RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00651
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20031120

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-4 (Medical Equipment Repairer) medically separated for “low back pain (LBP) diagnosed as spondylosis and degenerative disc disease (DDD)” as unfitting, rated 10%.

CI CONTENTION:  “At the time of the Army medical board in 2003 l was told that I would only be rated for the "back issue" even though I had additional problems. I was told that no other issues would be taken into account.  I have and continue to have debilitating headaches as well as constant pressure and ringing in left ear. I have been told by the VA that because headaches and ringing were not part of the original rating I can't be rated for them.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 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 Veterans Affairs Schedule for Rating Disabilities (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. 

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:

Service IPEB – Dated 20031009	VA - (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain diagnosed as Spondylosis and Degenerative Disc Disease	5299-5295	10%	Herniated Disc, L5-S1 w/Radiculopathy	5299-5243	10%	20040123	
			Left Lower Extremity Radiculopathy	8520	10%	20040603	
Attention Deficit Hyperactivity Disorder	Not Unfitting	No VA Entry				
Cervicogenic Headaches	Not Unfitting	No VA Entry				
Other x 0 (Not in Scope)	Other x 1	20040123	
Rating:  10%	Rating:  20%	
Derived from VA Rating Decision (VARD) dated 20040511 and 20040622 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Pain.  The narrative summary (NARSUM) noted the CI had a history of back pain since May 2001, with intermittent treatment for LBP.  The back injury, which the CI sustained in May 2001 while at a week-end Reserve drill, was determined to be in the line of duty.  A note in the service treatment records indicates that at an evaluation by a civilian physician on 15 January 2003, 8 days prior to mobilization, the CI reported LBP with radiation to the right groin going on for years and the examination noted only slight low back muscle tenderness.  The examiner prescribed anti-inflammatory medication for both back and ankle pain and stretching exercises for the back.  Approximately 2 weeks after activation, lumbar spine X-rays noted minor scoliosis and decreased range-of-motion (ROM) of the upper lumbar spine without instability or other abnormalities.  Orthopedic evaluation performed on 11 February 2003 noted reported LBP with left lower extremity (LLE) radiation for more than a year.  Lumbar spine magnetic resonance imaging performed on 10 March 2003 noted DDD and spinal arthritis, with a broad based disc bulge that contacted the S1 nerve roots.  Notes in the record indicated that the CI sometimes reported pain radiating to the right groin/LE and at others to the left groin/LE, without associated LE sensory disturbances or weakness.  Two commander’s statements performed on 30 May 2003 and 18 August 2003, implicated the physical limitations due to the back condition and associated pain as impairing full duty performance, especially lifting, running and jumping restrictions.

At the MEB examination performed on 14 August 2003, approximately 3 months prior to separation, the CI reported LBP, aggravated by activity.  The MEB physical exam noted tenderness to palpation (TTP) of the lumbosacral region without muscle spasm or spinal deformity.  ROM was flexion of 60 degrees (normal 90 degrees), with a combined ROM of 170 degrees (normal 240 degrees), with painful motion.  Straight leg raise (SLR) testing was negative.  Sensation was decreased in the anterior left thigh (L4 dermatomal area), the right ankle reflex was decreased compared with the left and LE strength was normal.

At the VA Compensation and Pension (C&P) general examination performed on 23 January 2004, approximately 2 months after separation, the CI reported LBP that does not cause any incapacitation and that he had not lost any time from work.  The CI also reported bilateral LE nerve symptoms of tingling, numbness and weakness that did not result in functional impairment or lost time from work.  On examination there was no tenderness, muscle spasm, or radiating pain on movement.  SLR testing was negative bilaterally.  Lumbar ROM was flexion of 46 degrees and combined ROM of 170 degrees.  LE strength and sensation were normal and reflexes were present and equal bilaterally.  At the VA C&P spine examination performed on 3 June 2004, approximately 7 months after separation, the CI reported back pain with recurrent LLE radicular pain, numbness and tingling (S1 distribution).  The CI reported 5 days of lost work time in the past 12 months.  The examination showed an antalgic gait.  There was no TTP, spasm or abnormal spinal curvature.  The examiner described ROM as “21 inches from toe touching” and noted flexion of 40 degrees caused pain, with combined ROM of 140 degrees.  SLR was positive bilaterally.  The CI was able to heel and toe walk and LE strength was normal, with equal reflexes bilaterally.  Sensation was decreased in a LLE in a dermatomal distribution (L5-S1-“sciatica”).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5299-5295 (analogous to lumbosacral strain) according to the VA Schedule for Rating Disabilities (VARSD) spine rating rules in effect prior to 26 September 2003.  The PEB indicated the low back condition EPTS, but made no EPTS deduction.  The VA noted the condition met the 20% rating but rated it rated it 10%, coded 5299-5243 (analogous to intervertebral disc syndrome) according to the current VASRD spine rating rules in effect at the date of separation.  The VA provided a pre-service percentage of 10% IAW 4.22 (rating of disabilities aggravated by active service) noting the PEB indicated it was EPTS and that one month into the recent active duty period the CI was placed on a temporary profile.  The later VARD dated 22 June 2004 also rated the LLE radiculopathy 10%, coded 8520 (incomplete paralysis of the sciatic nerve).  IAW DoDI 6040.44 the Board must make a rating recommendation based upon the VASRD rules for rating the spine in effect at the date of separation.  The Board agreed that the evidence in record supports the 20% rating based upon thoracolumbar (TL) flexion “of greater than 30 degrees but not greater than 60 degrees” and did not meet the next higher evaluation of 40% specified as TL flexion “of 30 degrees or less.”  The Board deliberated if a pre-service rating should be assigned in this case.  However, the condition was incurred during a prior period of duty and determined by the service to be in the LOD, noted by the PEB.  Therefore, IAW DoDI 1332.38, E3.P4.5.3 (prior service impairments) the Board does not recommend an EPTS rating deduction.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low back condition.

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported symptoms of back pain that radiated at times to the left and at other times to the right groin area/LE.  Evaluations in the STR, the MEB examination, and the two post-separation C&P examinations corroborated the reported variable radicular symptoms with normal sensation noted in the STR, decreased sensation of the LLE in a limited L4 distribution at the MEB examination and normal LE sensation bilaterally, followed by decreased sensation of the LLE in an S1 distribution at the two C&P examinations, and normal strength at all examinations.  Radiating pain from the back condition is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates)…”  Therefore the critical decision in this case is whether or not there was a significant sensory deficit which would impact military occupation specific activities.  There is no evidence in this case that the variably noted decreased sensation could be described as functionally impairing.  The two commanders’ statements implicated limitations due to the back and associated pain and did not note any performance impairment due separately to LE weakness or loss of sensation.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the headache (HA) condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  

Headache Condition.  There were no evaluation or treatment notes for the HA condition in the available records.  The MEB NARSUM noted a past medical history of daily HA thought possibly related to a pinched nerve in the neck.  Physical examination was unremarkable except as noted in the low back discussion.  The VA C&P general examination noted back pain that traveled to the base of the neck.  There was no mention of past or current headaches.  The VA C&P spine examination did not note any neck pain or HA.  The original VARD did not address any cervical spine or HA condition.

The HA condition was not profiled, implicated in the commander’s statement, or judged to fail retention standards and there was no performance based evidence from the record that the 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 HA condition and so no additional disability rating is recommended.

Contended Mental Health (MH) condition.  Although the CI elaborated no contention related to any MH condition, he was notified that he was eligible for review under the stipulations of the MH Review Project as elaborated in the Scope and accordingly, the case file was reviewed for potentially unfavorable diagnosis change or elimination, fitness determination, applicability of VASRD §4.129, and rating (via §4.129 or §4.130 as appropriate) of any MH condition diagnosed prior to separation.  There were no visits for MH treatment or evaluation noted in the records available.  The DD Form 2808, Report of Medical Examination, dated 15 July 2003 noted an MH diagnosis of depression.  The MEB NARSUM noted the CI was taking an anti-depressant medication (Paxil) for adult ADHD.  An MEB psychiatric addendum noted the CI was referred to MH during his MEB process due to the history of taking anti-depressant medication for depression.  The examiner noted that the CI was seen once before in the MH clinic for refill of his medication.  The CI reported being first prescribed anti-depressant medication in 1997, but had to stop after 6 months when he was demobilized.  He was again prescribed medication since 2002 for symptoms of poor concentration, social anxiety, and brief periods of intermittent depression symptoms.  The psychiatric examiner noted “neither the depression nor anxiety symptoms are severe enough to interfere with significant areas of his life.”  Psychological testing did not identify significant clinical problems and the mental status examination was normal except for noted decreased auditory and visual short term memory.  The recommendation is excerpted below:

The symptoms of mild anxiety and mild depression do not meet the criteria for a clinical syndrome.  The diagnosis of ADHD is valid but does not significantly interfere with the patient’s job performance, and, therefore, does not warrant him unfit for military service.  His medication has been effective for him largely in his civilian life.  His psychiatric diagnosis is not reason for a Medical Board, and a profile is not rendered.  His psychiatric condition will not negatively impact on his social and industrial adaptability….

The MEB forwarded ADHD to the PEB, which adjudicated the ADHD as not unfitting.  The original VARD did not address any MH conditions and the most recent VARD in the records dated 16 August 2012 does not indicate that any MH conditions had yet been rated or addressed by the VA.

The Board directed attention to its recommendations based on the above evidence.  The Board reviewed the records for evidence of inappropriate changes or elimination of diagnosis of the MH condition during processing through the DES and found the DD Form 2808 (performed by a non-MH provider) listed a MH diagnosis of depression and recommended an MEB MH consult.  The MEB psychiatric evaluation indicated the CI had no MH diagnosis other than ADHD, despite mild symptoms not meeting criteria for diagnosis of anxiety or depression, and the MEB forwarded ADHD to the PEB.  Therefore, this case appeared to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The MH condition was determined to be not unfitting by the PEB.  The Board’s threshold for countering PEB not-unfit determinations requires a preponderance of evidence.  No MH condition was profiled or implicated in the commander’s statement, or judged to fail retention standards.  There was no indication from the record that any MH condition significantly interfered with satisfactory duty performance.  The Board noted that even if ADHD was recommended as unfitting, IAW DoDI 1332.38, enclosure 5, it is a condition that does not constitute a physical disability and is not eligible for service disability rating.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient evidence to recommend any MH condition as unfitting and, therefore, no disability rating can be recommended.

BOARD FINDINGS:  In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended HA and MH conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

 CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5243	20%	
Attention Deficit Hyperactivity Disorder	Not Unfitting	
Headache	Not Unfitting	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140129, 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, AR20160003384 (PD201400651)

1.  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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

CF: 
(  ) DoD PDBR
(  ) DVA