RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00719
BRANCH OF SERVICE:  Army	BOARD DATE:  20150212
SEPARATION DATE:  20061019

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Army E-5 (Logistics Specialist) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  However, her profile allowed for alternate aerobic events to satisfy physical fitness standards.  She was issued a permanent L3S1 profile and referred for a Medical Evaluation Board (MEB).  The back condition characterized as “degenerative disc disease” and “sacroilitis” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded posttraumatic stress disorder (PTSD) as medically acceptable for PEB adjudication.  The PEB adjudicated “chronic pain, due to lumbar fusion x 2 and sacroilitis with muscle spasm and antalgic gait” as unfitting, rated 20% with likely application of the of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  PTSD was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION: “The rating of 20% I received justifying my medical discharge from the military should be increased for several reasons.  Upon my discharge from the Army, less than a month later the VA granted a combined rating of 80% and if this rating was granted, obviously the severity of my disabilities were extreme.  I was not rated for PTSD from the Army on my medical board but I have had two ratings since being discharged, the first at 30% and the second evaluation increased to 70%.  The disabilities I have been rated for has deemed me unemployable because of the severity of each disability and this along with the increase of disabilities so soon after medical discharge, provides the evidence that the rating of 20% should be changed, increased.”

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 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. 

RATING COMPARISON:

Service IPEB – Dated 20060727	VA* - (1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Fusion x 2 and Sacroilitis	5241	20%	S/P Lumbar Disc Herniation…	5241	40%	20060927	
			Radiculopathy LLE	8520	10%	20060927	
PTSD	Not Unfitting	PTSD	9411	30%	20061003	
Other x 0 (Not in Scope)	Other x 11	
Rating:  20%	Combined Rating:  80%	
Derived from VA Rating Decision (VARD) dated 20061101 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Pain, Due to Lumbar Fusion x 2 and Sacroilitis with Muscle Spasm and Antalgic Gait.   The CI first had low back pain (LBP), which was not associated with antecedent trauma, in early 2001.  She was managed conservatively with duty restrictions and medications.  Her pain persisted which lead to a magnetic resonance imaging (MRI) on 6 September 2002 which was significant for a tear and bulge of the L5-S1 disc.  She continued conservative management as well as injections without resolution of her pain.  She subsequently underwent a discectomy and fusion at L5-S1 on 15 September 2004.  She had a good surgical result, but despite rehabilitation, her LBP persisted.  On 26 April 2005 another MRI showed a recurrent herniated disc at L5-S1.  However, the narrative summary (NARSUM) noted that the disc was at L4-5 and a second fusion was accomplished at this level on 14 November 2005.  Regardless, it is clear the CI had two operations on her back.  She again underwent rehabilitation, but was not able to return to full duty and was referred for an MEB.

At the MEB examination on 3 March 2006, 4 months after her surgery and 7 months prior to separation, the CI reported numbness and tingling down her left and sometimes her right leg due to her back problems.  The examiner noted that her range-of-motion (ROM) was limited by pain in all planes, but that her gait was normal.  Provocative testing for nerve root irritation was negative.  Her ROM measurements in physical therapy that day, recorded an average of 10 degrees of flexion and 5 degrees of extension, markedly reduced by pain, and were essentially normal for side bending and rotation.

The NARSUM was dated 5 July 2006 and dictated by one of the orthopedic surgeons.  The CI reported she had increased pain in the right buttock thought to be secondary to inflammation of the sacroiliac joint (SIJ; between the back and the pelvis).  On examination, she had difficulty standing and walking as well as rising from a chair.  Spasm was present in the paraspinal muscles.  Provocative testing for nerve root irritation was positive on the left, but negative on the right.  She also had positive testing for SIJ irritation.  Her reflexes were normal as was her strength other than the left hamstrings which were reduced at 4/5.  No comment was made on the sensory examination.  She was thought to have lumbar DDD status post fusion of L4-5 and L5-S1 and sacroiliitis, status post lumbar fusion.  No comment was made on her gait.  It was noted on review of the X-rays that the hardware was in good position and that her fusion “appears to be progressing reasonably well.”  The surgeon further noted “While her fusion continues to evolve, I’m hopeful that she will improve in her symptoms.  She has not yet reached a steady state in her symptoms, but is unable to run and unable to rucksack.”  “She will continue to have consolidation of her fusion.”

The CI was seen in follow-up for abdominal pain a week later on 12 July 2006 and noted to be in no acute distress.  On examination of her back, the only comment was for tenderness on the right side near the junction of the ribs and the bottom of the thoracic spine.

At the VA Compensation and Pension (C&P) examination performed on 27 September 2006, a month prior to separation, the CI reported LBP as well as left knee and ankle pain.  She stated the back pain precluded walking extended distances (not defined), but denied incapacitation.  She also reported trouble with stairs, running, and sitting for prolonged periods of time.  She used a lumbar support 3-4 hours a day with benefit.  On examination, she walked with an antalgic gait, favoring the right while guarding the left.  There was no atrophy and the posture was normal.  Spasm was not documented.  ROM was recorded at 30 degrees flexion and 30 degrees extension.  Painful motion was also noted for the left knee and both ankles.  However, the abnormal gait was attributed to her lumbar spine condition by the examiner.  The neurological examination was normal.  She was thought to have surgical residuals of the lumbar spine, left knee pain, and chronic bilateral ankle sprains.

The VA also performed a second C&P for the spine 13 months after separation on 15 November 2007, that documented 80 degrees of lumbar flexion, which decreased to 60 degrees on repetition, and no evidence of incapacitation related to her back condition.  This is slightly outside the normal 12-month period for higher probative value, but both the PEB and initial VA examinations were within a year of surgery and further improvement was anticipated by the treating surgeon in the NARSUM which was dated 3 months prior to separation.  The CI reported ongoing problems with her back without improvement in her pain.  She was limited to walking about 1 block or 15 minutes and could only drive for 2 hours.  She endorsed the use of a brace, but it was not recorded how often.  She was able to accomplish the activities of daily living.  Incapacitation was not recorded from her back, but she did report incapacitating pain in the left lower extremity which was almost daily and lasted all day.  On examination, her posture and gait were normal.  She was tender over the entire lumbar spine.  Provocative testing for nerve root irritation was positive bilaterally.  Sensation was abnormal with absent touch and pain sensation over the S1 dermatome bilaterally.  Motor function was normal without atrophy.  The left ankle reflex was absent as were both knee reflexes.  Spasm was not documented.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both used the code 5241 (spinal fusion), but rated it 20% and 40%, respectively.  The higher rating of 40% under the 5241 code requires forward flexion of the thoracolumbar spine of 30 degrees or less.  Both the PEB and VA adjudicated the lumbar fusion and sacroiliitis as a single condition for rating purposes.  The Board is required to evaluate ROM based on the Veterans Affairs Schedule for Rating Disabilities (VASRD) and its’ directive.  The VA rates limitation of motion due to pain at the point in which the examinee can no longer continue the motion.  The Board discussed the C&P’s recorded ROM forward flexion of 30 degrees, a month prior to separation, and observed this represented an improvement over the 10 degrees of flexion obtained at the MEB, 7 months prior to separation.  Board members acknowledged the back condition appeared to have improved significantly after separation; however, at the time of separation, the CI met the 40% rating criteria.  The Board also considered code 5243 (intervertebral disc syndrome); however, this code did not support a higher rating since there was no evidence of incapacitating episodes of at least 6 weeks duration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 40%, coded 5241 for the back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that PTSD 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.  PTSD was not profiled or implicated in the commander’s statement.  It was not judged to fail retention standards.  The Board undertook a careful review of the available treatment records and noted in the 12 months prior to separation there were 18 visits to the therapist.  Of the 18 visits, 3 focused on PTSD related symptoms of “dislike for Arab people,” nightmares of the war, and angry feelings.  The treating psychologist submitted a memorandum to the PEB that specifically noted the PTSD condition met retention standards, and his opinion was endorsed by the chief of psychiatry.  Her Global Assessment of Functioning (GAF) score was in the moderate symptoms range at the time of separation and the record demonstrated GAF score in the mild range in the weeks following separation.  The PTSD condition was reviewed and considered by the Board.  There was no performance based evidence from the record that PTSD 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 PTSD condition and so no additional disability rating is 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 back condition, the Board recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a.  In the matter of the contended PTSD conditions, 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 recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Pain, Due to Lumbar Fusion…	5241	40%	
RATING	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140203, 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 XXXXXXXXXXXXXXX, AR20150011014 (PD201400719)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.
	
	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:

Encl		
						
CF: 
(  ) DoD PDBR
(  ) DVA