RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02226
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080826

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E2, Network Specialist, medically separated for “chronic low back pain,” with a 20% disability rating.  

CI CONTENTION:  He was given a higher rating by the VA for his unfitting condition.  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 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 PEB - 20080327	VA - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5237	20%	DDD at L4-L5	5242	0%	STR	
Depression	EPTS	Depression	9434	NSC	STR	
Abnormal PAP Smear	Not Unfitting 	Gynecological	7611	NSC	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  The record showed that the CI was seen several times for low back pain (LBP) associated with other conditions in the first months after accession.  A back examination on 20 February 2007 was unremarkable and the neurological examination and gait were normal.  A primary care note dated 13 March 2007 recorded that she had injured her back in training 3 weeks previously.  On examination, motion was full and painless; tenderness and spasm were absent.  Of note, an in-processing note a week earlier (dated 6 March 2007) recorded a history of “Feeling fine.”  On 21 March 2007, she noted the onset of LBP on 4 March 2007 during training and reported daily pain upon arising.  X-rays were consistent with muscle spasm, but otherwise unremarkable.  Spasm was not documented on examination and tenderness was noted as not present.  On 28 March 2007, the CI reported a 5-month history of LBP which began in basic training.  She denied a specific injury.  On 11 April 2007, she was noted to have pain free and full range of motion (ROM).  Tenderness was absent.  A neurological examination and gait were normal.  The examination remained unchanged when seen on 23 and 30 March 2007.  The CI was then referred to physical therapy (PT) for treatment.  In physical medicine on 21 May 2007, flexion was reduced to 70 degrees, but the examination was otherwise unremarkable.  Two days later in primary care the ROM was again normal.  She was referred to neurosurgery and was noted to have degenerative disc disease (DDD) with a herniation at L4-5 without definite nerve root involvement.  She had significant tenderness on examination.  She reported that she could not do physical fitness training and requested a Medical Evaluation Board (MEB).  In physical medicine on 18 June 2007, she was again noted to have decreased flexion “60(?)”, but normal gait, posture, and sensation.  She declined a steroid injection.  She continued to be seen frequently for the LBP.  At an orthopedic evaluation for the MEB on 2 October 2007, she was noted to have full but painful motion.  Palpation of the back was normal implying that there was neither tenderness nor spasm.  The neurological examination and gait were normal.  In primary care on 31 October 2007, she was unable to stand erect due to back pain, but had full ROM and normal reflexes and strength.  She was noted to be in “no acute distress.”  At a flight medicine appointment on 3 December 2007, she reported the onset of LBP in basic training due to overuse without specific trauma.  On examination, she had tenderness and spasm.  The ROM was “abnormal.”  The neurological examination and gait were normal.  The neurological examination and gait were normal in a neurosurgery evaluation on 13 December 2007.  An MRI on 14 December 2007 showed DDD at L4-5 and L5-S1.  Formal ROM testing was done in PT on 17 December 2007 and is charted below.  It was limited by pain.  Guarding, spasm, and abnormal contour were absent.  Tenderness was present.  Of eight maneuvers which were not expected to be painful in this condition, seven were positive.  The gait was normal and the CI was able to rise from a chair and sit down without difficulty.  She was offered further treatment, but requested that she be placed on quarters instead.  Flexion was limited to 45 degrees (normal is 90) and the combined ROM was 180 degrees (240 is normal).  The CI was admitted for an exacerbation of her depression (below) the next day and was hospitalized from 18 December 2007 to 3 January 2008.  At admission, she was noted to be uncomfortable and to walk with a cane.  At discharge, she walked comfortably without a cane.  A primary care note dated 4 January 2008 documented that her LBP was well-controlled.  The CI was seen again in neurosurgery on 9 January 2008.  She reported pain radiating to her left anterior thigh.  The neurological examination remained normal.  On 11 January 2008, she was reevaluated in PT by the same therapist who had seen her on 17 December 2007.  It was noted that she had a normal gait and that her ROM was significantly improved with flexion noted as “hands past her knees.”  Side bend was to her knees; extension and rotation were full.  At the MEB examination on 10 January 2008, tenderness and spasm were present and flexion decreased.  The neurological examination was normal.  The narrative summary (NARSUM) was dated 14 January 2008 and relied on the above examination.  There was no further evidence proximate to separation available for review.  The VA Compensation and Pension (C&P) examination was scheduled for 16 September 2008, but the CI failed to report.  An examination on 18 May 2010, 21 months after separation, showed spasm, but a normal gait, neurological examination, and full ROM.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP at 20%, coded 5237 (lumbosacral strain).  The VA initially rated the back at 0%, coded 5242 (degenerative arthritis of the spine), as the CI did not report for a C&P examination.  This was upheld at the VA rating decision, dated 25 August 2010, which was based on the May 2010 examination.  The CI was later rated at 10% for the back, effective 13 August 2012.  The CI was also rated 20% for a right lower extremity radiculopathy also effective 13 August 2012.  The CI contended for this as part of the combined 50% rating adjudicated by the VA in the 27 August 2013 rating decision.  The Board noted that numerous neurological examinations leading up to separation were normal as was a neurological examination on the C&P 21 months after separation.  The presence of an unfitting radiculopathy at separation is not supported and a rating cannot be assigned.  The Board also noted that the probative value of the MEB ROM values on 17 December 2007 was compromised and that these values are not consistent with the remainder of the evidence which support a 10% rating for limited and/or painful motion.  However, the Board does not recommend a lower rating than what was assigned by the PEB.  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.  

