RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01601
BRANCH OF SERVICE:  Army	BOARD DATE:  20140828
SEPARATION DATE:  20051005

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a drilling Reserve SFC/E-7 (21H/Construction Engineering Supervisor) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  His profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3/S2 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized by the MEB as “chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Adjustment disorder was also identified and forwarded for to the PEB as medically acceptable.  The Informal PEB adjudicated “chronic low back pain without significant neurological abnormality” as unfitting, rated at 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  Adjustment disorder was determined to be not unfitting and therefore not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 low back condition is addressed below.  In addition, the CI was notified by the Service that his case qualified for review of his mental health (MH) condition in accordance with the 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 unfavorably changed or eliminated during that process.  In response to said notification, it is presumed that the CI has elected review by this Board for the MH condition.  Accordingly, the case file was reviewed regarding unfavorable diagnosis change, fitness determination, applicability of VASRD §4.129 and rating (via §4.129 or §4.130 as appropriate) of the MH condition service adjudicated as not unfitting.  The rating for the unfitting low back condition and the above considerations for the MH condition are addressed below.  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 20050623	VA - (16 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5237	10%	Herniated Disc at L4-L5 bulging Disc at L1S1 with Lumbar Spasms, Myositis and DJD	5242	10%	20040625	
			LLE Radiculopathy	8620	10%	20040625	
			RLE Radiculopathy	8620	10%	20040625	
Adjustment Disorder	Not Unfitting	Depressive Disorder, NOS	9434	10%	20040727
20040625	
Other x 0 (Not in Scope)	Other x 0		
Rating:  10%	Combined Rating:  40%	
Derived from VA Rating Decision (VARD) dated 20040823 (most proximate to date of separation)

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

Low Back Condition.  The MEB narrative summary noted the CI’s symptom of low back pain (LBP) began in 1997 after lifting heavy equipment.  With medications and physical therapy (PT), his symptoms improved.  However, on 11 December 2003, 4 days after mobilization, the CI sought treatment for back pain after unloading boxes.  Again medication was prescribed for his back pain.  Radiographs of the lumbar spine dated 16 January 2004, demonstrated normal vertebral body heights, intervertebral spaces and normal posterior elements of the spine.  There were osteophytes in the anterior lumbar spine.  Lumbar spondylosis (degenerative joint disease [DJD]) was identified, along with right kidney stones.  Repeat X-rays performed on 4 May 2004, recorded normal lumbar lordosis and osteopenia with minimal diffused marginal osteophytes throughout the lumbar and thoracic spine.  

VA Compensation and Pension (C&P) spine examination on 25 June 2004, noted a lumbar magnetic resonance imaging revealed small central disc protrusion at L4-L5, L5-S1 levels and the presence of lumbar muscle spasms.  The CI reported LBP with radiation to the mid back associated with occasional tingling and cramps of the calves.  The pain was noted as constant without medication; with anti-inflammatory medication, pain was controlled for 8 hours.  Working his construction job precipitated back pain, while medications, topical bengay, heating pads and lying on the floor relieved the pain.  The CI noted he could drive a car for 45 minutes without problems, but had difficulty jogging, running and playing softball.  The examiner noted the CI reported he had missed work due to acute flare-ups (15 occasions, not supported by evidence).  Physical examination recorded thoracolumbar range-of-motion (ROM) flexion to 85 degrees and extension to 20 degrees.  Painful motion was noted at the end of each measure; however, ROM was not limited by fatigue, weakness or lack of endurance following repetitive use.  Spasm was noted in the thoracolumbar region.  There was no evidence of neuromuscular deficits.  There were neither postural abnormalities nor fixed deformities of the back.  The CI used a cane for walking only during acute pain episodes.  The CI reported he had been prescribed 72 hours of bed rest on two occasions due to incapacitating episodes of back pain.  On 6 August 2004, the same examiner, in response to a request for a medical opinion, stated, “It is my opinion that the lumbar spine DJD is not due to LBP incident due to moving boxes….it is due to the natural process of aging.  You do not develop arthritis on a period of 4 months with four days.”  The examiner also noted there had been one sick slip dated 16 December 2003 with a diagnosis of back pain and return to clinic for X-rays and limited duty.  Radiographs of the lumbosacral spine on 18 November 2004 were normal.  
Physiatrist entry dated 20 December 2004 assessed lumbar pain as “purely mechanic” in origin and noted that the X-rays were fully normal.  At the narrative summary (NARSUM) examination on 28 April 2005, the CI reported occasional sleep disturbance secondary to his back pain, with occasional pain radiating into his leg.  His pain was recorded as 4/10 at rest and when aggravated, 8/10.  Prolonged driving, walking, lifting and prolonged bending aggravated his back pain.  Physical examination recorded that the CI could toe and heel walk without difficulty and his gait was normal.  There was tenderness on palpation of the lumbar spine and straight leg raise was positive.  Muscle strength was 5/5.  ROM recorded by PT on 20 April 2005, noted flexion of 35 degrees and extension of 20 degrees.  Pain was recorded as 7/10 to 8/10 during ROM.  There was no indication that muscle spasm, neurological deficits or abnormal gait were present.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition 10% for chronic LBP “without significant neurologic abnormality” and ROM limited by pain, coded 5299-5237.  The VA used code 5242 (limitation of motion), rated 10%.  A higher rating of 20% under the 5237 code requires spasms producing abnormal gait or abnormal curvature of the spine or forward flexion not greater than 60 degrees.  The Board noted the ROM recorded at the NARSUM noted flexion of 35 degrees; however, this was not consistent with other ROM recorded in evidence.  The 18 November 2004 physiatrist treatment entry, 6 months prior to the PT ROM examination, noted full ROM of upper and lower back.  The C&P examination recorded 85 degrees flexion.  

