RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-01209
BRANCH OF SERVICE:  Army	 SEPARATION DATE:  20090518 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Water Treatment Specialist, medically separated for “low back pain,” with a disability rating of 10%.  

CI CONTENTION:  The CI’s condition continues to worsen and negatively impacts daily activities.  The CI’s 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 based upon a 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 IPEB –20090127	VARD - 20090611	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5241	10%	Status Post Lumbar Fusion with Surgical Plate with Screws Involving L5-S1	5241	20%	20090316	
Major Depression	Not Unfitting	Depressive Disorder, NOS	9434	30%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  In spring 2006, this CI injured his back when he stepped in a hole.  He was treated with medication and profiling.  In April 2007, while deployed overseas, his symptoms worsened and he was medically evacuated from theater.  On 3 July 2007, he had surgery on his lumbar spine.  After surgery, the CI reported he was “somewhat better;” however, in spite of all treatment efforts, he continued to have problems with LBP.  Due to the chronic, persistent nature of his LBP, in combination with his other problems, a Medical Evaluation Board (MEB) was initiated.
The MEB physical examination (PE) was in June 2008.  The CI reported that his LBP was constant.  It was exacerbated by lifting, carrying, or prolonged standing.  There was no pain initially on arising in the morning, and the LBP did not interfere with sleep.  He was able to perform the activities of daily living (ADLs), including driving.  On PE of the lower back, there was diffuse tenderness to palpation (TTP) across the lumbosacral spine and the sacro-iliac joints.  Straight leg raise (SLR) was negative, and the deep tendon reflexes were normal.  He was able to heel, toe, and duck walk easily.  The MEB narrative summary (NARSUM) diagnosis for the back was: “Chronic low back pain, secondary to L5-S1 spondylolisthesis, status post fusion surgery.”

Two months before separation, he had a VA Compensation and Pension (C&P) examination.  He reported that his LBP was elicited by physical activity and was relieved by medication.  He described the pain as “aching and crushing.”  He had not been incapacitated to the extent of requiring bedrest.  He said he was unable to lift things over 10-15 pounds.  He was able to do all ADLs; such as brush teeth, cook, walk, shower, climb stairs, shop, vacuum, dress self, drive a car, take out trash, and push a lawnmower.  On PE, his posture and gait were normal.  PE of the lower back revealed some muscle spasm, and mild TTP.  The SLR was negative, and there was no evidence of radiation pain on movement.  The range of motion (ROM) evaluations in evidence which the Board weighed in arriving at its recommendation, are summarized in the chart below

Thoracolumbar ROM
(Degrees)	PT ~11 Mo. Pre-Sep
(20080610)	VA C&P ~ 2 Mo. Pre-Sep
(20090316)	
Flexion (90 Normal)	70	45	
Combined (240)	170	180	

The Board carefully reviewed all available information, and directed attention to its rating recommendation based on the evidence.  The Army PEB and the VA chose different rating options for the LBP condition.  The PEB assigned a 10% disability rating, while the VA rated it 20%.  The Board noted the disparity between the back ROM exams which are described above.  At the March 2009 C&P examination, forward flexion was only 45 degrees.  The Board found some discrepancies and inconsistencies with that March 2009 C&P examination, which caused the Board to question its validity and probative value.  For example, a limitation of thoracolumbar forward flexion to 45 degrees would certainly present difficulties with certain activities such as dressing oneself, sitting in a chair, driving a car, or climbing onto the examination table.  The record does not indicate that the CI had any of these difficulties with his activities of daily living (ADLs).  In fact, we know that the CI was able to dress himself and drive a car, because the examiner wrote: “The claimant can do all the activities of daily living such as brush teeth, cook, walk, shower, climb stairs, shop, vacuum, dress self, gardening, drive a car, take out trash, and push a lawnmower, except for gardening; gardening intensifies pain in the back and the knees, as do walking and climbing stairs.”

It is possible that the C&P examiner recorded 45 degrees as the point at which the CI had pain; however, IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a, spinal ROM is to be measured with or without symptoms such as pain.  The Board determined the discrepancies and inconsistencies in the March 2009 C&P exam caused diminution in its validity and probative value.  The Board determined the measurements from the June 2008 MEB examination had greater probative value.  At that examination, forward flexion was 70 degrees.  Thoracolumbar combined ROM was 170 degrees.  IAW the VASRD §4.71a, a 10% rating is warranted when thoracolumbar forward flexion is greater than 60 degrees, but not greater than 85 degrees.  A 10% rating is also warranted when combined thoracolumbar ROM is greater than 120 degrees, but not greater than 235 degrees.  After a thorough review of the evidence, the Board determined that a disability rating of 10% was appropriate for the LBP condition.  

The Board considered the matter of radiculopathy.  After review of all information in the record, there was insufficient evidence of a clinically significant radiculopathy that interfered with performance of military duties; therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  Considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board unanimously recommends no change in the PEB adjudication of the low back pain (LBP) condition.
 
Contended PEB Condition:  Major Depressive Disorder [MDD].  In January 2008, this CI was hospitalized for MH symptoms.  He thought that people were following him.  He was an in-patient for about 2 weeks.  His discharge diagnosis was “delusional disorder.”  In February 2008, he was briefly re-hospitalized for suicidal ideation.  On 25 June 2008, he had a psychiatric MEB evaluation.  The examiner’s Axis I diagnosis was: “brief psychotic disorder, with marked stressor, unknown etiology, no current symptoms.”  The MH examiner wrote: “I cannot recommend this SM be retained…This service member does not meet retention standards IAW AR 40-501.”  On 13 August 2008, a second psychiatric MEB evaluation was performed.  The CI’s Axis I diagnosis was changed to: “Major Depressive Disorder, single episode, severe with psychotic features, in full remission.”  The Global Assessment of Functioning (GAF) score was 80.  The examiner wrote: “The soldier’s psychological condition is medically disqualifying in accordance with AR 40-501.”   

In January 2009, the Army PEB adjudicated the MDD condition as not unfitting.  On DA Form 199, the PEB wrote: “Major depression in full remission.  Soldier developed a complex presentation of psychiatric symptoms precipitated by discontinuation of prescribed opiates and further complicated by significant alcohol abuse, neither of which are ratable conditions by themselves.  He has since stopped drinking and is in treatment for this, and his depressive and psychotic-like symptoms have completely abated.  Although the future course of the Soldier’s illness cannot be absolutely predicting (sic), depending largely on his own behavior, at the present this resolved psychiatric condition does not render him unfit for his MOS and continued service.”

The Board’s main charge with regard to the MDD condition is to assess the fairness of the PEB’s adjudication.  The Board determined the best source of information upon which to base a fitness determination was the March 2009 psychiatric C&P evaluation, which was just 2 months before separation.  At that examination, the CI reported occasional anxiety, tearfulness, and insomnia; however, this was infrequent and did not seem to interfere with daily activities.  His symptoms of anxiety and/or depression did not interfere with the carrying out of his daily activities, and had no impact on his social life.  The mental status examination, he appeared a little bit anxious and depressed, but was otherwise normal.  The examiner’s Axis I diagnosis was: “depressive disorder, not otherwise specified, as manifested by low energy, sad mood, some vague anxiety at times, and some difficulties sleeping.”  Axis IV was: “good support system, his wife and friends are available to him.”  The GAF score was 85 (indicating minimal symptoms, good functioning in all areas, and socially effective).  The C&P examiner wrote: “He has no difficulty in performing duties or activities of daily living, and he is able to establish and maintain effective work and social relationships.”
  
The Board determined that based on the data from the March 2009 psychiatric C&P evaluation, the CI’s mental health condition did not fail retention standards.  There was no performance-based evidence from the record that the MDD condition significantly interfered with satisfactory duty performance.  After due deliberation, and in consideration of the evidence, the Board found insufficient cause to recommend a change in the PEB fitness determination for the MDD condition.   

BOARD FINDINGS:  In the matter of the LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the MDD 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 20140307, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXX AR20160013053 (PD201401209)

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