Depression Condition.  The CI also contended for the depressive disorder which the PEB determined to be unfitting, but existing prior to military service (EPTS) and not been permanently aggravated by military service.  It was therefore not entitled to compensation.  The first record in evidence for a mental health condition was a psychology follow-up appointment dated 22 June 2007.  She reported that her primary care manager (PCM) and others in her chain of command thought that she was exaggerating her back symptoms and that she was having difficulty adjusting to military life.  She reported anger and depression since the age of 9 and her history of symptoms was noted to be inconsistent.  She endorsed suicidal ideation when alone in the barracks, but also noted that she used depression to “get her command to allow her to go off-post and get a past.”  She was hopeful of a medical board.  She was noted to be non-compliant with her homework and medications.  The next record in evidence is a case management note dated 14 December 2007 which only addressed the back pain and noted that she was “well-appearing.”  She was seen in case management 3 days later on 17 December 2007 and requested a sick slip as her back hurt from PT.  She was noted to have superficial “cut marks” on her wrists and was transported via ambulance for a psychiatric admission at a referral hospital.  On admission, it was noted that she had recently been PCS’d (1 December 2007) for her back pain and mental health symptoms.  She had been in a fight with her husband on 15 December 2007 due to her infidelity at her prior assignment.  She denied suicidal ideation when she cut herself.  She stated that she had been depressed her entire life and had difficulty maintaining a job.  Her mother had been sick her entire adolescence and died while the CI was in advanced infantry training.  She married her boyfriend impulsively a few days later.  She reported counseling and an Article 15 for performance and reporting issues.  Over the summer she had begun drinking every weekend and engaged in extramarital relations because she “just felt a little wilder.”  She endorsed one episode of manic type behavior which last 2-½ weeks.  She endorsed ongoing depressive symptoms and two distinct aspects to her personality.  She was thought to have a borderline personality disorder which accounted for her impulsivity, infidelity, substance abuse issues, self-mutilation and suicide gestures, and anger issues.  It was noted that prior to service, she had been admitted for 2 weeks at the age of 17 for a suicide attempt by ingestion in the context of difficulties in school, at work, and at home.  She did not have further mental health treatment until March 2007 and was occasionally non-compliant with therapy.  A strong family history of bipolar disorder was recorded.  She reported often going to parties in high school and occasionally getting into fights.  She endorsed “cheating” on her the boyfriend and now husband over the years.  She got into physical altercations with her step-father.  It was thought that she would require outpatient treatment for the rest of her life.  She was diagnosed with a depressive disorder which was an EPTS condition.  It was noted that it “was not significantly impairing until the death of her mother while stationed at AIT.  Symptoms were significantly exacerbated by military service when separated geographically from remaining support system by being stationed (overseas).”  The Board noted, however, that prior to service the CI was admitted for 2 weeks following a suicide attempt.  The CI was also diagnosed with a borderline personality disorder.  Both the depressive disorder and the personality disorder were thought to render her unsuitable for military service.  

The Informal PEB on 8 February 2008 determined that the depression was secondary to a general medical condition and was not ratable.  The CI non-concurred and requested a formal PEB (FPEB).  The FPEB was dated 27 March 2008 and noted that the CI was admitted for depression and a suicide attempt prior to service.  The depression was aggravated by the personality disorder.  It was determined to be an EPTS condition which was not disclosed at accession.  It was noted that had this been disclosed, she would have required a medical waiver for enlistment.  It was determined that her condition was not permanently service aggravated and that she began treatment for depression the week after reporting to her first duty station.  The CI concurred with the FPEB adjudication.  

The Board considered the evidence.  Most of the behavioral issues documented were attributed to the personality disorder by the MEB psychiatrist.  The CI reported self-mutilation behavior, but denied that this was with the intent of suicide.  Her admission followed an episode of cutting herself which was noticed incidentally at an appointment for her LBP and her seeking a sick slip.  She reported using her depression symptoms for secondary gain (weekend passes).  Prior to service, she was admitted for 2 weeks following a suicide attempt, a much more serious manifestation of her mental health problems than superficial cutting.  The Board noted that the MEB psychiatrist wrote that the CI’s symptoms were not significantly impairing prior to the death of her mother and subsequent PCS.  The Board concedes that the CI apparently functioned adequately prior to this and was able to complete training.  However, the evidence clearly shows that she had a more serious manifestation of her depression prior to service (suicide attempt) and that she did not display this level of impairment while on active duty.  The Board does not find evidence sufficient to overcome the adjudication by the FPEB that the EPTS depression was “not permanently service aggravated.”  Accordingly, no rating can be assigned.  The personality disorder is not a ratable physical disability IAW DoDI 1332.38 E5.1.3.9.2.  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 depression condition.  

Contended PEB Conditions.  The CI contended for the conditions which gave her a 50% combined rating.  The abnormal pap smear was not service connected.  The Board’s main charge is to assess the fairness of the PEB’s determination that the abnormal pap smear 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.  It was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.   All were reviewed and considered by the Board.  There was no performance based evidence from the record that it 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 abnormal pap smear condition and so no additional disability rating is recommended.

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 depression, the Board unanimously recommends no change in the PEB adjudication as an EPTS condition without permanent service aggravation.  In the matter of the contended abnormal pap smear 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.  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 20140518, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

MEMORANDUM FOR Commander, US Army Phys·1cal Disability Agency
(AHRC-00), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXX, AR20160008544 (PD201402226)

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:
Enclosure
CF:
( ) DoD PDBR
( ) DVA