RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	     CASE:  PD-2014-03908
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090108

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6, Heavy Construction Equipment Operator, medically separated by the Informal Physical Evaluation Board (IPEB) for “spinal fusion, L5-S1” with a disability rating of 20%.

CI CONTENTION:  CI contends that he was not evaluated for other conditions.  His 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 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 - Dated 20081001	VARD - 20090204	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion, L5-S1	5241	20%	Residuals, L5-S1 Disk Fusion with Lumbar Radiculopathy	5241	20%	20090204	
Anxiety Disorder	Not Unfitting	Depression Disorder with Insomnia	9434	100%	20090204	
Bilateral Wrist Pain	Not Unfitting	Left Wrist Pain	5299-5215	NSC	20090204	
		Right Wrist Pain	5299-5215	NSC	20090204	
Restless Leg Syndrome	Not Unfitting	No VA Placement	
Other MEB/PEB Conditions x 3 (Not In Scope)	Other x 8 	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:

Spinal Fusion, L5-S1 Condition.  The service treatment records note the CI had a long and chronic history of low back pain (LBP) dating back to 2000.  His treatment with physical therapy and pain management began in 2000.  Records did not reflect a traumatic injury prior to 2002; however, treatment entry in April 2003 recorded that the CI had “initial injury 2 years ago.”  The CI in 2002 reportedly had a magnetic resonance imaging (MRI) scan that showed facet hypertrophy of L3-4, and L4-L5.  In December 2002, he was evaluated in the emergency room (ER) after he slipped on ice and fell backwards landing on his back.  He complained of pain across the low back radiating to the lower right leg.  In April 2003, the CI reported increased LBP after falling during a hike.  He was medically evacuated for additional treatment.  In addition to the LBP, the CI also reported shooting pain down both legs and noted that his left leg was numb to the knee level.  Treatment entry dated 27 May 2003 recorded the CI’s report that since the fall in December 2002, he had constant LBP with right-sided weakness, numbness, and tingling over the anterior of his right leg to his knee along with left-sided numbness and tingling over the anterior aspect of the left knee.  He has been prescribed rest and anti-inflammatory medications with little benefit.  Physical examination recorded lumbar forward flexion to 90 degrees (normal 90) and extension to 7 degrees (normal 30).  MRI of the lumbar spine dated 4 June 2003 documented normal neural foramen bilaterally, and the possible presence of muscle spasm. Electromyogram and nerve conduction studies performed in July 2003 showed some signs of denervation of the bilateral L5-S1 innervated muscles, and some features of peroneal compressive neuropathy.  Neurological evaluation in July 2003 noted an MRI had demonstrated disc bulge at L5-S1, and mild degenerative disk disease.  An attempt to perform laser discectomy was unsuccessful due to his anatomy (prominent iliac crest that inhibited progression of the laser). Surgery service opined that the CI would be better off with conservative management versus surgery at this point.  In November 2003, the CI underwent a fluoroscopic guided myelographic procedure of the lumbar spine (computed tomography [CT] scan) that demonstrated mild spinal canal stenosis at L4-5 and L5-S1, opined to be secondary to mild disk bulges, congenital short pedicles, and mild ligamentum flavun and facet joint hypertrophy.  The CI continued conservative treatment with minimal benefit.  In March of 2007, he underwent lumbar fusion surgery at L5-S1 without complications.  He initially did very well; however, shortly after his surgery, he fell down stairs and had an increase in his pain.  Despite efforts to provide pain control, the CI continued to have back pain, as well as pain into the posterior aspect of his legs.  At the narrative summary exam (NARSUM), 19 May 2008, approximately 8 months before separation, the CI reported that the further he walked, the worse he limped, and he had spasms into his lumbar spine.  He took narcotic medication for pain which was of limited benefit.  Physical examination recorded he was in no apparent distress, and there was no evidence of neurological compromise, and motor exam was normal.  The examiner wrote, “Review of his range of motion shows that it is mildly decreased and is painful.”  Range-of-motion (ROM) recorded for the MEB was documented on 4 April 2008.  It was noted that the CI had forward flexion (on average of three trials) of 73 degrees, and extension at 2 degrees, with pain during testing.  An addendum to the NARSUM dated 31 July 2008 recorded the physical finding of “some” paraspinal muscle spasm.

