RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00426
BRANCH OF SERVICE:  army	BOARD DATE:  20140826
SEPARATION DATE:  20090114

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (63B1O/Wheeled Vehicle Mechanic) medically separated for back condition.  This 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).  Lumbago, characterized as “does not meet retention standards” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 to the PEB.  The MEB also identified and forwarded five other conditions to include anxiety disorder.  The Informal PEB (IPEB) adjudicated lumbar strain as unfitting rated 20%, with application of the VA 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:  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.  In addition, the CI was notified by the Army that his case may be 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 during that process.  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.  The rating for the unfitting back condition is addressed below along with the contended MH condition.  The not-unfitting hyperlipidemia; hypertension; patellofemoral syndrome and pes planus conditions were not contended and, thus are not within the DoDI 6040.44 defined purview of the Board.  These, and any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20081105	VA* - (6 Days Pre to 2.9 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Strain	5237	20%	DDD, L2-S1	5243	20%	20090108	
			Lumbosacral radiculopathy, RLE	8520	0%	20090108	
Anxiety Disorder	Not Unfitting	PTSD	9411	30%	20090410	
Other x 4 (Not in Scope)	Other x 6 (Not in Scope)	20090108	
Combined:  20%	Combined:  60%	
*Derived from VA Rating Decision (VARD) dated 20090509 (most proximate to date of separation (DOS))

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.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Lumbar Strain.  The CI reported he first experienced low back pain (LBP) in August 2007 during deployment to Iraq.  While riding in the gunner hatch he was exposed to multiple improvised explosive device blasts and was tossed around, hurting his back.  He developed constant, sharp LBP and radiating down to the right toes.  The pain ranged from 5-7 out of 10 and was worse upon standing too fast or too long and was worse on running.  At sick call, back strain was diagnosed and treated with pain medications.  Pain persisted after return from deployment.  CT scan and magnetic resonance imaging revealed bulging discs at L2-L3, L3-L4, L4-L5 and L5-S1 with severe foraminal narrowing at L5-S1.  Orthopedics was consulted and surgery was considered.  CI chose treatment with pain medication, physical therapy, decreased activity and muscle relaxants but they did not completely relieve the pain.  He received a L3 physical profile because of LBP with lumbar radiculopathy and was referred for MEB.

At the MEB narrative summary examination dated 19 September 2008, approximately 4 months prior to separation, the CI reported he was unable to run, to play any sports or conduct any strenuous activities.  He could perform activities of daily living, could walk though he tired more easily and had constant right sided back pain (graded 4 on a scale of 1 to 10).  The pain was worse upon arising and was in the paraspinal musculature of the lower right side of the back but improved a little with stretching and little activity.  He was taking medication for pain and muscle relaxation, but they did not eliminate the pain.  Physical examination noted he walked with a non-antalgic gait, moved slowly, had a well-muscled back and lower extremities without atrophy.  Waddell sign was positive (pain in paraspinal muscles of right lower back on whole body rotation).  Once completely relaxed, the straight leg test was negative.  He denied radiating pain from the back down the legs into the calf or foot upon flexing the legs to over 60 degrees.  The diagnosis was lumbago.

At the VA Compensation and Pension (C&P) exam dated 8 January 2009, approximately 6 days prior to separation, the CI reported grade 8 on a scale of 1 to 10 LBP that was daily, constant, worse with bending, prolonged standing or lifting and sometimes radiated down the posterior right leg.  Naprosyn 500 mg twice a day and rest were the current treatments.  He used orthotic inserts for walking.  The physical examination of the lumbar spine revealed spasm of the right paravertebral muscles, no spinal ankylosis, positive straight leg raise and no abnormalities of the motor, sensory and reflex examinations.  He had two incapacitating episodes during the previous 12 months and they lasted 2-3 days.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the lumbar strain condition as unfitting with a service disability rating of 20% coded 5237 (lumbosacral strain).  The VA rated the degenerative disc disease condition, L2 –S1, with a disability rating of 20% and coded 5243 (intervertebral disc syndrome); additionally, degenerative arthritis of the spine and lumbosacral radiculopathy, right lower extremity was coded 8520 (sciatic nerve) at 0%.  There was no evidence of ankylosis or forward flexion of 30 degrees or less for a 40% disability rating under the General Rating for Diseases and Injuries of the Spine.  The Board also considered whether criteria for a higher than 20% rating had been met under VASRD code 5243.  There was no evidence of acute pain due to intervertebral disc diseased that required bed rest prescribed by or treatment by a physician.  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 pain condition.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

Anxiety Disorder.  At the VA C&P exam for mental disorders performed on 13 January 2009, approximately a day prior to separation, the CI reported he served in an active combat zone in Iraq from October 2006 to December 2007 as a gunner.  He used a weapon against the enemy, handled and saw dead bodies and was fearful for his life but reported experiencing no trauma.  Symptoms occurred shortly after his return.  They included anxiety, chronic back pain, sleep disturbance, decreased appetite, tearfulness and feeling distant from others.  He was not involved in therapy and had no medications on file.  The mental status examination (MSE) was normal.  The CI reported mild-moderate impairment in some activities of daily living, e.g. chores, shopping, recreation but no impairment in family relationships and occupation/career.  The examiner noted the CI met DSM-IV criteria for anxiety disorder, not otherwise specified (NOS); however, no impairment was found in occupational function and a mild impairment was noted for the social function.  The CI was diagnosed with anxiety disorder NOS with a Global Assessment of Function (GAF) 70.

At the VA C&P exam performed on 10 April 2009, approximately 3 months after separation, CI reported he had a posttraumatic stress disorder (PTSD) clinic intake on 18 February 2009 and was diagnosed with PTSD.  He was taking Paroxetine for anxiety and depression and Ambien for sleep.  He endorsed a history of a suicide attempt, reporting when he was 14 he attempted to smother himself.  He also admitted to being in bar fights and choking his wife after his return from Iraq.  He said he had one panic attack while in the military.  The MSE was unremarkable except that he was noted to be restless and sarcastic.  He endorsed PTSD symptoms of recurring, intrusive thoughts, avoidance, loss of interest in activities although he loves to fish, feelings of detachment, flashbacks twice/week, daily irritability and sleep difficulties.  He was unemployed for less than a year, because he was waiting to go to school that August to learn how to fix computers.  PTSD was diagnosed with GAF of 55.

All available evidence was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the depression symptoms and insomnia conditions significantly interfered with satisfactory duty performance.

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military DES.  No mental condition was ever profiled.  The evidence of the available records shows that prior to and at the time of processing through the DES the only MH diagnoses rendered were anxiety disorder NOS and PTSD, but PTSD was not forwarded by the MEB.  Therefore, the CI meets the inclusion criteria in the Terms of Reference of the MH Review Project.  All Board members agreed that the preponderance of evidence did not support an unfit determination for a MH disorder.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that in the absence of any MH condition that significantly interfered with social and occupational functioning,  there was insufficient cause to recommend a fitness determination for any MH condition and so 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.  In the matter of the lumbosacral strain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the MH review, the Board unanimously agrees no MH rose to the level of unfitting and therefore, cannot recommend an 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 20140115, 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, AR20140019323 (PD201400426)

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