RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301713
BRANCH OF SERVICE:  Army	BOARD DATE:  20140611
Separation Date:  20041022

SUMMARY OF CASE:  The evidence of record indicates this covered individual (CI) was an active duty SSG/E-6 (31B/Military Police) medically separated for a low back condition.  Despite treatment the back condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501, with no other conditions submitted by the MEB.  The PEB adjudicated “chronic low back pain (LBP) status post (s/p) L5/S1 fusion” as unfitting, rated 10%, citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I don’t feel that the 10% rating in which I was awarded upon exiting the military was fair for my condition.  There were other conditions that should have been held in account that was not reviewed that I feel that would have made me unfit for service.  I am currently being treated for those condition that steadily keep getting worse.  I currently have cronick [sic] back problems that will never get better.”

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 any mental health (MH) condition in accordance with the Secretary of Defense directive for a comprehensive review of cases referred to a disability evaluation process between 11 September 2001 and 30 April 2012 in which MH diagnoses were changed or eliminated during that process.  Since the CI responded to this mailing, it is presumed that he elected review of a MH condition though he did not specifically contend for it on the DD Form 294.  In accordance with the Secretary of Defense directive, 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.  The CI is also eligible for review of other conditions evaluated by the PEB and has elected review by the PDBR.  The rating for the unfitting low back condition and any MH conditions 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 consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service PEB – Dated 20040914	VA - (~13 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP, S/P L5/S1 Fusion…	5241	10%	Lumbosacral Spine Strain	5241	20%	20051202	
			Left Lower Extremity Sciatica	8599-8520	10%		
			Right Lower Extremity Sciatica	8599-8520	10%		
No Additional MEB/PEB Entries	Other x 1		
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20060301

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his various conditions burden him, but must emphasize the Disability Evaluation System (DES) has neither the role nor authority to compensate for later severity or complications of conditions that resulted in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  Post-separation evidence is probative to the Board’s recommendations only to the extent it reasonably reflects the disability at the time of separation.  The Board acknowledges the CI’s contention for ratings of his conditions, but also emphasizes that service disability compensation may only be offered for conditions that cut short the member’s career.  Should the Board judge that a condition was most likely incompatible with the specific duty requirements, a disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.

Chronic LBP, S/P L5/S1 Fusion Condition.  The CI gradually developed a traumatic LBP in 2001 without any associated symptoms of leg pain, weakness, numbness or incontinence.  He was seen by a civilian orthopedist who noted that an X-ray demonstrated a pars defect (stress fracture or congenital vertebral body defect) at L5 and very minimal spondylolisthesis (movement of a vertebral body out of its normal alignment) at the same level.  Based on his symptoms and X-ray confirmation, a spinal fusion was advised.  The CI underwent a lumbar fusion at L5-S1 with a bone graft harvesting from the right hip on 12 December 2002.  The CI was followed by physical therapy (PT) for strengthening.  In 2003, the orthopedist noted a normal range-of-motion (ROM).  The primary care physician noted that the CI complained of back pain with decreased ROM with flexion to 60 degrees, tenderness to palpation over the scar on the lumbar spine and a positive test for sacroiliac joint pain.  The medical provider diagnosed chronic LBP secondary to surgery, ordered medication and issued a P3 Profile.  In May, 2004, the provider noted radicular symptoms that radiated down the left leg; however, no examination was done at that visit.  A civilian pain management specialist noted the radicular pain with no loss of strength or sensation.  The physical exam is summarized on the chart below.  A magnetic resonance imaging study performed 4 months prior to separation demonstrated mild L4-L5 degenerative disc disease.  The CI was given a permanent L3 profile for chronic LBP.  The MEB narrative summary (NARSUM) exam approximately 2 months prior to separation documented chronic back pain and functional limitations of an inability to wear body armor or a weapon belt; he was unable to run, perform sit-ups or lift greater than 20 pounds.  The CI was also unable to flex or extend his back and was unable to stand for a prolonged period of time.  The pertinent physical exam findings are summarized in the chart below.  The VA Compensation and Pension (C&P) exam approximately 13.5 months after separation documented intermittent severe LBP aggravated by weather changes, overexertion, walking (especially uphill), bending, twisting, stress and fatigue.  The physical exam findings are summarized in the chart below.

There were two ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the following chart:

Thoracolumbar ROM (Degrees)	Pain Clinic ~5 Mos. Pre-Sep	MEB ~2 Mos. Pre-Sep	VA C&P ~13.5 Mos. Post-Sep	
Flexion (90 Normal)	“Normal”	80	70	
Combined (240)	240	190	165	
Comment	Normal gait; Neg. Straight leg raise (SLR) bilaterally; Normal strength, sensory & reflexes	Normal gait, strength & reflexes; non-tender to palpation; Neg. SLR	Pos. painful motion; Normal gait & sensory; equal reflexes; slight decreased left great toe extension; Pos. muscle spasm; Pos. decreased motion with repetitive testing	
§4.71a Rating	0%	10%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and the VA applied the same VASRD code 5241 (spinal fusion; however, the PEB rated at 10% and the VA rated at 20%.  The general rating formula for diseases and injuries of the spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  All exams proximate to separation met the 10% criteria for “forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.”  The CI had chronic LBP and ROM flexion limited to 80 degrees at the MEB exam.  The C&P exam was 13 months after separation and the Board adjudged that the MEB exam which was 2 months prior to separation had the higher probative value.  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 LBP, s/p L5/S1 fusion condition.

Contended Mild Depression Condition.  The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military DES and determined that no MH diagnosis was changed to the applicant's possible disadvantage.  This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board’s charge with respect to the MH condition referred for review that was determined to be not unfitting by the PEB is an assessment of the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering PEB not-unfit determinations requires a preponderance of evidence.  On the MEB History and Physical exam DD Form 2807-1 the CI checked yes to depression or excessive worry and then noted that he had been treated for minor depression.  The examiner noted that the CI had been treated for minor depression, tried various medications during his back surgery problem and no longer required treatment.  The MEB NARSUM exam noted in the “All Other Conditions” section-mild depression; however, there was no discussion of a depression condition within the NARSUM.  This condition was not profiled and was not implicated by the commander’s statement.  This condition was not judged to fail retention standards.  The evidence was reviewed by the action officer and considered by the Board.  There was no indication from the record that this 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 the mild depression condition; therefore, no additional disability rating can be 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 s/p L5-S1 fusion condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended mild depression condition, the Board unanimously recommends no change from the PEB determination 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 20131021, 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, AR20140019331 (PD201301713)

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