The VA Compensation and Pension (C&P) examination was accomplished 1 month after separation.  The CI reported he had at least 6 incapacitating episodes during the last year and that he continued to have difficulty with increased pain with daily activities.  Bending, bathing, and toileting all caused increasing pain in his low back.  He was not employed.  He could not drive more than 2 hours because of back pain and this pain interfered with sleep.  Examination recorded diffused tenderness in the low back, and forward flexion to 80 degrees (normal 90) and extension to 20 degrees.  The examiner noted increasing pain on repetition accompanied by fatigue, lack of endurance, and decrease in ROM (forward flexion to 70 degrees).  There was a spasm of the paravertebral muscles without weakness with tenderness along the paravertebral area.  Neurological examination was unremarkable, and motor strength was normal.

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the condition at 20%, coded 5241 (spinal fusion) for abnormal gait due to spasm or guarding.  The higher rating of 40% under the general spine codes requires forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine; not supported by the evidence.  The Board also noted code 5243 (intervertebral disc syndrome) was not applicable in this case since there was no evidence to support radicular symptoms producing functional limitation.  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 PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the anxiety disorder, bilateral wrist pain, and restless leg syndrome conditions were 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.

Anxiety Disorder.  The Board undertook an extensive review of the available treatment record and noted the CI was initially diagnosed with an adjustment disorder and partner relational problems.  After returning from Iraq, he and his wife experienced significant marital discord. He participated in counseling on a regular basis and was later diagnosed with depression and prescribed psychotropic medications to address his problems with sleep and anxiety.  The record documented an intentional overdose in December 2006 after his wife left him.  In August 2007 he was served with divorce papers.  In November 2007, the CI presented to the ER with the complaint of anger.  He noted that he was angry at his wife and began punching the furniture.  He was not suicidal or homicidal.  At a follow-up mental health (MH) visit in May 2008, the CI expressed difficulty getting over his wife’s filing for divorce.  In June, his diagnosis was revised to anxiety disorder not otherwise specified (NOS), during a comprehensive psychiatric evaluation with review of records.  The psychiatric NARSUM was accomplished 6 months before separation.  The NARSUM noted that the CI reported sleep problems during his deployment.  He noted that his anxiety symptoms began while deployed after finding out troubling information from home.  He returned home on leave and while home he and his wife had an altercation.  Neighbors had stated that the CI’s wife had been having an affair.  He became depressed, but returned to Iraq.  He began feeling suicidal with a plan; however, decided he should not take his life.  He stopped feeling suicidal though he was pending a divorce.  He was receiving substance abuse outpatient treatment.  His mental status examination (MSE) was unremarkable.  The physician diagnosed anxiety disorder NOS, and noted that his anxiety and depression symptoms were not impairing from a military standpoint.  However, it was opined that the “sequelae will cause problems whether on or off active duty.”  The psychiatrist did not elaborate on that statement.  In July 2008 the CI was admitted to a drug rehab program for prescription opiate dependence.  A psychiatry entry dated approximately 4 weeks before separation indicated the CI’s sleep improved as he was now sleeping 5-6 hours nightly. Approximately 1 month after separation the CI underwent neuropsychological evaluation and was once again diagnosed with an adjustment disorder.   The CI reported that he was divorced and looking to gain shared custody of his two children.  The VA C&P mental evaluation documented that the CI had generally mild depressive symptoms that “would have only mild impact on employment functioning and mild impact on social functioning.”  The MSE was normal.  The VARD indicated that the treating psychiatrist noted the CI had inappropriate behavior, persistent danger of hurting others, and auditory hallucinations.  This is not consistent with the treatment record or the VA C&P.

Bilateral Wrist Pain.  The record is silent in regards to treatment for this condition.  However, in March 2008, the CI complained of a 3-4 month history of bilateral wrist pain.  Radiographs dated 4 March 2008 documented normal bilateral wrist.

Restless Leg Syndrome.  The CI presented to the pulmonary clinic in May 2008 with the complaint of insomnia due to stress.  He was diagnosed with restless leg syndrome which was treated with mirapex and behavioral therapy (avoid caffeine, tobacco and alcohol).

The bilateral wrist pain and restless leg syndrome conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  Although the anxiety disorder NOS condition was profiled by the NARSUM psychiatrist, specific MH restrictions were not elucidated.  The profile noted that he should follow-up at all MH appointments and that a profile was completed for his MEB.  No MH condition was implicated in the commander’s statement and none was judged to fail retention standards.  The NCO evaluation report period between June and December 2007 recommended he be promoted.  There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation, and 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 any of the above contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the spinal fusion condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended anxiety disorder NOS, bilateral wrist pain, and restless leg syndrome conditions, the Board unanimously recommends no change from the PEB determinations 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 20140902, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 (PD201403908)

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