RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00495
BRANCH OF SERVICE:  Army	BOARD DATE:  20141209
SEPARATION DATE:  20061012

SUMMARY OF CASE:  The evidence of record indicates that this covered individual (CI) was an active duty SGT/E-5 (63H/Track Vehicle Repairer) medically separated for low back pain (LBP).  This condition did not improve adequately to meet the 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 back pain condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  One other condition (adjustment disorder with depressed mood) was also forwarded for PEB adjudication.  The PEB found the back pain condition unfitting, rated at 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The adjustment disorder was found not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Condition has worsened, and I do what I can to cope and survive.”

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 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.  Since the CI responded to this mailing, it is presumed that he elected review of the MH condition, though he did not specifically contend for it on 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 any 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 back condition and adjustment disorder with depressed mood condition is addressed below.  No other conditions are within the defined purview of the Board.  Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – 20060830	VA – (~2 weeks Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5242	10%	Lumbar Spine Condition	5242	10%	20060927	
Adjustment Disorder	Not a physical disability	Adjustment Disorder	9440	10%	20061020	
Other x 0 (Not in Scope)	Other x 0	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20070418

ANALYSIS SUMMARY:

Low Back Pain (LBP).  This CI has a long history of LBP.  There was no specific trauma or injury associated with the onset of LBP.  An magnetic resonance imaging (MRI) showed degenerative changes, with some disc protrusions and mild compression of the thecal sac.  He was seen by neurosurgery and conservative treatment was recommended.  Repeat MRI in March 2006 showed degenerative disc disease with near borderline spinal stenosis and mild foraminal narrowing.  The CI was treated with physical therapy (PT), chiropractic manipulation and medications.  However, the LBP persisted and an MEB was initiated.  The MEB narrative summary on 11 August 2006, the CI reported constant LBP, with some radiation to the left leg.  Physical exam revealed paraspinous muscle spasm, with mild tenderness to palpation.  Straight leg raise (SLR) was negative and neurological exam (motor and sensory) was normal.  Range-of-motion (ROM) was measured by PT and is summarized in the chart below.

A VA Compensation and Pension (C&P) exam on 27 September 2006 (2 weeks prior to separation), the CI reported difficulty with lifting, bending and sitting for a prolonged period.  However, walking was not affected.  On physical examination, posture and gait were normal and SLR on the left caused pain in the left leg and back.  Muscle strength was equal bilaterally.  Thoracolumbar ROM was normal. The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB/PT ~ 3 mos. Pre-Sep
(20060706)	VA C&P ~ 2 weeks Pre-Sep
(20060927)	
Flexion (90 Normal)	80	90	
Combined (240)	195	240	
Comment	Painful motion	Painful motion	
§4.71a Rating	10%	10%*	
	*10% based on VASRD §4.40 (Functional loss), and §4.59 (Painful motion)

The Board carefully reviewed all available evidence, and directed attention to its rating recommendation.  The Army PEB and the VA chose different coding options for the LBP condition, but both assigned a 10% disability rating.  The Board noted the data from the back exams which are documented above.  The CI’s back condition clearly improved during the period from July 2006 to September 2006.  The September 2006 C&P exam was just 15 days prior to separation and therefore had greater probative value.  At that exam, thoracolumbar ROM was normal.  The Board determined that the CI’s painful back condition was essentially non-compensable based on the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine.  However; IAW VASRD §4.40 (functional loss) and §4.59 (painful motion), when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled.  A 10% rating is warranted when there is satisfactory evidence of functional loss and disability due to painful motion.  There was no path to a higher rating since there was insufficient evidence of a significant back abnormality that would justify a higher rating.
The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  Although the CI had neurological symptoms there was no performance-based evidence that the neurological condition impacted his military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the LBP condition.
 
Mental Health (MH) Condition.  The CI initially began having mood symptoms while assigned to Korea; he reported having marital problems.  He also reported LBP and as his back pain became worse, so did his mood symptoms.  The MH condition was diagnosed as adjustment disorder with depressed mood, and he was treated with anti-depressant.  In August 2006, the CI received an MEB psychiatric evaluation.  He reported depressed mood, anxious mood, poor sleep, low energy level, increased appetite and mood irritability.  The CI believed that he would not have any mood issues if he did not have back pain and marital problems.  He indicated that his work performance was only limited by his physical limitations, and his MH symptoms were not impairing his military duties.  On mental status exam (MSE), the CI was dressed appropriately.  His demeanor was anxious but cooperative.  Eye contact was good.  Speech showed a mildly increased rate and rhythm.  Tone and volume were normal.  The CI was tangential and had to be re-directed to answer questions directly.  Affect was animated and mood was mildly anxious.  Thought processes and thought content were normal.  Insight, judgment, and cognition were good.  The CI had had previous suicidal/homicidal ideations, but none were present at the time of the MSE.  The examiner’s assessment was: adjustment disorder with depressed mood.  The CI was told to follow-up as needed.

The CI separated from service on 12 October 2006.  A week later on 20 October 2006, he had a MH C&P exam.  The CI reported that he could not stop thinking about his divorce and felt guilty over the breakup of his family.  The anti-depressant medication was helping, but he was still having trouble with insomnia.  He also reported considerable financial stress.  The CI was planning to move to Houston and become certified in auto body repair.  On MSE, his mood was sad and affect was appropriate.  There were no suicidal/homicidal ideations, delusions or thought disorder.  There was no evidence of cognitive or memory impairment.  He was capable of all activities of daily living.  Rate and flow of speech was normal.  The examiner’s assessment was: adjustment disorder with depressed mood, associated with divorce.  The Global Assessment of Functioning score was 60, indicating mild to moderate difficulty in social or occupational functioning.

Once again the Board carefully examined all available evidence.  The Board determined that the CI’s MH diagnosis was not changed to his possible disadvantage during the DES process.  The Board therefore concluded that this case did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board then considered the appropriateness of the PEB adjudication of the MH condition, as not constituting a physical disability.  The Board affirmed that the Army PEB was correct in that assertion, IAW the DoDI 1332.38 which was in effect at that time.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board could not find sufficient cause to justify a change in the PEB adjudication of the MH condition.  The Board concluded therefore that the MH condition could not be recommended for disability rating.

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 §4.40 and §4.59, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the MH condition, the Board unanimously recommends no change from the PEB determination as not constituting a physical disability.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends no re-characterization of the disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140114, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 AR20150007088 (PD201400495)

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						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA