RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01855
BRANCH OF SERVICE:  Army	BOARD DATE:  20141009
SEPARATION DATE:  20070319

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reservist on temporary tour of active duty E-6 (Carpentry, Masonry) medically separated for a low back and neck pain.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent U3/L3/S1 profile and referred for a Medical Evaluation Board (MEB).  The MEB forward the low back and neck pain conditions, characterized as falling below retention standards to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions to include anxiety disorder.  The Informal PEB adjudicated chronic low back pain (LBP) and chronic neck pain as unfitting, rated 10% and 0% respectfully with presumed application of the US Army Physical Disability Agency pain policy.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  Immediately after he was separated he received a 70% rating from the VA for his injuries.  His complete submission, with attachments, 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 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.  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:

Service IPEB – Dated 20070124	VA* - (1.2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Lumbar Spine Strain	5237	20%	20070425	
Chronic Neck Pain	5237	0%	Cervical Spine Strain	5237	20%	20070425	
Headache Disorder	Not Unfitting	Chronic Migraines	8045-8100	0%	20070425	
Anxiety Disorder	Not Unfitting	No VA entry	20070425	
Other x 0 (Not in Scope)	Other x 4 (Not in Scope)	20070425	
Combined:  10%	Combined:  50%	
*Derived from VA Rating Decision (VARD) dated 20071010 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Chronic Low Back Pain.  The MEB narrative summary (NARSUM) noted that the CI experienced a low back injury on or about 6 June 2006 while deployed when an improvised explosive device (IED) exploded underneath his armored HUMVEE and he was thrown about the gun turret.  Within a few minutes he experienced LBP.  Evaluation ruled out fracture, dislocation or a spinal disc problem and he was medically evacuated to the CONUS.  Lumbar X-rays performed on 19 June 2006 were reported as normal.  Lumbar magnetic resonance imaging (MRI) reportedly showed vertebral abnormality with Grade 1 disc slippage at L5, (spondylolysis and spondylolithesis) thought to be a pre-existing condition and did not show any disc herniation.  Neurological evaluation 2 weeks after the IED incident noted that the CI had painful range-of-motion (ROM) of the thoracolumbar spine but an otherwise normal examination, without muscle spasm and with normal lower extremity (LE) strength, sensation and reflexes.  Re-evaluation on 26 June 2006 again noted normal ROM with painful motion and an otherwise normal examination.  Notes in the service treatment record (STR) indicated the CI reported LBP levels of 1-2/10; the highest 3-4/10, was reported following a recreational trip.  There were no incapacitating episodes due to the LBP noted in the record.

At the MEB orthopedic evaluation on 6 November 2006, approximately 4 months prior to separation, the CI reported chronic LBP without radiation or numbness/tingling involving the LE.  The orthopedic examination noted “minimally decreased” lumbar ROM secondary to pain with normal LE strength, sensation and reflexes and negative straight leg raise testing.  At the MEB NARSUM examination on 27 December 2006 the CI reported LBP.  The examination of the low back was “unremarkable” with three repetitive lumbar flexion ROMs of 80, 80, 80 degrees (normal 90) and combined ROM of 215 (normal 240).  There was no spasm, deformity or midline tenderness.  There was mild tenderness of the lumbar muscles.

At the VA Compensation and Pension (C&P) examination on 25 April 2007, approximately a month after separation, the CI reported chronic back pain without radiation or flares.  The VA exam noted a normal gait and LE strength, sensation and reflexes were normal bilaterally.  Lumbar ROM was flexion 60 degrees with combined ROM of 180, noted to be limited by painful motion and “Per DeLuca exam he has no further DeLuca losses.”  The examiner noted that the back condition did not affect the CI’s work, but did affected his daily routine in that he has to avoid lifting heavy objects.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic LBP 10%, coded 5237 (lumbosacral strain) and the VA rated it 20%, also with coded 5237.  The Board noted that the MEB examination noted back flexion of 80 degrees, which supported the 10% rating and the VA C&P examination a month post-separation indicated lumbar flexion of was 60 degrees, just on the cusp of the 10% and 20% ratings IAW with the VASRD General Formula for Rating the Spine in effect at the time of separation.  However, the evidence at the MEB orthopedic evaluation, MEB NARSUM examination and at repeated evaluations in the STR supported full or nearly full thoracolumbar ROM, with painful motion.  There was no reported recurrent injury or exacerbation and there were no other physical findings on examination to explain the difference in the ROM noted.  The Board agreed that the C&P examination may have been due to a “bad day” for the CI regarding pain, but the totality of the evidence in record supports a 10% rating and there was no evidence of incapacitating episodes or peripheral nerve impairment related to the LBP to allow for higher or additional rating.  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 chronic LBP condition, coded 5237.

