of those instructions and with the VASRD in effect at the time of separation by the Board.  In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the contended muscle atrophy right thigh and right leg condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  In the matter of the contended MH condition, the Board unanimously agrees that it cannot recommend any MH 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	
Low Back Pain, Without Neurologic Abnormality	5299-5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130909, 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, AR20140018982 (PD201301211)

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 20% 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