RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-00992	
BRANCH OF SERVICE: Army 	 SEPARATION DATE:  20051120 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Unit Supply Specialist) medically separated for mechanical low back pain, lumbar degenerative disc and joint disease, coccygodynia, rated at 10%.

CI CONTENTION:  The CI makes an implied request for consideration of all conditions, and specifically references “knees” and post-traumatic stress disorder (PTSD).  The 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 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 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 20051013	VA* - (2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5239	10%	Lumbosacral ... Disc Disease	5243	10%	20060104	
Anxiety Disorder, NOS	Not Unfitting	PTSD w/ Depressive Disorder	9411	50%	20060626	
GERD	Not Unfitting	GERD	7436	10%	20071204	
Bilateral Shoulder and Elbow Overuse Pain	Not Unfitting	Impingement, Right Shoulder	5201	20%	20060104	
		Impingement, Left Shoulder	5201-5010	10%	20060104	
		Bursitis, Right Elbow	5019	10%	20060104	
Other x 0	Other x 9	20060104	
Combined:  10%	Combined:  90%	
*Derived from VA Rating Decision (VARD) dated 20061116 (most proximate to date of separation [DOS]).   Exception is GERD granted by VARD dated 2008012.  Note later rating examination dates for PTSD and GERD.

ANALYSIS SUMMARY:  

Lumbar Spine Condition.  The narrative summary (NARSUM), supplemented by the outpatient service treatment record (STR), documented an onset of low back pain with running in 2000, exacerbated by an additional injury to the coccyx (tip of tail bone) in 2003.  The back pain was associated with bilateral radicular symptoms without subjective weakness, and imaging (MRI and CT) demonstrated degenerative disc disease (L4/5, L5/S1, mild narrowing) and mild (Grade I) spondylolisthesis (slippage of one vertebra over the other).  There was STR confirmation of normal strength and neurological findings with no evidence to the contrary, and surgery was not recommended.  The outpatient STR evidence probative to rating was consistent with that related by the NARSUM, and there was no STR evidence of incapacitating episodes.

The NARSUM was conducted 21 September 2005 (2 months pre-separation) and was preceded by an orthopedic addendum (9 September) from two weeks earlier.  These documented constant low back (radiating to buttocks without sensory or motor complaints) and coccygeal pain prohibiting running and aggravated by prolonged walking, standing and sitting.  The NARSUM (supplemented by the addendum) physical examination recorded a normal gait and spinal contour, tenderness without spasm, and normal neurological findings (5/5 strength).  The NARSUM measured range-of-motion (ROM) was flexion to 65 degrees (normal 90) and combined ROM of 200 degrees (normal 240).  The orthopedic addendum recorded flexion to 70 degrees.  

A VA Compensation and Pension (C&P) examination was conducted 4 January 2006 (2 months post-separation).  The source examination is not available, but the probative evidence from it is documented in the rating decision.  Members agreed that the missing detail would not materially affect the recommendation; thus, no delay for additional attempts at retrieval was warranted.  The cited findings were normal neurologic testing and measured ROM of 80 degrees flexion and 200 degrees combined.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5239 (spondylolisthesis) was consistent with VASRD §4.71a criteria for the Service ROM evidence and other ratable findings.  The VA’s 10% rating under 5243 (intervertebral disc syndrome) referenced the C&P ROM measurements.  There was no ROM evidence supporting a rating higher than 10%, no evidence for abnormal gait or contour to support a 20% rating, no evidence for ratable peripheral nerve impairment which would provide for additional rating, and no documentation of incapacitating episodes which would provide for a higher rating under that formula.  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 of the lumbar spine condition.

Contended Psychiatric Condition.  The CI was deployed to Iraq from April 2003 to March 2004.  The post-deployment health assessment documented combat stressors, but all mental health (MH) and PTSD-directed symptoms were denied and MH referral was not requested.  There were no subsequent entries in the available outpatient STR reflecting complaints or treatment for MH issues.  A psychiatric addendum to the NARSUM was dated 22 August 2005 (3 months pre-separation) and documented a first MH referral on 9 August.  The addendum related a history of sleep disturbance with nightmares and other PTSD-like symptoms after the deployment, but noted that they were improving over time.  At that time, there was residual sleep disturbance, intermittent anxiety, and a “mild increase in his startle response;” but, “symptoms of depression or any manic or psychotic symptoms” were denied as were other criterion symptoms of PTSD.  The mental status examination and cognition were normal with a “euthymic” mood.  The examiner opined that diagnostic criteria for PTSD were not met and forwarded the MEB Axis I diagnosis of anxiety disorder, NOS.  Referencing criteria of AR 40-501, the examiner stated that the CI’s “psychiatric condition is not unfitting for military duty.”  The CI was prescribed anxiety and sleep medications (Lexapro® and trazodone) at that time, and the medication profile confirms that these were the only psychoactive medications dispensed in service.  The CI was not subject to a psychiatric profile at any time on active duty and the commander’s performance statement elaborated only orthopedic impediments to MOS requirements.  

The Board directed attention to its recommendation based on the above evidence; and, its main charge with respect to this condition is an assessment of the fairness of the PEB’s determinations that it was not unfitting.  The Board’s threshold for countering Service fitness determinations is higher than the reasonable doubt standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Although it may be conceded that the CI manifested some MH symptoms at separation, there was no performance based evidence that counters the MEB psychiatric opinion that that there was no MH impairment that would have precluded further service.  There was no clinical evidence for the manifestation or treatment of MH issues preceding the MEB, and there was no performance based evidence of significant MH impairment from the STR or commander.  Members agreed that the evolution of the psychiatric diagnosis to PTSD and the acuity of symptoms resulting in its VA post-separation rating were not supported by the evidence in effect at separation.  After due deliberation in consideration of the preponderance of the evidence, members agreed that there was insufficient cause to recommend a change in the PEB fitness determination for the psychiatric condition.  

Other Contended Conditions (GERD, Bilateral Shoulder/Right Elbow).  There were no entries in the available outpatient STR directed at GERD.  The medication profile listed a single prescription for Zantac® (acid-blocker) in February 2003 as the only gastrointestinal medication, although the NARSUM related current treatment (Aciphex®) for heartburn.  There was no further elaboration in the NARSUM.  There were sporadic STR entries for right elbow and bilateral shoulder complaints with variable histories for the timing and circumstances of onset.  Neither the NARSUM nor the orthopedic addendum provided further elaboration or probative physical findings.  None of the above conditions were profiled in service.  All were forwarded to the PEB as meeting retention standards.  They were not referenced in the commander’s statement and all of the specified physical limitations were consistent with only the spine condition.

The Board directed attention to its recommendations based on the above evidence, with assessment of the PEB’s fitness determinations under the same principles as elaborated for the anxiety condition.  For similar reasons, that there was no performance based evidence suggesting that any of the above conditions significantly interfered with duty performance.  Furthermore, all of these conditions were subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral); which stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  After due deliberation, based on the preponderance of evidence, members agreed that there was insufficient cause to recommend a change in the PEB fitness determinations for the GERD or bilateral shoulder/right elbow conditions.

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 lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended mental health condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  In the matter of the contended gastrointestinal reflux, bilateral shoulder and right elbow 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, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination, as follows:    

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140123, 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, AR20160002565 (PD201400992)

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