RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02035
BRANCH OF SERVICE:  Army	BOARD DATE:  20141010
SEPARATION DATE:  20090223

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Combat Engineer) medically separated for a low back condition.  The condition 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 L3 profile and referred for a Medical Evaluation Board (MEB).  The low back condition, characterized as “low back pain (LBP)” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition, “anxiety disorder” for PEB adjudication.  The Informal PEB adjudicated “low back pain” as unfitting, rated 20% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The anxiety disorder condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”.

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. 

RATING COMPARISON:

Service IPEB – Dated 20081112	VA - (14 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5241	20%	Lumbar Degenerative Disc Disease	5243	10%	20100416	
Anxiety Disorder	Not Unfitting	PTSD	9411	Deferred	
Other x 0  (Not in Scope)	Other x 2 (Deferred)	20100416	
Combined:  20%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20120105 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Condition.  While deployed in 2006, the CI lifted a stack of wood when he heard a “pop” in his low back and experienced excruciating pain in the same area.  Initial radiology test revealed multi-level intervertebral disc bulging without nerve root or spinal nerve compression.  He was medevac’d from the theater for definitive care.  He underwent aggressive physical therapy (PT) and spinal steroid injections without symptom relief.  A repeat set of radiology exams in March 2007 revealed new evidence of spinal nerve compression.  Secondary to persistent and worsening pain coupled with new X-ray findings, the CI underwent a two-level lumbar disc replacement surgery on 23 July 2007.  Despite “some” pain relief after surgery, a significant amount persisted throughout his career.  He was permanently profiled on 30 July 2008, and sent for an MEB.  At the narrative summary examination, performed on 17 September 2008, (4 months prior to separation) the CI reported constant “mid to lower back pain” that's “like someone's taken a vise” and additionally reported, “it's a slow pressure.”  “I'm able to perform everything without any problems, but if I get to moving around too much, I get to hurting and need to take a break.”  “I can walk 15 maybe 20 minutes before it starts hurting.”  The physical examination (PE) noted “moderate range-of-motion (ROM) with flexion to approximately 90 degrees.”  Bilateral lower extremity strength was normal.  At the VA Compensation and Pension examination, performed on 16 April 2010 (14 months after separation) the CI reported only able to “tolerate sitting for approximately 10 to 15 minutes, standing for approximately 20 to 30 minutes and can lift weights between 5 to 10 lbs.”  The PE noted lumbar tenderness and decreased ROM.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~7 Mo. Pre-Sep
(20080730) 	PT ~5 Mo. Pre-Sep
(20081003) 	VA C&P ~14 Mo. Post-Sep
(20100416) 	
Flexion (90 Normal)	90	45	40	
Extension (30)	-	10	7	
R Lat Flexion (30)		18	8	
L Lat Flexion (30)		14	11	
R Rotation (30)		20	12	
L Rotation (30)		18	14	
Combined (240)	-	125	92	
Comment	tenderness	-	painful motion	
§4.71a Rating	10%	20%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the back condition under 5241 (spinal fusion) at 20% citing limited motion, whereas the VA rated 10% under 5243 (intervertebral disc syndrome) citing lumbar tenderness.  All members agreed that the PT measured ROMs were the most complete and nearest to the time of separation for probative value assessment.  Clearly, the thoracolumbar flexion of 45 degrees supports the 20% rating under the VASRD spine rules.  Absent favorable ankylosis, the 40% threshold is not applicable in this case.  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 low back condition.

Anxiety Disorder.  There was a single psychiatry entry in the service treatment record pertaining to a mental health (MH) condition.  On 19 February 2008 (12 months prior to separation), the CI was diagnosed with anxiety disorder secondary to a reported history of marital discord, and dreams about a friend who died in a tent fire.  The examiner also listed “He sometimes has combat related nightmares,” but provided no further explanation.  His mental status examination was normal excepting an “angry” mood.  There was no further clinical MH follow-up in evidence.  The Board’s main charge is to assess the fairness of the PEB’s determination that the anxiety disorder 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.  All Board members agreed that despite an angry mood, the evidence of record reflected appropriate duty performance (as related to mental functioning) in the period of time leading into the MEB.  AN MH condition was never profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The Board therefore concluded the MH condition of anxiety disorder was not unfitting at the time of separation and therefore, not subject to disability rating.  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 anxiety disorder and so no additional disability rating is 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 low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended anxiety disorder 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.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140509, 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, AR20150010555 (PD201402035)

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:

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