Chronic Neck Pain.  The MEB NARSUM noted that the CI experienced neck injury in the same IED incident noted above on 6 June 2006.  He was in a hard cervical collar until cervical injury was fully ruled out.  Cervical X-rays and computed tomography scan performed on 19 June 2006 were normal except for evidence of muscle spasm and a treatment note indicated cervical MRI was also negative.  Early treatment notes after the CI was medically evacuated to the United States indicated limited cervical ROM due to localized neck pain, without upper extremity (UE) symptoms (radiculitis) and with normal muscle strength.  The CI underwent physical therapy and reported that his pain level was reduced to 2-3/10, but his neck remained tight.

At the MEB orthopedic evaluation on 6 November 2006 the CI reported mild chronic neck pain increased with neck movement.  The orthopedic exam noted mild decreased cervical ROM secondary to pain with an otherwise normal examination including normal strength, sensation and reflexes of the bilateral UE.  At the MEB NARSUM examination on 27 December 2006, approximately 2 months prior to separation, the CI reported chronic neck pain.  The examination of the neck was “unremarkable” with cervical flexion ROM of 45, 45, 45 degrees (normal 45) and combined ROM of 288 (normal 340).  The examination noted no muscle spasm, deformity, or tenderness of the cervical spine or surrounding muscles.  There were no incapacitating episodes due to the neck pain noted in the record.

At the VA C&P examination, approximately a month after separation, the CI reported chronic neck pain and stiffness without UE or neurological symptoms.  He reported no flares and that he was taking no medications for the neck condition.  The examiner noted that the neck pain did not affect the CI’s work or daily routine.  The VA examination noted normal strength, sensation, and reflexes of the UE bilaterally.  Cervical ROM was flexion of 45 degrees and combined ROM of 240, with painful motion noted.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic neck pain 0%, coded 5237 (cervical strain) and the VA rated it 20%.  The Board considered that the CI was noted to have painful, mildly limited cervical ROM without noted muscle spasm at the MEB orthopedic, MEB NARSUM and C&P examinations.  Based on the evidence in record the Board agreed that the neck pain did not meet the 10% rating according to the VASRD General Formula for Rating the Spine in effect at the time of separation but did meet a 10% rating IAW §4.59.  Additionally, there was no evidence of incapacitating episodes or peripheral nerve impairment related to the neck pain to allow for higher or additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.59, the Board recommends a disability rating of 10% for the neck pain condition, coded 5237.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the headache condition was 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.
Headaches.  The MEB NARSUM noted that the CI reported chronic daily headaches which began after the IED blast noted above, associated with light and sound sensitivity that occurred about twice per month, usually in the evenings.  He reported use of a migraine abortive medication as needed for more severe headaches.  He did not have any emergency treatment for headaches and worked full-time.  He was evaluated for a post-concussive disorder but neuropsychological testing performed on 29 August 2006 did not support the diagnosis.  A neurology consultation on 1 November 2006 noted a normal neurological evaluation and brain MRI.  The MEB NARSUM examiner noted that he agreed with the CI’s primary care provider that the headaches were not “unfitting.”

At the VA C&P examination a month after separation, the CI reported a very mild chronic headache with flares three to four times per month that usually start in the afternoon and go away after sleeping.  Migraine medications, abortive or preventive, were not helpful.  The headaches were noted to be “not prostrating” and the CI had “never missed work because of them.”  The VA rated chronic migraines 0%, coded 8100 (migraines).

The commander’s statement noted that the “neck and low back pain prevent him from performing his military duties and remaining a productive member of the U.S. Army.”  The headaches condition was not profiled or judged to fail retention standards.  There was no performance based evidence from the record that the HA conditions 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 the contended headaches condition and so no additional disability rating is recommended.

