RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-02956
BRANCH OF SERVICE:  ArmY		SEPARATION DATE:  20070824

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Automated Logistical Specialist, medically separated for “chronic back pain…,” with a disability rating of 10%.

CI CONTENTION:  “Please consider all conditions.”  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 - 20070626	VARD - 20071023	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain due to DDD without Neurologic Abnormality	5299-5242	10%	Herniated Disc L4-5…	5243	20%	20070804	
			Right Lower Extremity Radiculopathy	8599-8520	10%	20070804	
Adjustment Disorder with Depressed Mood	Not Unfitting	Adjustment Disorder and Personality Disorder	9499-9400	NSC	20070804	
COMBINED RATING:  10%	COMBINED RATING FOR ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Chronic Back Pain (subsuming Radiculopathy).  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented a chronic history of back pain dating to a fall in 2001 (and varying accounts of a later onset with different mechanisms).  There was a subsequent complaint of right lower extremity (RLE) pain and imaging in 2006 demonstrated degenerative disc disease (L4/5 with right neural encroachment).  A neurosurgical consultant documented subjective complaints of RLE weakness, but a comprehensive neurological examination was normal (5/5 strength, normal sensory), and surgery was not recommended.  Multiple normal neurological examinations were evidenced in the STR, with none to the contrary.  The last outpatient entry prior to the NARSUM documented RLE pain and sensory symptoms, but no subjective weakness and “no difficulty walking or running.”  There were some STR entries noting grossly normal range of motion (ROM) and others indicating non-specifically decreased ROM, with none providing measured ROM evidence.  There was no probative STR documentation of severe ROM limitation or incapacitating episodes.
  
The NARSUM was conducted 23 April 2007 (4 months prior to separation) and documented “moderate and intermittent-to-frequent” low back pain with “occasional” RLE pain, and did not mention subjective RLE neurological complaints or specify functional limitations.  The NARSUM physical examination did not address spinal findings or ROM, but detailed neurological findings of 5/5 motor strength but “mild decreased sensation in her right lateral calf and lateral foot.”  The NARSUM addended physical therapy ROM measurements (performed 2 weeks earlier) of average flexion to 35 degrees (normal 90) and combined ROM of 170 degrees (normal 240).  The PT examiner also documented a normal gait and spinal contour with positive tenderness and guarding.

A VA Compensation and Pension (C&P) examination was conducted 4 August 2007 (3 weeks prior to separation) and documented “daily pain in the lower back and right leg” rated 7/10 and exacerbated by prolonged sitting and shopping.  The CI complained of “numbness and tingling at times in the foot and toes ... [and] ... times that she is unable to walk due to the right leg pain and stiffness in the back.”  The VA physical examination recorded a normal gait and spinal contour, tenderness, and normal strength and neurological findings except for “decreased sensation over the right lateral foot.”  The VA measured ROM was flexion to 45 degrees, extension to 5 degrees (normal 30) and bilateral flexion to 15 degrees (normal 30).  The examiner stated “rotation was not performed due to pain,” thus combined ROM could not be ascertained.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition 10% coded 5299-5242 (analogous to degenerative arthritis of the spine) stated that ROM was “limited by pain,” implying application of Army Regulation 635-40 (B-29, e), since the PT ROM measurements were consistent with VASRD §4.71a criteria for a 20% rating.  The VA’s 20% rating under 5243 (intervertebral disc syndrome) was premised on the C&P ROM evidence.  There was no evidence supporting a rating higher than 20% and no evidence for incapacitating episodes to achieve a higher rating under that formula.  Members carefully considered whether additional rating for the right lower extremity radiculopathy, as conferred by the VA, could be recommended.  The Board requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to Service disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The intermittently documented sensory component in this case had no functional implications, and no objective motor weakness was in evidence.  There was thus no evidence of significant functional impairment from the associated radiculopathy, and the Board could not support a recommendation for service rating on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a 20% rating for the chronic low back pain; proposing code 5242 for its clinical compatibility.

Contended Mental Health (MH).  The first STR evidence for MH issues was an entry from October 2006 (10 months prior to separation, during MEB proceedings for the back condition) documenting a presentation to behavioral health with a complaint of feeling “stressed, depressed.”  There was a later MH entry that treatment was being terminated for failure to keep appointments.  The next entry was in May 2007 for an emergency evaluation of suicidal ideation for which the CI was referred to outpatient care.  A psychiatric evaluation for the MEB was conducted 7 days later.  The addendum to the NARSUM provided the Axis I diagnosis submitted to the PEB (adjustment disorder with depressed mood) and opined that “the symptoms are not of significant severity to impact the Soldier's functioning and the Soldier is therefore fit for duty.”  There was no evidence of any psychoactive medication prescribed in service and there was no psychiatric profile at any point.  The commander’s performance statement described the CI’s performance as “exemplary” within the constraints of her physical limitations, and made no note of MH symptoms or diagnosis.  The post-separation VA C&P psychiatric examiner (same date as general C&P examination above) did not arrive at an Axis I diagnosis; but, made an Axis II diagnosis of personality disorder and opined that the MH symptoms were “mild or transient.”

The Board’s main charge is to assess the fairness of the PEB’s determination that the MH condition was not unfitting.  The Board’s threshold for countering service fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Although it was clear that the CI manifested some MH symptoms at separation, there was no performance-based evidence that countered the MEB psychiatric opinion that that there was no MH impairment that would have precluded further service.  The S1 profile, the commander’s opinion, and the lack of any evidence from the STR suggesting significant functional impairment from MH symptoms were additional compelling arguments supporting a conclusion that the MH condition was not unfitting in this case.  After due deliberation in consideration of the preponderance of the evidence, members agreed that there was insufficient cause to recommend a change in the PEB fitness determination for the MH condition.

BOARD FINDINGS:  In the matter of the chronic low back pain, the Board unanimously recommends a Service disability rating of 20%, coded 5242, IAW VASRD §4.71a.  In the matter of the contended mental health condition (adjustment disorder with depressed mood), 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5242	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140614, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMA-RB

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

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXXXX, AR20160007948 (PD201402956)

1 . 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,
accept the Board's recommendation to modify the individual's disability rating to 20%
without re-characterization of the individual's separation. This decision is final.

2. I direct that all the Department of the Army records of the individual concerned be
corrected accordingly no later than 120 days from the date of this memorandum.

3. I request that a copy of the corrections and any related correspondence be provided
to the individual concerned, counsel (if any), any Members of Congress who have
shown interest, and to the Army Review Boards Agency with a copy of this
memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:
CF:
( ) DoD PDBR
( ) DVA