RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01000
BRANCH OF SERVICE:  Army	BOARD DATE:  20150618
SEPARATION DATE:  20060616

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Military Police) medically separated for back pain.  This condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “degenerative disc disease” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501, no other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated “chronic back pain…” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “His conditions continue to worsen.  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.

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:

IPEB – Dated 20060510	VA* - (~26 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5237	10%	Degenerative Disc Disease	5242	10%	200828	
Other x 0	Posttraumatic Stress Disorder	9411	NSC	
	Other x  4	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20080909 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Lower Back Condition.  The service treatment record (STR) documents that the CI was involved in a motor vehicle accident on 15 October 2004 while deployed to Iraq.  The CI was the gunner in the turret of a stationary Humvee that was struck by a civilian car.  The impact caused him to be thrown into the side of the turret at waist level.  The disabled Humvee was towed back to the base and the CI presented to the battalion aid station.  He was transferred to the base hospital, seen by a physician, and had an X-ray that was reported to be normal.  The CI was released by the physician with “some pain pills” and a muscle relaxant (methocarbamol).  The CI resumed his daily duties and completed his tour.  Upon return to Germany, he received 3 months of physical therapy (PT).  The 15 August 2005 lumbar spine magnetic resonance imaging (MRI) showed minimal to mild disc bulges at L3-4 through L5-S1, articular facet degeneration, and a slight impingement on the left S1 nerve root.  The CI was treated by pain management and experienced no relief from two epidural steroid injections and an anesthetic (lidocaine) patch.  The 17 November 2005 orthopedic surgery encounter recorded “longstanding low back pain without improvement from PT/NSAIDs, some radiation down left leg and required to wear IBA but cannot secondary to pain.”  The physical exam listed spine range-of-motion (ROM) in degrees as:  flexion 70, extension 20, and left/right lateral bending 30.  Straight leg raise tests (assess nerve root compression by a herniated disc by eliciting sciatic nerve pain with the leg between 30 and 70 degrees) were negative.  The bilateral lower extremities showed normal strength (5/5), reflexes (2+), and sensation.  The plain films [X-rays] were reported as normal.  The assessment listed backache.  The 22 November 2005 electrodiagnostic study (electromyogram [EMG - measures electrical activity of muscles] and nerve conduction study [measures electrical signal velocity]) showed no evidence of lumbar radiculopathy (irritation or injury of a nerve root).  The 7 December 2005 orthopedic surgery encounter documented the EMG was interpreted as showing no neuropathy (injury or irritation of a peripheral nerve).  The 27 February 2006 ROM values measured by PT are in the chart.  The 1 March 2006 addendum for the narrative summary (NARSUM) recorded limited exam findings.  The physical exam showed a gait that was steady and not antalgic (assuming a posture or gait to lessen pain).  Heel and toe walk were intact and normal to 50 feet.  The thoracolumbar spine exam noted normal lordosis (anterior spine curvature) with no scoliosis (abnormal lateral spine curvature) or gross deformities.  There was tenderness at the L4 spinous process.  The thoracolumbar ROM values are in the chart below.

The NARSUM, 2 months prior to separation, documented the medical history, studies, and interventions to date.  It recorded the CI “is not able to perform his regular duties because his body armor and even a pistol belt increase his pain.  He is currently working in an administrative job … where he does not have to lift things or wear protective gear.  He cannot perform any events on the APFT because they increase the pain.”  The physical exam showed a normal gait with intact balance.  The extremities showed full ROM and reflexes were equal.  Waddell's signs (psychogenic, or nonorganic, manifestations of pain) were not evident.  The NARSUM cited the ROM values obtained by PT on 27 February 2006.  The diagnosis listed degenerative disc disease (DDD).  The Compensation and Pension (C&P) exam for the spine, 26 months after separation, recounted the medical history and interventions to date.  It documented “currently he has low back pain every day and constant … described as a pressure ache type … averages about a 6/10 … occasionally radiate to both buttocks … never radiates to his legs … has no numbness in his legs.  Standing … or … Walking … [or] … Sitting for 30 minutes aggravates his back.  Stairs … aggravate his back.  He uses no assistive devices. … It interferes with daily activity, with increased walking, standing, sitting, lying down and stairs.  He denies any urinary or fecal incontinence.  He has had zero incapacitating episodes … [and] … has not missed any work in the past year.  He has left work three times in the past year for back pain.”  The physical exam showed a normal gait.  The lumbar spine showed normal curvature with no deformity.  There was no tenderness, muscle spasm, or muscle atrophy.  Straight leg raise tests were negative for sciatic nerve pain but produced low back/lumbar spine pain.  Motor function, reflexes, and sensation were normal.  The lumbar spine ROM, with pain at L4-L5, is listed in the chart.  Active ROM did not produce fatigue or incoordination and there was no additional loss of ROM with repetitive movements (X3).  The 28 August 2008 lumbar spine X-ray was unremarkable.  The diagnosis listed DDD of the lumbar spine, with chronic back pain, and without radicular (radiating) pain.

The ROM evaluations 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)	Ortho ~7 Mo. Pre-Sep
	PT ~ 4 Mo. Pre-Sep
	MEB ~ 4 Mo. Pre-Sep
	
Flexion (90 Normal)	70	70	88	
Combined (240)	#	205	228	
Comment	AO	Pain with flex/ext	AO	
§4.71a Rating	10%	10%	0%	

The Board directed attention to its rating recommendation based on the above evidence.  IPEB, a month prior to separation, rated the lower back condition at 10% (VA code 5299-5237; rating by analogy-lumbosacral strain).  The PEB cited chronic pain, ROM limited by pain, localized tenderness, and without neurologic or electrodiagnostic abnormality.  The VARD, 27 months after separation, rated the lower back condition at 10% (5242; degenerative arthritis of the spine).  The VARD cited minimal lumbar disc bulges by MRI, normal spinal curvature, no muscle spasm, no tenderness, and ROM.  Board members agreed that the limitation of motion in the proximate (orthopedic and PT) exams were consistent with 10% based upon the General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  The ROM in the C&P exam did not attain a minimum rating.  Other routes to a rating higher than the PEB’s 10% were considered, but there was no evidence of additional functional loss from repetitive use to warrant application of VASRD §4.45; and no evidence of incapacitating episodes that would justify a minimum rating under the alternative formula for rating intervertebral disc disease.  The Board agreed a 10% rating was supported based on functional loss (§4.40) or painful motion (§4.59).  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 lower back condition.

Contended Mental Health Condition.  The Board considered the MH condition regarding appropriateness of changes in diagnoses and fitness determination in accordance with the special mental health review project.  No MH diagnosis was listed on the MEB referral sheet and none was considered by the PEB.  The Board considered whether a MH diagnosis was inappropriately eliminated during the Disability Evaluation System (DES) process.  In the 16 March 2005, post-deployment health assessment questionnaire, the CI exposure combat and symptoms of depression, and PTSD.  He also stated he did not seek any MH counseling.  At the time of processing through the DES, anxiety and depressive symptoms were first commented on during the MEB history and physical examination performed on 1 March 2006.  The physician annotated that he had not been to the Behavioral Health Clinic and the only problem was insomnia, but noted there was a positive family history.  Other than this superficial reference, the STR was silent with regards to MH symptoms or treatment.  In accordance with the DoD MH Review Project, the Board considered the appropriateness of any changes in the MH diagnoses, PEB fitness determination, and if unfitting whether the provisions of VASRD §4.129 were applicable, and a disability rating recommendation in accordance with VASRD §4.130.  The Board concluded that no MH condition was referred into the DES, and that no MH condition was inappropriately eliminated from referral into the DES.  Therefore, the case does not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board found no documentary evidence to support a diagnosis of anxiety, depression, or PTSD prior to separation.  No MH symptoms were implicated in the commander’s statement and no MH condition was profiled.  The Board concluded that the preponderance of evidence did not support an unfit determination for any MH condition at the time of evaluation in the DES or prior to separation.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend addition of any mental health condition as a separately unfitting condition for rating.

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 lower back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the MH condition, the Board unanimously agrees that it cannot be recommended 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 20140124, 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, AR20150013362 (PD201401000)

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:

Encl		
						         
CF: 
(  ) DoD PDBR
(  ) DVA