RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-01405
BRANCH OF SERVICE:  Army	BOARD DATE:  20140924
SEPARATION DATE:  20090526

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (25B/IT Specialist) medically separated for a low back condition.  The low back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  His profile allowed for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3/S1 profile and referred for a Medical Evaluation Board (MEB).  The low back condition, characterized by the MEB as “herniated nucleus pulposis, L4-L5” and “chronic lumbar non-radicular pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions, one being depressive disorder with anxiety, all meeting retention standards.  The Informal PEB (IPEB) adjudicated “chronic low back pain (LBP) due to L4-L5 left sided disc herniation status post (s/p) hemilaminectomy …without radiculopathy” as unfitting, rated at 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting and therefore not rated.  The CI non-concurred with the IPEB’s finding and recommendations and requested a Formal PEB (FPEB).  The CI later waived his rights for an FPEB, made no further appeals and was medically separated. 

CI CONTENTION:  “I was rated at 20% by the Army medical Review Board and was given 40% for lumbar spine and 80% total.”  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 those conditions identified but not determined to be unfitting by the PEB, when specifically requested by the applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20090116	VA - (1 Week Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain due to L4-L5 Left Sided Disc Herniation s/p Hemilaminectomy	5299-5243	20%	Herniated Nucleus Pulposus, Lumbar Spine s/p Lumbar Laminectomies w/Scar and DDD	5243	40%*	20090604	
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea	6847	50%	20090604	
Depressive Disorder w/Anxiety	Not Unfitting	No VA Entry 	
Other x 1 (Not in Scope)	Other x 6	20090604	
Rating:  20%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20090910 (most proximate to date of separation)
*5243 previously rated at 0% and then 30% effective 20040218

ANALYSIS SUMMARY:

Chronic Low Back Pain L4-L5 Left Sided Disc Herniation s/p Hemilaminectomy.  The narrative summary (NARSUM) recorded that the CI’s history of intermittent radicular pain of the back began in November 1991.  While deployed to Kosovo, his symptoms worsened, resulting with his evacuation from theater to Landstuhl, Germany in April 2008.  Magnetic resonance imaging (MRI) dated 5 March 2008, demonstrated herniated intervertebral disc (L4-L5) with involvement of the L5 nerve root.  X-ray images of the lumbar spine obtained a month later were normal.  A neurosurgery consultation dated 14 April 2008, noted that a MRI dated 10 April 2008, noted there was mild broad-based disc bulging at L4/5 without nerve root involvement.  Additionally, there was a small annular tear at L5/6 and mild multilevel degenerative disc disease.  The CI was transferred stateside and underwent L5 laminectomy (hemi) surgery in May 2008.  His lower back pain persisted in spite of steroid injections and medications.  The CI participated in both physical therapy and had chiropractor sessions for his lower back condition.  In addition to LBP, the CI reported radicular pain into the left buttock, hip and posterior leg and occasionally to the foot.  An orthopedic entry dated 16 September 2008 noted the CI reported that his physical therapy was stopped due to reaching maximal benefit.  

During physical examination, the examiner recorded that the CH had a normal gait and stance, thoracolumbar pain was elicited at “extreme limits of the range-of-motion” (ROM).  Tests for radiculopathy (straight leg raise, Patrick) were negative.  The CI consultation and received treatment from a pain management provider and during his 7 November 2008 visit, reported an 80% improvement after [steroid] injection.  An orthopedic addendum dated 2 December 2008, recorded the history of LBP since February 1992 that was treated conservatively; however, his injury progressed and he was medically separated in November 1992.  In 1999, the CI obtained a waiver for re-enlistment into the National Guard and subsequently was activated.  He re-aggravated his back condition and was medevaced in April 2008 after steroid injections and physical therapy failed to alleviates his back pain.  At the time of the addendum, the CI reported constant LBP with occasional radicular pain down the left leg with some numbness in the right leg.  

On physical examination, ROMs were recorded the average of three measurements and noted flexion at 35 degrees and extension of 18 degrees, both limited by pain.  The physician emphasized that all limitations of ROM were due to pain and not mechanical limitations.  Mild tenderness was noted in the left S1 joint area and there was no evidence of neurovascular compromise or abnormal sensory function.  The NARSUM dated 15 December 2008 noted the CI had a 2-week inpatient treatment following his initial back injury (date omitted).  A second orthopedic addendum dated 19 February 2009, recorded lumbar flexion average of 3.2 and extension average of 7.6.  The examiner noted minimal effort was made and the CI was observed prior to the beginning of the examination in a seated position, comfortably rose to a standing position and at that point “exhibited more effort with forward flexion and more motion than he demonstrated during the physical exam component.”  He had regional weakness, “over reaction and non-anatomical tenderness in the back.”  At the VA Compensation and Pension (C&P) examination dated 4 June 2009 (obtained 9 days after separation), the examiner recorded forward flexion of 18 degrees and extension to 37 degrees, both with pain at the end of ROM.  Repetitive motion produced further loss of strength but no changes in the ROM.  No spasms were noted.  His profile allowed running, biking, walking or swimming at own pace and distance, as well as upper and lower body weight training.  The commander’s statement noted the CI was not performing duties in his assigned MOS but could perform the alternative duties well and was working a full 8-hour duty.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition 20% coded analogously 5299-5243 (intervertebral disc syndrome) for residual back pain without radiculopathy, and spinal flexion limited to 35 degrees.”  The VA rated the condition 40% coded 5243, based on forward flexion of 18 degrees and extension of 37 degrees.  The Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  Applicable diagnostic codes include: ratings under general spine rules 5235-5243 (limitation of lumbar spine motion) and 5243 (Intervertebral disc syndrome).  Under code 5243, the higher rating of 40% required documented limitation of motion with thoracolumbar flexion of 30 degrees or less or incapacitating episodes.  The Board noted the marked disparity in the ROM reported in the orthopedic addendum compared to the recorded ROM at the NARSUM and at the C&P evaluation.  Review of the records demonstrated the presence of one examination in January 2009 that recorded “lumbosacral spine motion was normal” and normal gait.  A physical therapy entry obtained in January 2009 recorded ROM limited by pain.  There were no quantified ROM measurements recorded in the treatment record prior to the NARSUM.  The Board considered the ROMs recorded in the second orthopedic addendum were inconsistent with the first orthopedic examination for the NARSUM and the VA examination.  

The Board next considered the 35-degree average ROM flexion recorded for the NARSUM (nearly 6 months prior to separation) and the 18 degree flexion during the VA C&P examination (obtained 9 days after separation).  Board members concluded the VA examination, less than 2 weeks after separation, had higher probative value.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% coded 5299-5243 for the chronic LBP condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the conditions of OSA and depressive disorder with anxiety were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board first considered the MH condition.  The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH conditions during processing through the military DES.  The evidence of the available records showed the diagnosis of depressive disorder with anxiety as the only diagnosis rendered during processing through the DES.  Therefore, the Board determined that no MH diagnosis had been changed or eliminated during that process.  The Board noted the CI endorsed two symptoms on the DD Form 2807 history and physical form; frequent trouble sleeping and nervous trouble.  The CI also noted he did not have depression or excessive worry but had anxiety and was prescribed Effexor.  The medication profile recorded a prescription for Effexor in August 2008 with two refills.  

The Board members agreed the evidence of the record reflected minimal MH related symptoms.  There were no MH treatment records in evidence.  The Board noted the CI was not evaluated for a MH condition at the VA until 2014.  The VA determined his claimed condition of anxiety disorder/adjustment disorder with depression was not service-connected.  The depressive disorder with anxiety was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.
In August 2008, the CI presented with a history consistent with OSA.  After a sleep study evaluation on 14 September 2008, the diagnosis was rendered.  The VA C&P examination noted the CI was compliant with his continuous positive airway pressure (CPAP); reporting 90% relief of snoring and apneic spells.  The CI reported being very faithful in using his CPAP, even taking it with him on vacations.  Additionally, he had lost 15 pounds and had no daytime hypersomnolence or hemotysis.  He was employed and anticipating being sent to overseas locations.  The OSA condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.

Both conditions were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that either condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for either of the contended conditions and so no additional disability ratings are recommended.

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 chronic LBP condition, the Board unanimously recommends a disability rating of 40%, coded 5299-5243 IAW VASRD §4.71a.  In the matter of the contended OSA and depressive disorder with anxiety 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.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5299-5243	40%	
RATING	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140305, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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 XXXXXXXXXXXXXXXXX, AR20150006607 (PD201401405)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA