RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02111
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030908

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Motor Transport Operator, medically separated for “chronic low back pain, with lumbar degenerative disc disease and right lower extremity sciatic pain…” and “depressive disorder, not otherwise specified (NOS),” rated 10% and 10% respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI requests consideration of all conditions in her contention.  The CI’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 based on 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 - 20030619	VARD - 20031001	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain w/Lumbar DDD and Right Lower Extremity Sciatic Pain	5299-5295	10%	Hypertrophy, Lumbar Spine	5293-5292	10%	20030220	
Depressive Disorder, NOS	9434	10%	Depressive Disorder	9434	10%	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  Service treatment records noted the CI fell about 5 feet and landed on her back during Basic Training in June 2001.  She developed back pain that was treated conservatively.  Low back pain returned in November 2001 after digging a foxhole.  She developed numbness and tingling of the right leg after a motor vehicle accident in June 2002.  Electrical conduction studies were normal.  A neurosurgery evaluation in December 2002 rendered a diagnosis of lumbar degenerative disk disease with low back pain and right lower extremity sciatic pain.  There was no role for surgery and the neurosurgeon opined that she was not able to perform duties of her military specialty since becoming active duty.  She received a permanent profile and was referred to the medical board.

At the VA Compensation and Pension (C&P) examination, dated February 2003, performed 7 months before separation, the CI reported she had constant pain that traveled to the right side of her body but the condition did not require bedrest or treatment by a physician.  She had no functional impairments and no lost time from work.  The musculoskeletal examination showed normal posture and gait.  The lumbar spine showed no radiation pain on movement or muscle spasm.  There was tenderness to the spinal processes from L1-S1.  Straight leg raise was negative bilaterally.  There were no signs of radiculopathy.  Lumbar range of motion (ROM) showed flexion to 65 degrees and extension to 35 degrees with pain.  There was no ankylosis of the lumbar spine.  There were no sensory or motor deficits and deep tendon reflexes were intact.  X-rays of the lumbar spine showed hypertrophy, L3/L4 and L5/S1.  The examiner noted functional loss with slight limitation of function.  Her daily work was clerical.  

The narrative summary dated March 2003, noted the physical examination showed a normal gait and the ability to heel and toe walk and tandem gait.  Straight leg raise was negative for leg pain with minimal myofascial tenderness.  There was a full ROM in flexion to 90 degrees (normal 90) and extension 15 degrees (normal 30).  Motor strength was 5/5 and sensation was intact with normal deep tendon reflexes.  She was unable to run, jump, perform pushups and sit ups.  She could not drive tactical vehicles or perform other duties of her military specialty.  American Medical Association (AMA) pain rating was slight intensity and constant frequency.  

The Board directed its attention to its rating recommendation based on the above evidence.  The 2003 VASRD coding and rating standards for the spine, which were in effect at the time of permanent separation, were changed to the current §4.71a rating standards on 26 September 2003, following the CI’s permanent disability disposition.  The older ratings were based on a judgment as to whether the disability was mild, moderate or severe.  The current standards are grounded in ROM measurements.  IAW DoDI 6040.44, this Board must consider the appropriate rating for the CI’s back condition at separation based on the VASRD standards in effect at the time of separation.  

The PEB rated chronic low back pain 10%, coded analogously to 5295 (lumbosacral strain), citing application of DoDI 1332.39, and AR 635-40 while the VA assigned the same rating under a combined 5293-5292 code (intervertebral disc syndrome; limitation of motion, lumbar spine).  The Board agreed that criteria supporting a rating higher than 10% under the 5295 code are not in evidence (i.e. “with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position”); but debated if a higher rating is supported under other codes in effect at the time of separation.  Under the 5292 code a 20% rating is justified for “moderate” limitation of lumbar motion, but based on the evidence at hand Board members concluded that this degree of limitation was not present.  Likewise, there was no evidence of incapacitating episodes to warrant a minimal rating under the 5293 code.  The Board finally considered if additional disability was justified for peripheral nerve impairment.  Although there were inconsistent complaints of radiating pain, magnetic imaging showed no nerve root compromise; and there was no motor impairment that could be linked to any functional deficit or limitation of specific physical requirements.  The Board therefore concluded that additional disability rating for radiculopathy was not justified. 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 low back pain condition.  

Depressive Disorder, NOS Condition.  The Psychiatric addendum, dated May 2003, noted the CI first presented to mental health in February 2003, reporting stress and depression due to ongoing medical problems.  She reported depressed mood, difficulty with sleep, chronic pain, crying spells, excessive worry, fear, shortness of breath and frequent headaches.  The symptoms impaired her function in her relationship at work and with her boyfriend.  Treatment included therapy and pain management skills with moderate effectiveness.  She received anti-depressant medication.  Mental status examination (MSE) was essentially normal; she felt depressed about her back.  A diagnosis of depressive disorder, NOS [not otherwise specified] was rendered with a Global Assessment of Functioning (GAF) score of 55 (moderate symptoms, impairment).  Social and occupational impairment was mild.

At the VA Compensation and Pension (C&P) examination for MH, dated May 2004, performed 8 months after separation, the CI reported she last took anti-depression medication in September 2003 and was beginning to feel depressed as she was then.  She denied suicidal ideation or psychiatric hospitalizations.  She stopped working in February/March to take care of her small children.  She lived with her boyfriend and they visited with friends.  MSE was normal.  Diagnosis was changed from major depression to dysthymic disorder with a GAF of 90 (absent or minimal symptoms.).  

The Board directed its attention to its rating recommendation based on the above evidence.  Both the PEB and the VA assigned a 10% rating, coded 9434 (major depressive disorder).  The Board considered whether a higher 30% rating for “occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks,” was appropriate.  The Psychiatric addendum noted the MSE was essentially normal: the CI reported she was depressed about her back but happy.  The examiner noted impairment for social and industrial adaptability was mild.  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 depressive disorder condition.

BOARD FINDINGS:  In the matter of the chronic low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the depressive disorder NOS condition and IAW VASRD §4.130a, the Board unanimously recommends no change in the PEB adjudication.  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 16 May 2014, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXXXX AR2016001 0895 (PD201402111)

I have reviewed the enclosed Department of Defense Physical Disability Board of
Review (000 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
( ) DVA