The Board deliberated the probative value of the PT ROM.  The Board noted the absence of spasms, the presence of a normal gait, the CI’s ability to heel and toe walk and minimal radiographic pathology.  All Board members agreed the ROM findings one week prior to the MEB were not consistent with the record in evidence.  The CI had a normal MEB physical examination.  Therefore, the Board assigned greater probative value to the C&P examination since the findings of that examination were more consistent with the preponderance of clinical evidence.  The Board concluded there was insufficient evidence to support a higher rating under the 5237 code.  The Board determined there was no rationale to separate out the reported radiation of pain since that is subsumed under the general rating code of 5237.  The Board considered rating under 5243; however, there was no evidence or ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication.  There was no evidence of incapacitating episodes for a higher rating under 5243.  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 low back pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the condition of adjustment disorder 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 Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH conditions during processing through the military pilot Disability Evaluation System (DES).  The evidence of the available records showed adjustment disorder with depressed and anxious mood, and depression were the diagnoses rendered during the DES process.  The MEB DD Form 2808, Report of Medical Examination, recorded the diagnosis of depression.  One profile included the diagnosis of depression, but a subsequent profile, a week later, changed the diagnosis to adjustment disorder.  Therefore, the Board concluded that a MH diagnosis was unfavorably changed during the DES process.  This applicant therefore did appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board noted the diagnosis of depression, not otherwise specified (NOS) was the treatment related diagnosis; however, review of the records demonstrated a recorded “history of depressive disorder NOS” and the use of medications to prevent relapse.  Each entry recorded that the applicant had symptoms after being activated; however, there were very few depression related symptoms in evidence.  Board members concluded there was not a preponderance of evidence to support the diagnosis of depression NOS.  The majority of MH entries noted the chief complaint of anger and sleep disturbance.  Board members agreed the record adequately demonstrated that the applicant responded to the specific stressor of being activated and in the absence of any other identifiable stressor; the most appropriate diagnosis was an adjustment disorder.  Adjustment disorder is not a physical disability and is not ratable IAW DoDI 1332.38.  All Board members agreed that evidence of the record reflected minimal MH related symptoms.  All of the mental status examinations were unremarkable, there was no evidence of visits to the emergency room for MH issues, no report of suicidal or homicidal ideations and although, the applicant reported difficulty in controlling his anger, there were no report of violent incidents.  The applicant was never hospitalized psychiatrically prior to separation and although the applicant took psychotropic medications, he maintained full-time employment, had no legal issues, no report of domestic violence, was noted to have had an adequate support system and his GAF scores ranged from borderline mild to minimal symptoms.  The adjustment disorder condition was profiled as S2 and was not judged to fail retention standards.  The condition was reviewed and considered by the Board.  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 a change in the PEB fitness determination and 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 chronic LBP conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the adjustment disorder, the Board unanimously recommends no change from the PEB determination of 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130712, 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 XXXXXXXXXXXXXXXXX, AR20150006276 (PD201301601)

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:

						         
CF: 
(  ) DoD PDBR
(  ) DVA