RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02598
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080913

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Construction Equipment Operator) medically separated for a back condition.  The back could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic thoracic and lower back pain w/o history of trauma, no radicular neurologic findings on evaluation of her thoracic or lumbar spine,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (depressive disorder, medically acceptable) for PEB adjudication.  The Informal PEB adjudicated “chronic thoracolumbar pain” as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI requested that the Board review all conditions.  The complete submission 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 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: 

IPEB – Dated 20080728	VA* - (~1 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Thoracolumbar Pain	5299-5237	10%	Thoracolumbar Strain	5237	10%	20081030	
Depressive Disorder	Meets Medical Retention Standards	Major Depressive Disorder	9434	50%	20081104	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 6	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20090526 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:   

Chronic Thoracolumbar Pain.  The narrative summary (NARSUM) dated 29 April 2008 noted the back pain was insidious in onset without history of in service related trauma.  The CI reported that she first noticed her back pain towards the end of her basic training in 2005 and is unable to relate it to any specific activity.  She rated her pain as constant with intensity of 3/10.  Her pain worsened with running, sit ups, lifting more than 30 pounds, climbing stairs and when pulling up with arms.  She has upper and lower back pain, that is somewhat relieved with stretching and physical therapy.  It was noted the CI underwent X-rays, magnetic resonance image and bone scans of the thoracic and lumbar spine; however, the results are not in evidence.  The CI also was prescribed a muscle relaxant and was not considered a surgical candidate.  Having failed conservative management, the CI was referred to the MEB.  At the NARSUM exam, the CI reported that she also experienced occasional numbness and tingling, extending into her left anterior and lateral thigh.  She denied back pain with coughing, sneezing, or during bowel movement.  Physical examination recorded “active full range of motion (ROM) of the neck, upper extremities, back and lower extremities.”  Tenderness to palpation was noted throughout the back.  Neuromuscular examination was not in evidence.  

The VA Compensation and Pension exam was accomplished 6 weeks after separation.  The CI reports daily low and mid-back pain with occasional radiation into her right hip.  She has stiffness but no weakness, and takes pain medication as needed.  She has trouble getting out of a bathtub, and cannot drive more than 3 hours without pain.  She is able to accomplish all activities of daily living.  Physical examination recorded ROM flexion of 90 degrees (90) and extension to 15 (30) degrees, with a combined ROM of 205 degrees (240).  The examiner noted painful motion with extension and lateral rotation, and also noted ROM is not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use.  Tenderness to palpation of the mid-back was noted; however, spasm or weakness was absent.  The examiner noted absence of incapacitating episodes and normal motor and sensory exam. 

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the condition 10% for painful motion analogously coded 5237 (lumbosacral strain) The VA rated 10% based on ROM (205-combined), coded 5237.  A higher rating of 20% requires spasms producing abnormal gait, or abnormal curvature of the spine, or forward flexion not greater than 60 degrees.  The Board reviewed the available treatment records and encountered ROM measurements documented by physical therapy one month after the NARSUM exam.  That record recorded ROM flexion to 95 degrees and 35 degrees of extension. The Board agreed there was pain on motion supporting the 10%; however, there is insufficient evidence to support the higher rating of 20% under range of motion code.  There was no evidence of incapacitating episodes for a higher rating under 5243.  There is no additional code to consider for a rating higher than the minimal compensable 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 back pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that 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.  The Board noticed there was a paucity of clinical notes pertaining to the mental health (MH) condition.  The memorandum addressed to the service authored by the chief of psychiatry dated 3 months before separation documented the CI participated in MH treatment beginning in April 2008.  It indicated that her condition was medically acceptable, and that she should be given an S2 profile.  That profile dated 8 July 2008 recorded an S2 without a MH diagnosis and did not contain any restrictions related to MH.  The CI could carry and fire a weapon.  The NARSUM noted that the CI took an antidepressant medication for anxiety and depressive symptoms and an antidepressant for sleep disturbance.  Both medications were prescribed in low doses, and the medication profile documented two-week prescriptions for both medications with no refills.  

The Board also noted that depressive disorder condition was not implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance based evidence from the record that this condition 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 depressive disorder condition 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 chronic thoracolumbar pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended 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 20140530, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXX, AR20160003822 (PD201402598)

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