RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	     CASE:  PD-2014-00907
BRANCH OF SERVICE:  Army	BOARD DATE:  20151230

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “herniated lumbosacral discogenic disease” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded “depression/generalized anxiety disorder” and “chronic headache” as meeting retention standards.  The Informal PEB adjudicated the back pain as unfit, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  

CI CONTENTION:  “Herniated Lumbosacral Discogenic Desease  (1) unfit for duty. (2)  PTSD symtoms. (depression, anxiety).”  He asked to be reevaluated for PTSD in particular.  His complete submission is at Exhibit A.  

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 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:  

Reconsidered IPEB - Dated 20081021	VA* - (~1 Mos. Pre- Separation and ~3 Mos. Post Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain…	5299-5237	10%	DDD of the L4-5 and L5-S1	5299-5239	10%	20081108	
Depression/Generalized Anxiety Disorder	Not Unfitting	Post-Traumatic Stress Disorder	9411	30%	20090318	
Other MEB/PEB Conditions x 1 (Not in Scope)	Other x 8	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20090205 and 20090901 (most proximate to date of separation [DOS]).  
VARD 20130408 increased DC 9411 to 70% effective 20111122.

ANALYSIS SUMMARY:  

Back Pain.  According to service treatment records and the MEB narrative summary (NARSUM), the CI developed low-back pain in 2006 while conducting missions in the mountainous terrain of Afghanistan, with no specific injury or trauma.  Magnetic resonance imaging of the lumbosacral spine showed multi-level degenerative disc disease (DDD) with possible annular tears involving the discs at the level of L4/5 and L5/S1, however there was no surgical indication.  The range-of-motion (ROM) examinations 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)	MEB PT ~4 Mo. Pre-Sep	VA C&P ~1 Mo. Pre-Sep	
Flexion (90 Normal)	70	90	
Combined (240)	200	240	
Comment	Tenderness	Painful motion	
§4.71a Rating	10%	10%	

The MEB NARSUM exam on 10 September 2008 (4 months prior to separation) noted complaints of constant severe mid- and low-back pain that prevented the CI from performing his occupational specialty.  Physical exam showed thoracolumbar spine tenderness, normal gait and spinal contour, no paraspinal muscle spasm, normal reflexes, and normal strength.  Thoracolumbar ROM after 3 repetitions was limited as recorded in the chart.  

At the VA Compensation and Pension (C&P) examination on 8 November 2008, performed a month before separation, thoracolumbar ROM after repetition was normal as recorded in the chart.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5237 code (lumbosacral strain), citing tenderness, painful motion, and limitation of motion.  The VA also assigned a 10% rating using an analogous 5239 code (spondylolisthesis or segmental instability) based on the, pre-separation exam citing limited and painful motion.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) or tenderness reported on the service exam, or painful motion noted on all exams.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  Although the CI experienced radiating pain, there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There is no evidence in this case that there was radiculopathy with associated functional impairments separately functionally impairing.  The Board therefore concludes that additional disability rating was not justified on this basis.  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 back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the depression/generalized anxiety disorder (contended as PTSD) was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The mental health condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  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 contended 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.  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 pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended “depression/generalized anxiety disorder” condition, the Board unanimously agrees that it cannot recommend it for 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 20140224, 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, AR20160002552 (PD201400907)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA