RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-01131
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20081005

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Human Resources Specialist, medically separated for “intervertebral disk syndrome,” with a disability rating of 20%.  

CI CONTENTION:  Her conditions including, contended PTSD, continue to worsen and negatively impact her daily activities.  Her complete submission is at Exhibit A. 

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20080627	VARD - 20090225	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Intervertebral Disk Syndrome 	5299-5243	20%	Surgical Residuals, Lumbar Spine	5243	10%	STR	
Adjustment Disorder with Depressed Mood	Not Unfitting	Depression	9434	NSC		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Lumbar Spine.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented an onset of back pain after a fall during a deployment to Iraq (October 2005 – September 2006) which was successfully treated in-theater.  A second deployment in 2007 resulted in an early evacuation for back pain.  Pain persisted with bilateral lower extremity radiation, but no sensory or motor symptoms.  Magnetic resonance imaging (MRI) demonstrated disc disease (L4/5 without neural encroachment, L5/S1 with bilateral encroachment) and surgery (L5/S1 microdiscectomy) was performed 11 months pre-separation in December 2007.  This was unsuccessful at restoring functionality within her Military Occupational Specialty and a repeat MRI demonstrated adequate decompression.  Further surgical intervention was not recommended and an MEB was initiated.  Post-operative STR entries documented continued bilateral radiation of pain without subjective weakness or sensory symptoms but neurological examinations and electrodiagnostic testing were normal.  There were multiple pre-operative STR entries documenting grossly normal or modestly decreased range-of-motion (ROM), although there was no probative post-operative outpatient ROM evidence.  There was likewise pre-operative documentation of normal gait and spinal contour without post-operative confirmation.  There was no STR evidence contrary to these ratable findings or documentation of incapacitating episodes after recovery from surgery.
  
The NARSUM was conducted 4 months pre-separation on 27 May 2008 and documented constant pain (with persistent but improved radicular pain) rated 4/5 and interfering with lifting (15 pounds), prolonged standing (20 minutes), and prolonged sitting (1 hour).  The NARSUM physical examination recorded a normal gait and normal neurological findings.  The ROM measurements were flexion to 40 degrees (normal 90), extension 5 degrees (normal 30), and “normal” lateral bending.  Formal ROM measurements for the MEB were performed by physical therapy (PT) a week later and recorded flexion to 75 degrees with a combined ROM of 215 degrees (normal 240).  The CI failed to report for a scheduled VA examination, and there was no temporally probative VA post-separation evidence.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating analogous to 5243 (intervertebral disc syndrome) was premised on the NARSUM flexion of 40 degrees.  The VA’s 10% rating under the same code was also based on the STR evidence and did not clarify the applicable ROM evidence.  The MEB PT evaluation was the only one compliant with VASRD §4.46 (accurate measurement) and was consistent with VASRD §4.71a criteria for a 10% rating.  The PEB’s 20% rating was thus the highest supported by the ROM and other ratable findings in evidence.  The Board then considered whether additional rating could be recommended for the residual radiculopathies at separation. The pain component is subsumed under the §4.71a spine rating and there were no objective motor or sensory impairment in evidence.  Members thus agreed that there was no evidence for significant functional impairment from the radiculopathy, and additional rating cannot be recommended 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 of the lumbar spine condition.

Contended Mental Health Condition.  The Post-Deployment Health Assessment documented the absence of any mental health (MH) symptoms in Iraq or at re-deployment.  All screening questions were answered negatively and no MH concerns or desire for counselling were expressed.  The earliest indication of MH issues in the STR surfaced in the early MEB period for the back condition.  The CI grew increasingly depressed in early April 2008, and in May 2008 she was briefly admitted to a psychiatric facility following an intentional ingestion of her pain medications.  She improved rapidly with follow-up outpatient MH treatment, and multiple later STR entries approaching separation documented that she was off medication (Prozac) and no longer depressed.  The MEB psychiatric consultant documented situational stressors associated with the MEB and relationship issues and noted the resolution of acute MH symptoms and suicidality.  The consult also recorded a normal mental status examination and provided the MEB’s Axis I diagnosis of “adjustment disorder with depressed mood.”  The NARSUM did not document any active MH symptoms or treatment.  The commander’s performance statement addressed only the lumbar diagnosis and specifically noted acceptable cognitive and interpersonal functioning.  The profile remained S-1 throughout service.  VA records reflect that MH symptoms did not re-emerge until over 2 years after separation.  

The STR makes clear that there were no significant MH symptoms present at separation.  The MEB’s psychiatric evaluation was diligent and thorough, and the diagnosis was consistent with the clinical features.  The commander documented good administrative and interpersonal functioning and there was no psychiatric profile.  There was thus no performance based evidence that would support a conclusion that there was unfitting psychiatric impairment.  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 MH condition in this case.

BOARD FINDINGS:  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 MH condition, 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.  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 20140303, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	
MEMORANDUM FOR Commander, US Army Physical Disability Agency (AHRC-00), 2900 Crystal Drive, Suite 300, Arlington, VA   22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXX AR20160006034  (PD201401131)

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
( ) OVA