RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00775
BRANCH OF SERVICE:  Army	BOARD DATE:  20141120
SEPARATION DATE:  20070315

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B/Infantry) medically separated for a 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/S1 profile and referred for a Medical Evaluation Board (MEB).  “Recurrent chronic low back pain (LBP) with intermittent radiculopathy, left leg” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated chronic LBP as unfitting, rated at 10% with application of AR 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Conditions are worsening and affecting my ability to work.  It is not only my physical disability but my mental disability from suffering from PTSD.  My psychiatrist has just put “continue” me only several different types of medication.  I will send a copy of all medicines and medical records so they can be reviewed.  I have tried to work several jobs but am unable to work constantly because of my back or because I will go days without sleep due to things that I can’t forget about.”

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 Board acknowledges the CI’s information regarding the significant impairment with which his medical conditions continue to burden him.  The Board also acknowledges the CI’s contention that suggests a rating should have been conferred for posttraumatic stress disorder (PTSD).  The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  However the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

RATING COMPARISON:

Service IPEB – Dated 20061221	VA* - (2.3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Lumbosacral Strain…	5237	20%	20070621	
No MH Condition Adjudicated	--	PTSD	9411	30%	20070522	
Other x 0 (Not in Scope)	Other x 1 (Not in Scope)	20070522	
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20070621 (most proximate to date of separation)

ANALYSIS SUMMARY:

Chronic Low Back Pain.  Available service treatment records indicated that the CI developed LBP after weight lifting in August 2001.  He experienced a progressively worsening course beginning in 2004, associated with radiation of pain down the left leg and occasional tingling in the left toes.  Chronic pain with episodic exacerbations did not respond sufficiently to physical therapy (PT), medications, epidural steroid injections and nerve blocks.  Neuroimaging showed disc degeneration at L3-4 (mild), L4-5, and L5-S1, small posterior bulges at L4-5, and L5-S1 and mild central canal stenosis (narrowing of spinal canal).  There was no associated surgical indication.

At the MEB narrative summary (NARSUM) examination on 14 September 2006 (6 months prior to separation) the CI reported constant LBP while awake, inability to walk or run long distances, difficulty bending and lifting objects greater than 30 pounds and an inability to wear load-bearing equipment.  He required the use of narcotic pain medication.  Examination showed a normal gait with a somewhat flattened lumbar lordosis.  Paravertebral muscle spasm was present, especially on the left side.  Forward bending caused pain in the left lower extremity (LLE) that radiated to the knee but with a negative sciatic stretch sign (a test for lower extremity radiculopathy).  Strength and reflexes were normal in the LLE.  All range-of-motion (ROM) in the lower back was “40-50% of the normal” with painful motion present at the extremes of motion.

At a VA emergency room (ER) visit for back pain on 20 February 2007 (a month prior to separation), ROM of the lumbar spine was reportedly “full” but measurements were not performed.  The exam was silent regarding gait, tenderness or muscle spasm.  At the VA Compensation and Pension (C&P) examination on 22 May 2007 (2 months after separation) the CI reported progressively worsening LBP, rated 6/10 and radiation of pain to his left leg.  He was not prescribed bed rest in the previous 12 months.  Physical examination revealed a normal gait.  Spinal contour was normal and there was no muscle spasm, pain or weakness.  Repetitive motion did not change the ROM.  Sensation was intact and motor strength was normal.  SLR caused pain on the left side of back at 40 degrees and on the right at 45 degrees.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	Surgery 10 Mos. Pre-Sep	PT 6 Mos. Pre-Sep	VA C&P 2 Mos. Post-Sep	
Flexion (90 Normal)	90	50 (45/47/49)*	60	
Combined (240)	N/A	125	205	
Comment	+Painful motion	+Painful motion	+Painful motion	
§4.71a Rating	10%	20% (PEB 10%)	20% (VA 20%)	
*Measured with bubble inclinometer

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5237 code (lumbosacral strain), while the VA rated the condition 20% under the same code.  Because the PT and C&P exams were closer to the time of separation and they measured ROM in all planes, they were assigned higher probative value than the surgery evaluation 10 months prior to separation.  Likewise, since the VA ER examination did not measure ROM and was silent regarding other ratable information, it held little probative value in the Board’s deliberations.  The limitation of flexion noted on the PT and VA C&P exams supported a 20% rating, but no higher, for forward flexion greater than 30 degrees but not greater than 60 degrees.  The NARSUM exam finding of muscle spasm severe enough to cause abnormal spinal contour also supported a 20% rating.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the criteria for a minimal rating under that formula.  The Board finally deliberated if additional disability was justified for peripheral nerve impairment.  The CI complained of shooting pain into his left leg.  However, there were no complaints of muscle problems and muscle strength was normal.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  The Board therefore concluded that additional disability was not justified on this basis. 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 chronic low back pain condition.

Mental Health Review.  CI was deployed to Iraq from 10 February 2004 to 10 February 2005.  On the post-deployment health assessment, CI reported he was exposed to combat traumas but denied nightmares, avoidance, hypervigilance, or detachment and did not wish to seek help for stress.  A visit to the ER in February 2007 for LBP documented an abbreviated mental status examination (MSE) that was normal.  There were no mental health treatment records in evidence prior to separation.  On the MEB separation physical (DD Form 2807), on 13 June 2006 (9 months prior to separation) the applicant wrote that he had “anxiety and depression on occasions and spells of not sleeping for 2 or 3 days.”  The examiner did not list a MH diagnosis on the DD Form 2808.  An S1 profile was assigned.  The commander’s statement (3 months prior to separation) mentioned only the orthopedic conditions as an impediment to performance of duty.  The NARSUM, the MEB submission and the PEB Form 199 did not mention a MH condition.

The available records were silent about MH care until a psychiatry consultation report for a clinical evaluation of insomnia and periodic dreams, dated 18 April 2007 (a month after separation).  The evaluation confirmed that the CI had served in a war zone from February 2004 to February 2005; and the CI reported he had been seen by MH while still on active duty for similar complaints and was given medication for sleep.  He reported he had periodic dreams of killing people, being captive and being killed.  He averaged 3 to 5 hours of sleep per night and had issues with aggression, anger, and hypervigilance since his return from Iraq.  The examiner rendered a diagnosis of insomnia and adjustment disorder and he was referred to a counselor for supportive therapy.

A C&P exam for evaluation for PTSD (2 months after separation) indicated that the CI had made one visit to the MH clinic, but felt like he needed more treatment.  He was taking no psychotropic medication.  He described combat traumas of killing people and picking up body parts which were sometimes the subject of his nightmares.  He had problems with anxiety, anger, depression, insomnia, guilt, back pain and feeling useless at times.  He was looking for a job because he could not afford school.  He had recently married and had a good relationship with his wife.   MSE was normal. A diagnosis of PTSD was rendered with a Global Assessment of Functioning of 50 (moderate symptoms or impairment).

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the DES.  The evidence of the available records showed no mental health diagnosis was rendered during the DES process.  No diagnosis of any MH condition was forwarded by the MEB or adjudicated by the PEB; therefore the Board determined that this applicant did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The Board next considered whether any mental condition, regardless of diagnosis, was unfitting for continued military service.  The Board’s threshold for recommending a not-unfit determination requires a preponderance of evidence.  All Board members agreed that evidence of the record reflected minimal occupational impairment on the basis of MH related symptoms.  The commander’s statement did not implicate a MH condition as a cause of duty impairment.  At no time during the applicant’s military service did he require a psychiatric hospitalization or emergency care.  No MH condition was permanently profiled or was judged to fail retention standards.  There was no indication from the record that any MH condition significantly interfered with satisfactory duty performance.  The Board therefore concluded that there was insufficient evidence that any MH condition rose to the level of being unfitting at the time of separation.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a determination of unfit for any MH condition; and therefore, no disability rating can be 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.  As discussed above, PEB reliance on AR 635-40 for rating chronic low back pain was operant in this case and the condition was adjudicated independently of that regulation by the Board.  In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 20%, IAW VASRD §4.71a.  In the matter of any contended MH condition, the Board unanimously recommends no additional disability rating.  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, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 201401XX, 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, AR20150007127 (PD201400775)

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,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization 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:

Encl		     

CF: 
(  ) DoD PDBR
(  ) DVA