RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02040
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20150210
SEPARATION DATE:  20060501

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Intelligence Analyst) medically separated for low back pain (LBP).  This condition could not be adequately rehabilitated to meet the requirements of her Air Force Specialty or physical fitness standards.  She was issued a temporary L4S1 profile and referred for a Medical Evaluation Board (MEB).  “Chronic lower back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The MEB also identified and forwarded one other condition (posttraumatic stress disorder [PTSD]) for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain…” as unfitting, rated 20%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting (Category II; can be unfitting, but not currently compensable or ratable).  The CI appealed to the Formal PEB, which affirmed the PEB findings and rating and was medically separated.

CI CONTENTION:  “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:

FPEB – Dated 20060307	VA* - (~12 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5243	20%	Thoracolumbar Degenerative Disc…	5242-5243	40%	20070411	
PTSD	Cat II Not Unfit	Dysthymic Disorder & Panic Disorder…	9411-9433	70%	20070430	
Other x 0 (Not In Scope)	Other x 6	
RATING:  20%	COMBINED RATING:  80%	
*Derived from VA Rating Decision (VARD) dated 20070515 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:

Chronic Low Back Pain.  The CI experienced chronic LBP for several years.  Magnetic resonance imaging (MRI) scans demonstrated bulging intervertebral discs in the lumbar spine.  Treatment with medication, physical therapy and injections did not provide significant improvement in pain.  Evaluations by neurosurgery in May 2005 and orthopedic spine surgery in August 2005 concluded with recommendations for non-surgical treatment.  A repeat MRI scan performed on 22 November 2005, demonstrated a bulging disc at L3-4 and protruding discs at L4-5 and L5-S1.  The L4-5 disc made contact with the left L5 nerve root.  The MEB narrative summary (NARSUM) examination on 9 January 2006, noted tenderness of the back and pain with motion.  Examination tests for radicular signs were negative.  The gait and reflexes were normal.  The MEB orthopedic examination on 10 January 2006, recorded active flexion to 50 degrees, extension 25 degrees, right lateral flexion 12 degrees, and left lateral flexion 20 degrees all limited by pain.  Muscle spasm with a stooped posture and gait were recorded.  Lower extremity strength, sensation and reflexes were normal.  Examination tests for radicular signs were negative.  The VA Compensation and Pension examination on 30 April 2007, a year after separation, recorded thoracolumbar flexion of 30 degrees after repetitive movement.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the chronic LBP associated with degenerative disc disease (DDD) 20% coded 5243 citing the limitation of motion at the time of the MEB orthopedic examination.  The VA rated the thoracolumbar DDD 40% coded 5242-5243 citing the limitation of motion at the time of the VA C&P examination.  The limitation of thoracolumbar motion at the MEB examination supported the 20% rating adjudicated by the PEB.  The Board discussed the worsened limitation of motion at the VA C&P examination a year after separation; however this examination was not proximate to separation and the Board placed greater probative value on the MEB examination.  The Board also considered rating the back condition using the VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  The criteria are based on the number of incapacitating episodes in the prior 12 months requiring bed rest prescribed by a physician.  The Board noted numerous periods of quarters in the year prior to separation however there was not documented physician directed bed rest in the service treatment records (STRs).  The total duration of quarters however did not exceed the 20% rating.  The Board concluded the evidence did not support a higher rating using this alternate formula providing no additional benefit to the CI.  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve 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 rating determination for the chronic LBP associated with DDD condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that chronic PTSD associated with depressive disorder was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  According to the MEB psychiatry NARSUM, the CI had a history of chronic low-level depression and chronic PTSD for as long as the CI could remember prior to entering service (apparently due to childhood abuse).  She experienced a bout of acute depression in 1999 during her first year of service treated with medication, but had functioned well despite chronic symptoms and performance reports reflected excellent duty performance.  STRs show the CI sought care beginning in April 2005 for increased depressive symptoms related to her chronic back pain and other stressors (marital and financial).  Mental health (MH) treatment records generally reflected mild symptoms (Global Assessment of Functioning of 70; some mild symptoms but generally functioning pretty well).  The CI was referred for an MEB in September 2005 for her chronic back pain.  MH treatment record entry on 3 October 2005 indicated MH clearance for renewal of a top secret security clearance.  The enlisted performance report for the period from 12 October 2004 to 11 October 2005 reflected very good duty performance.  The psychiatry MEB NARSUM dated 5 January 2006, noted the CI had to shorten her work days due to back pain but that there had been no difficulties with cognitive ability according to both the CI and her supervisor.  The psychiatry examiner concluded that the depression and the chronic back pain combined resulted in significant occupational impairment, but stated that from a mental standpoint the CI was worldwide qualified for duty despite her MH symptoms and was capable of maintaining military standards and bearing from strictly a mental standpoint.  He noted that absent the back pain, the MH condition was not considered impairing for duty; however, he noted the interplay between the physical condition and the mental condition.  The MH conditions were reviewed and considered by the Board.  The CI had a history of chronic symptoms since prior to service which did not interfere with performance of duty.  In 2005, there was worsening of depressive symptoms for which the CI received treatment however treatment records reflected symptoms that generally did not interfere with functioning.  Consistent with that impression was the renewal of the MH clearance for a top secret security clearance and the enlisted performance report in October 2005.  Although the psychiatry MEB NARSUM indicated some impairment, the examiner concluded the MH conditions alone did not prevent qualification for worldwide duty.  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 chronic PTSD associated with depressive disorder condition 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 associated with DDD condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended chronic PTSD associated with depressive 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140423, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAF/MRB

1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD 20762

Dear XXXXXXXXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2014-02040.

	After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

	I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

Sincerely,

XXXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings