RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01228
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Health Care Specialist, medically for “chronic low back pain,” rated at 20%; and “major depressive disorder” which was determined as existed prior to service (EPTS) with no permanent service aggravation.

CI CONTENTION:  He believes he should have received a 30% disability rating for his back and a psychiatric disability associated with this condition.  The applicant’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 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 - 20051210	VARD - 20060823	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	20%	Degenerative Disc Disease	5243	40%	20060626	
			Cervical Strain/Myositis	5201-5237	10%	20060626	
Major Depressive Disorder	9434	---%	Bipolar Condition	9432	NSC	20060616	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:   

Chronic Low Back Pain (LBP).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain started in 1998, when he injured his back while unloading equipment during a training exercise.  In February 2003, magnetic resonance imaging (MRI) was essentially normal.  Despite conservative treatment measures, the LBP persisted and an MEB was initiated. 

The MEB NARSUM, dated 28 September 2005, noted the CI was well appearing and in no acute distress.  On physical examination (PE), gait was normal, with normal bulk and tone of the upper and lower extremities.  PE of the lower back showed no focal tenderness, and no paravertebral muscle fullness or atrophy.  Straight leg raise (SLR) was negative bilaterally.  Back range-of-motion (ROM), which had been measured by physical therapy (PT), is summarized in the chart below.

At the VA Compensation and Pension (C&P) examination on 26 June 2006, 5 months after separation, the CI reported that his LBP was worse, and was accompanied by numbness in the left leg.  He was using a cane for ambulation.  The CI was independent in self-care, and all activities of daily living (ADLs).  On PE of the lower back, there was tenderness to palpation (TTP), as well as spasm and guarding.  

The Board directed attention to its rating recommendation based on the evidence.  The PEB assigned a 20% rating under the 5237 code (lumbosacral strain), citing limitation of motion.  The VA assigned a 40% rating using the 5243 code (intervertebral disc syndrome) citing limitation of forward flexion.  At both of the ROM examinations described above, thoracolumbar forward flexion was greater than 30 degrees, but not greater than 60 degrees. The Board determined that a 20% rating was appropriate in this case IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a General Rating Formula for Diseases and Injuries of the Spine.  The record did not show sufficient evidence of a seriously disabling back condition or spinal abnormality which would justify a higher rating.  The Board also considered if an additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI did have neurological symptoms and electro-myography (EMG)/nerve conduction velocity (NCV) testing consistent with a chronic L5-S1 radiculopathy.  However, muscle examination showed normal tone in the extremities, with no evidence of atrophy.  The record did not show sufficient evidence that the neurological condition had any significant effect on the 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 found insufficient cause to recommend a change in the PEB adjudication of the unfitting low back pain condition.

Major Depressive Disorder (MDD).  The CI had a long history of emotional difficulties.  In February 2003, he was seen and evaluated by a psychiatrist.  The Axis I diagnosis was MDD.  It was found to have existed prior to service (EPTS), without service aggravation.  Two years later, on 23 March 2005, the CI was again seen by psychiatry.  He reported no overall change in his mental health (MH) condition.  Once again, the Axis I diagnosis was MDD, and it was found to be EPTS without service aggravation.    

The Army Formal PEB adjudicated the MDD as unfitting, but did not assign a rating.  On the DA Form 199, the FPEB wrote: “There is compelling evidence to support a finding that the current condition existed prior to service (EPTS) and was not permanently aggravated beyond natural progression by such service.”  Following a thorough review of the record, the Board found insufficient evidence of permanent service aggravation, over and above natural progression, of the pre-existing MH condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), this Board found insufficient cause to recommend a change in the PEB adjudication of 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 EPTS, without permanent service aggravation.  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 20140403, w/atchs
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 AR20160005846 (PD201401228)

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