Contended Mental Health (MH).  Notes in the STR indicated that the CI was evaluated by psychiatry on 24 August 2006 for reported insomnia, irritability and memory problems.  No abnormalities were noted on mental status evaluation (MSE) and the CI was diagnosed with anxiety disorder, not otherwise specified (NOS) and was referred for a neuropsychological evaluation.  Neuropsychological evaluation noted a normal MSE and on standardized neuropsychological testing on 29 August 2006 there was no evidence of a cognitive or a post-concussive disorder.  The examiner indicated that the CI’s symptoms were consistent with mild anxiety.  At a psychiatric follow-up on 19 September 2006 the CI reported that sleep was improved with medication, he had stopped anti-depressant medication because he noted no benefit and declined group therapy because he was feeling better.  Repeated MSE in the record noted no abnormalities.  The MEB DD Form 2808, Report of Medical Examination, dated 13 November 2006 indicated a diagnosis of posttraumatic stress disorder (PTSD) and noted a MEB psychiatric evaluation was scheduled for 7 December 2006, but there was no MEB psychiatric addendum in the records available or referenced in any other notes.  There was a psychiatry visit dated 7 December 2006 in the STR with the diagnosis of anxiety disorder NOS continued.  The psychiatrist indicated that he reviewed the neuropsychological report with the CI and provided the CI his opinion that the psychiatric condition was fitting and noted that the CI agreed.  The MEB NARSUM noted sleep difficulties with some bizarre, vivid nightmares (noted at the last 7 December psychiatric visit to be increased possibly as a side effect of psychotropic medications) and that the psychiatrist found the “psychiatric condition was fitting for duty.”  The MEB NARSUM indicated that the anxiety disorder did not cause the CI to fall below retention standards.

The initial VA C&P examination, a month after separation, noted only that the CI had “a “hostility disorder” and was seeing a therapist for it.  The exam noted “no psychiatric abnormalities and he has a normal affect.”  The original VA Rating decision 10 October 2007 did not address any MH condition.  A remote VA C&P PTSD examination 23 November 2009 (32 months after separation) noted the CI was not on psychotropic medications and was not in treatment for any MH issues.  He had obtained a college degree since separation and was employed and engaged.  The CI reported PTSD symptoms but said that he thought they were mild and did not impact him too greatly.  The VA examiner noted a normal MSE with a global assessment of functioning of 65 (mild impairment range) and diagnosed mild PTSD and the VARD 17 December 2009 rated PTSD 10%, 33 months after separation.

The Board reviewed the records for evidence of inappropriate changes or elimination of diagnosis of the MH condition during processing through the disability evaluation system.  The DD Form 2808 listed a diagnosis of PTSD.  The MEB forwarded and the PEB adjudicated a diagnosis of anxiety disorder.  Therefore, this case did appear to meet the inclusion criteria in the TOR of the MH Review Project.  The Board noted that the DD Form 2808 examiner listed a diagnosis of PTSD.  However, there is no documentation in the available STR that any MH expert or health care provider diagnosed the CI with PTSD.  The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Accordingly, the remote VA diagnosis of mild PTSD has little probative value regarding possible recommendation for a MH diagnosis change and Board finds insufficient evidence to recommend a change of the conferred MH diagnosis.

The anxiety disorder was determined to be not unfitting by the PEB.  The Board’s charge with respect to MH conditions, referred for review that were determined to be not unfitting by the PEB, is an assessment of the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering PEB not-unfit determinations requires a preponderance of evidence.  Members considered that the psychiatric profile was S1 throughout the service and there is no evidence in the STR documenting adverse performance due to MH issues.  The commander’s performance statement addressed only physical limitations and noted the CI was a good soldier.  The VA did not address a MH condition until more than 2 years after separation.  The CI’s functioning since separation as detailed above, describes a mild MH condition, also corroborates the MH condition as not unfitting at the time of separation.  After due deliberation in consideration of the preponderance of the evidence, the SRP concluded that there was insufficient cause to recommend a change in the PEB adjudication of the MH condition and, therefore, no disability rating can be 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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the neck pain condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended headache and mental health 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5237	10%	
Chronic Neck Pain	5237	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140429, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXX, AR20150009951 (PD201401855)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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		     XXXXXXXXXXXXXXX
			    Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA