RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02612
BRANCH OF SERVICE:  Army	BOARD DATE:  20150527
Separation Date:  20090308

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 Light-Wheel Vehicle Mechanic medically separated for chronic low back pain (LBP).  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The Chronic LBP with lumbar spondylosis and degenerative disc disease (DDD) L4/5 and L5S1 condition, characterized as “lumbar spondylosis,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated the LBP as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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.

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:

Service IPEB – Dated 20081113	VA - (~7 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP with Lumbar Spondylosis with DDD L4/5 and L5S1	5237	10%	Chronic Low Back Condition	5237	10%	20091002	
Other x 0 (Not in Scope)	Attention Deficit Disorder	9399-9435	NSC	None	
	Other x 1	20091002	
Rating:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20090707 and 20100809.

ANALYSIS SUMMARY:

Chronic LBP with Lumbar Spondylosis with DDD L4/5 and L5S1 Condition.  The CI developed a gradual worsening of LBP that localized to L1 and the right sacroiliac joint which started in 2005.  The CI developed signs and symptoms of radiculopathy in both legs with lumbar spine magnetic resonance imaging (MRI) scans in 2005 and 2007 indicating an L4-5 broad based disc bulge and lumbar spondyloarthropathy at L5-S1.  Multiple epidural steroid injections provided only temporary relief and a MRI in February 2008 showed worsening of the disc herniation with nerve root compression.  The CI underwent extensive bilateral L4-L5 disc surgery on 15 February 2008.  The Neurosurgeon noted that the prior leg symptoms had resolved since the L5-S1 and bilateral L4-5 nerve root decompression.  The physical exam findings documented a normal motor and sensory exam; however, there was decreased range-of-motion (ROM) at flexion, extension and rotation secondary to pain.

The MEB narrative summary (NARSUM) exam approximately 7 months prior to separation documented that the CI persisted with severe daily debilitating LBP.  The examiner opined that the CI would require continued follow-up as his symptoms worsened.  The MEB NARSUM physical exam findings are summarized in the chart below.  The MEB NARSUM physical exam findings are summarized in the chart below.  The commander’s statement indicated that the CI experienced pain and could not perform his basic MOS duties.  The CI was sent to PT approximately five months prior to separation for a MEB ROM evaluation.  The PT physical exam findings are summarized in the chart below.

The CI failed to show for four of his VA Compensation and Pension (C&P) exams which were scheduled in both April and June 2009.  The VA C&P exam approximately 7 months after separation documented that the CI had constant LBP and flares of LBP one to two times per week where the pain level would increase to 7/10.  The VA C&P physical exam findings are summarized in the chart below.

There were ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~7 Mo. Pre-Sep	PT ~5 Mo. Pre-Sep	VA C&P ~7 Mo. Post-Sep	
Flexion (90 Normal)	“Decreased active ROM, flexion, extension and rotation due to back pain.”	85	90	
Combined (240)		175	240	
Comment:  Surgery ~13 Mo. Pre-Sep	Strength full, sensory normal	No spasm, guarding or tenderness; lumbar lordosis flattening; no Waddell’s	Painful motion; normal gait; motor 5/5; sensory intact; reflexes 1+-2+	
§4.71a Rating	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded and VA both rated the LBP condition as 5237 (lumbosacral strain) and rated at 10%.  The VA coded the LBP condition as 5237 and rated at 10%.  The “General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  The Board agreed that the PT exam contained a complete set of goniometric measurements and was closer to the time of separation and therefore had a higher probative value, although all exams proximate to separation warranted no higher than a 10% rating under the general spine formula.  The CI met the 10% rating for “range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees.”  There was scant evidence of any radiculopathy following surgical correction, with no motor loss or evidence of impairment of duty functioning.  There was insufficient evidence of an unfitting radiculopathy at the time of separation.  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 low back pain condition.

Contended MH Condition.  There was no MH condition listed on the MEB or PEB.  The NARSUM past medical history stated:  “significant for posttraumatic stress disorder (PTSD), adult attention deficit disorder (ADHD).”  An electronic Standard Form 600 (clinic note) dated 8 September 2008, from tele-psychiatry listed chief complaint of “MEB Addendum” and indicated diagnoses of “Attention Deficit Disorder without Hyperactivity” and Depression Resolved.”

The Board’s first charge with respect to these MH conditions (PTSD, Depression, and/or ADHD) is an assessment of any duty impairment and if any MH condition should be adjudged as unfitting at the time of separation.  The Board’s threshold for adding a new unfitting condition is preponderance of the evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

The record indicated the CI had ADHD diagnosed in high school and did not require medication.  He was seen in September 2007 for marriage counseling and depression and was started on Zoloft (Sertraline an antidepressant) and Adderal (ADHD psychostimulant medication).  At the time of the MEB psychiatry assessment, approximately 6 months prior to separation, the CI denied any symptoms of anxiety or depression.  Mental status exam was essentially normal and the plan was to decrease and stop the Zoloft.  The examiner indicated the CI met psychiatric retention standards and did not require any limitations.  The profile did not list any MH condition and was S1.  The commander’s statement focused solely on the physical medical conditions, there was no mention of a mental health condition that interfered with the CI performing his MOS.

The VA C&P Mental Disorders exam performed approximately 7 months after separation continued the diagnosis of ADHD and aligned with the service records in evidence.  The VA C&P initial PTSD exam performed in May 2011, approximately 26 months after separation, added the diagnosis of PTSD and the VA added a 10% PTSD rating effective in January 2011 based on this exam.

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the Disability Evaluation System (DES).  The evidence of the available records showed diagnoses of PTSD (NARSUM), ADHD (NARSUM and MH addendum) and depression resolved (MH addendum) were rendered during the DES process.  No MH diagnoses were forwarded by the MEB or adjudicated by the PEB; therefore the Board determined that this applicant did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

All MH conditions were reviewed and considered by the Board.  There was no indication from the record that any MH condition significantly interfered with satisfactory duty performance.  IAW DoDI 1332.38, Enclosure 5, ADHD is a condition or circumstance that does not constitute a physical disability, and is therefore not compensable.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend any MH condition as unfitting and, therefore, no additional disability rating can be 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 lumbosacral or cervical strain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended MH condition, the Board unanimously agrees that it cannot recommend any MH condition for additional disability rating.  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 20140424, 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 XXXXXXXXXXXXXXXXXXXX, AR20160003165  (PD201402612)

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 ( ) OVA