RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00346
BRANCH OF SERVICE:  Army	BOARD DATE:  20141126
SEPARATION DATE:  20041116

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (63B34/Light Weight Vehicle Mechanic) 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 low back condition, characterized as “degenerative disc disease (DDD) of lumbar spine,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic low back pain secondary to DDD L4/L5, L5/S1,” rated at 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  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, and no additional conditions are within the DoDI 6040.44 defined purview of the Board.  In addition, the CI was notified by the Army that his case may eligible for review of the military disability evaluation of his 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 or eliminated during that process.  As a MH Review application all MH conditions will also be considered in scope for review.  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 20041001	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain Secondary to Degenerative Disc Disease	5243	10%	Thoracolumbar Strain	5242	10%	STR	
Other x 0 (Not In Scope)	Other x 3	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20050613 (most proximate to date of separation)
No MH conditions mentioned in original VARD or NARSUM/MEB/PEB documents.

ANALYSIS SUMMARY:

Chronic Low Back Pain Condition.  According to the MEB narrative summary (NARSUM) and STRs, the CI had chronic/intermittent LBP since 1988 after a fall while on duty.  A magnetic resonance imaging (MRI) scan in December 1999 demonstrated “minimal” bulging intervertebral discs at L3-4 and L4-5 without “significant compression of the neural elements.”  Clinic evaluation performed on 29 January 2004, recorded chronic LBP with occasional radiation of pain into the legs (left more than right) that was aggravated by a recent deployment to Iraq (May 2003 to November 2003).  On examination, the CI was able to bend over and touch his toes, but extension was limited to 15 degrees due to discomfort.  Strength and reflexes were normal.  Straight leg raise was negative for radicular symptoms.  The CI was referred for MRI and orthopedic evaluation.  The MRI report is not in the available file; however, the orthopedic surgeon performed on 14 May 2004, stated that there was no indication for surgery at that time.  In May 2004, the CI was referred for an MEB due to persisting LBP with duty limiting profiles.  

The MEB NARSUM performed on 4 August 2004, summarized the history of chronic LBP with a duty limiting profile for 2 years.  The CI reported pain limited heavy lifting, bending, twisting and running.  On examination, the gait was normal.  Spinal contour was normal (no scoliosis).  Flexion was 90 degrees (normal 90), extension 0 degrees (normal 30), rotation 30 degrees to both sides (normal 30) and lateral bending 30 degrees to both sides (normal 30 degrees).  Strength, sensation and reflexes were normal.  The straight leg test was “equivocal.”  There was no VA Compensation and Pension examination proximate to separation.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic LBP 10% citing limitation of combined thoracolumbar range-of-motion (ROM) to 210 degrees, coded 5243 (intervertebral disc syndrome).  The VA rated the chronic LBP (thoracolumbar strain) 10% citing limitation of motion, coded 5242 (degenerative arthritis of the spine) based on STRs.  The limitation of extension at the time of the MEB NARSUM examination supported the 10% rating based upon the General Rating Formula for Diseases and Injuries of the Spine (loss of extension with a combined thoracolumbar ROM greater than 120 degrees but not greater than 235 degrees).  The Board found no evidence to support a higher rating based on limitations of motion.  Although occasional radiating pain was reported, no evidence existed to support nerve root impingement or radiculopathy for consideration of a separately unfitting rating.  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 secondary to DDD.

Contended Mental Health Condition.  The Board reviewed the service treatment and military Disability Evaluation System (DES) documentation for evidence of changes in the MH diagnoses, PEB fitness determination, and if unfitting whether the provisions of VASRD §4.129 were applicable, and a disability rating recommendation in accordance with VASRD §4.130.  The CI was deployed to Iraq from 7 May 2003 to 18 November 2003.  On the post deployment health assessment completed by the CI on 28 October 2003, he checked “no” in response to questions regarding having seen anyone dead, killed or wounded, being engaged in combat or having felt in great danger of being killed.  He also responded “no” to questions screening for symptoms of depression or posttraumatic stress disorder.  The STRs do not show any complaint, diagnosis, or treatment of a MH condition either prior to the deployment or following the deployment.  The commander’s statement performed on 4 June 2004, noted physical limitations due to back pain but reported that the CI’s “… performance, aside from physical limitations, has been outstanding.”  The VARD performed on 13 June 2005 did not list a claim for a MH condition and did not grant a service-connected rating for a MH condition.  At the time of the MEB history and physical examination on 28 June 2004, the CI reported experiencing panic attacks since his Iraq deployment.  The examiner noted there was no diagnosis.  No MH condition was referred for evaluation in the military DES and therefore this case does not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  At the time of his MEB history and physical examination, the CI reported experiencing panic attacks since his deployment to Iraq however the STRs are silent with regard to complaint, diagnosis or treatment of MH symptoms.  No MH condition was profiled and the commander’s statement reflected only limitations in performance of duty due to the back condition and reported that the applicant’s performance was otherwise outstanding indicating no impairment from any psychological symptoms the applicant was experiencing.  Therefore, there was no evidence of a mental condition that could be considered unfitting and subject to DoD disability rating.  The Board therefore, recommends that there be no change of the applicant’s disability and separation determination.

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 LBP secondary to DDD 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 as unfitting 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131212, 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, AR20150013230 (PD201400346)

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