RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00055
BRANCH OF SERVICE:  Army	BOARD DATE:  20150526
Separation Date:  20071218

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Military Police) medically separated for lower back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty, but was authorized to perform an alternate physical fitness test (per PROFILE).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The low back pain (LBP) was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions (cyclothymic disorder, chronic sinusitis, gastroesophageal reflux disease [GERD], and right meralgia paresthetica), judged to meet retention standards.  The Informal PEB adjudicated “lumbosacral sprain” as unfitting, rated 10%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was rated by VA at 90% for mental health conditions not taken into consideration at time of separation.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20070927	VA* - (~3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Sprain	5237	10%	Lumbar Strain	5237	10%	20080313	
Cyclothymic Disorder	Not Unfitting	Bipolar Disorder (Cyclothymic), mixed with Posttraumatic Stress Disorder	9411-9432	30%		
Other x 3 (Not In Scope)	Other x 3	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20080625 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Lumbosacral Sprain Condition.  The CI first injured his lower back in June 2005 when he fell out of a turret and landed on his back.  He completed his tour and reinjured his lower back in December 2006 during training.  He developed LBP which prevented him from walking due to the pain.  He was followed by primary care and physical therapy for the chronic LBP.  The lumbosacral spine X-ray was normal.  The Physiatrist noted that there was tenderness to palpation (TTP) in the lower lumbar spine and bilateral lower lumbar paraspinals with trunk flexion limited to 40 degrees due to discomfort.  He had +4/5 Waddell’s signs - superficial tenderness, simulation and regional overreaction.  The lumbar spine magnetic resonance imaging showed mild lower lumbar degeneration changes at L3-S1.  The commander’s statement indicated that the CI had frequent complaints of LBP, leg numbness and an inability to move.  He had confining limitations due to his chronic LBP that he was unable to wear the minimum amount of protection to go to the range and qualify on any weapon system.  The MEB narrative summary (NARSUM) exam approximately 4 months prior to separation documented that the CI had constant sharp throbbing LBP which radiated from 2-9/10 and was made worse with prolonged sitting and standing, wearing body armor, wearing a pistol belt and lifting heavy objects.  The MEB NARSUM physical exam findings are summarized in the chart below.

The VA Compensation and Pension (C&P) exam approximately 3 months after separation documented that the CI reported non-radiating pain in the back.  He also reported intermittent numbness in his right leg and foot which necessitated a cane for walking.  The VA C&P physical exam findings are summarized in the chart below.  The Neurosurgeon noted back pain and leg numbness complaints, however, there were no objective neurological deficits; with a normal motor, sensory exam and normal reflexes.

Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case had no functional implications.  There was no motor impairment present.  Since no evidence of functional impairment existed in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

There were range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~4 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep	
Flexion (90 Normal)	ROM wnl with pain at end range	0-80	
Extension (30)		0-10	
R Lat Flexion (30)		0-20	
L Lat Flexion (30)		0-20	
R Rotation (30)		0-20	
L Rotation (30)		0-20	
Combined (240)		170	
Comment	Mild tenderness to palpation (TTP); reflexes nml; sensory intact except to lateral right thigh with decreased sensation to light touch; Waddell’s signs 2/5 (axial compression, distraction)	5/5 strength; reflexes nml; no change with repetition in ROM; mild pain with extremes of motion; mild TTP in right paraspinal muscle; cane	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the lower back condition as 5237 (Lumbosacral or cervical strain) and rated at 10%.  The VA also coded the lower back condition as 5237 and rated at 10%.  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.”  The MEB examiner documented that the CI had TTP.  The VA examiner documented mild TTP and slightly limited ROM.  The CI met the 10% rating criteria of “localized tenderness not resulting in abnormal gait or abnormal spinal contour.”  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 lumbosacral sprain condition without an additional peripheral neuropathy condition.

Contended PEB Conditions.  The contended condition adjudicated as not unfitting by the PEB was cyclothymic disorder.  The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering fitness determinations is preponderance of the evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

This condition was not profiled - the CI was only profiled for a non-MH condition.  The commander’s statement focused solely on the back condition, there was no mention of any psychiatric condition.  The cyclothymic condition was not judged to fail retention standards.  The CI did not have any psychiatric emergency room visits nor were there any psychiatric admissions.  There was no documentation that the CI had suicidal or homicidal ideations.

The MEB NARSUM addendum approximately 4 months prior to separation documented that the CI had never been under any MH care.  He reported feeling depressed about his wife’s illness and endorsed periods of excessive energy and trouble controlling his thoughts.  The mental status exam demonstrated a depressed mood, however his thought processes were linear, logical and goal directed.  He had adequate insight and judgment.  The examiner documented that the CI reported that he excelled as a soldier and did well.  The examiner diagnosed cyclothymic disorder manifested by brief periods of depression and mild elevation with agitation which did not appear to reach the threshold of bipolar disorder with a minimal impairment for military duty.  The examiner opined that “his symptoms have appeared to have little impact on his duty performance.”  The impairment for social and vocational adaptability was very mild.  The Global Assessment of Functioning was 75 (If symptoms are present they are transient and expectable reactions to psychosocial stressors; no more than slight impairment in social, occupational, or school functioning) and the maximum functioning on the previous 12 months was 75.

The Board reviewed the VA MH C&P exam which was approximately 4 months after separation.  Although this exam showed significant worsening of the CI’s mental health symptoms and a changed diagnosis of PTSD, the Board adjudged this exam as after separation symptom worsening.

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 contended cyclothymic disorder condition and, therefore, no additional disability ratings 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 condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended cyclothymic disorder 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131220, 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 XXXXXXXXXXXXXXXXXXXX, AR20150014183 (PD201400055)

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