RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04262
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080427

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Indirect Fire Infantryman, medically separated for “lumbosacral strain” 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 - 20080305	VARD - 20090401	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain	5237	10%	Chronic Low Back Pain with Disc Bulge	5237	10%	20090223	
PTSD	Not Unfitting	PTSD to Include Adjustment Disorder, Depression And Insomnia	9411	50%	20081112	
Atypical Depressive Disorder	Not Unfitting					
Chronic Insomnia	Not Unfitting					
Latent Tuberculosis	Not Unfitting	No VA Placement	

Bilateral Knee Pain
	Not Unfitting	Left Knee Condition	5299-5260	0%	20090223	
		Right Knee Condition	5299-5261	0%	20090223	
Left Shoulder Pain	Not Unfitting	Left Shoulder Injury	5201	0%	20090223	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Lumbosacral Strain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI began experiencing low back pain in May 2005 during basic training and sought medical attention prior to his first duty assignment in August 2005.  He was evaluated and treated conservatively with medications and physical therapy.  He was cleared for deployment to Iraq, and while deployed, re-injured his back in April 2006 and returned to physical therapy.  In December 2006, a magnetic resonance imaging (MRI) of the lumbar spine indicated “very slight bulge of L4-L5 disc,” without evidence of nerve root involvement.  Upon referral to a pain specialist, the CI received facet injections which did not provide sustained relief.  Despite treatment, his back condition could not be adequately rehabilitated to meet the physical requirements of his military specialty and he was referred for an MEB.  The MEB forwarded “chronic low back pain with mild herniated disc at L4-5” for PEB adjudication.

At the MEB NARSUM examination dated 22 August 2007, 8 months prior to separation, the CI denied any history or radiation of pain into the lower extremities or any weakness.  He rated his average daily pain at 7/10 in intensity.  His pain was aggravated with increased activity.  Physical examination documented tenderness to palpation of the lower back and a palpable spasm.  Range-of-motion (ROM) of the spine documented an average flexion of 97 degrees with three trials (normal 90), and an average extension to 29 degrees (normal 30).

At the VA Compensation and Pension (C&P) examination in February 2009, 11 months post-separation, the CI reported continued low back pain precipitated by prolonged sitting, standing or walking.  Over-the-counter medications reduced the pain.  Physical examination noted forward flexion to 70 degrees with pain at 70, and extension to 20 degrees with pain.  

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating, using code 5237 (lumbosacral strain), for tenderness and “non-deforming spasm.”  Likewise, the VA granted a 10% coded 5237 based on decreased ROM.  The Board agreed that a 10% rating, but no higher, was justified for tenderness and muscles spasm not resulting in abnormal spinal contour as reported in the NARSUM and limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as documented by the VA examiner.  There was no evidence of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating using code 5243 (intervertebral disc syndrome).  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 lumbosacral strain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the PTSD, atypical depression, chronic insomnia, latent tuberculosis, bilateral knee pain, and left shoulder pain 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.  

PTSD, Atypical, Depressive Disorder and Chronic Insomnia.  According to service treatment records, the CI was diagnosed with adjustment disorder with depressed mood in August 2005 on two separate occasions with two different mental health (MH) providers.  The CI had served 5 months in the military at the time of his initial MH evaluation on 29 August 2005.  At this examination, CI reported that he was not happy with the military, felt his recruiter had lied to him and wanted out of the service.  He missed his family and his wife was pregnant and due in 3 months.  He was angry and frustrated, and had sleep problems.  On 2 November 2005, a social worker entry documented that the CI reported no mental health concerns.  His sleep had improved, and he had only “one bad dream” since 12 August.  Treatment records were silent for nearly 2 years.  On 15 August 2007, the CI was referred to MH after completing questionnaires suggestive of depression and PTSD. The psychiatric evaluation documented domestic issues including physical altercations with his spouse.  The CI reported that he was a survivor of the New York City Twin Towers attack, and that he had stress resulting from this incident as well as exposure to combat.   Symptoms of PTSD were not recorded by the psychiatrist, but the examiner stated the CI had endorsed “every single symptom almost maximally, which on interview he confirmed…Suggestive of severe distress.”  The diagnoses of delayed PTSD, and atypical depressive disorder were recorded.  The atypical depression was opined to be related to his medication for treatment of tuberculosis.  The examiner also diagnosed insomnia related to his non-MH conditions.   At a 29 August psychiatry visit, the CI presented with complaints of sleep problems and was prescribed a 14-day prescription for a sleep aid with no refills.  He stated that he had been working on his mood, and reported, “I do feel a little better.”  There was no mention of any classic PTSD symptoms.   His MSE was normal except for anxious mood and affect.  There were no additional MH visits documented.    The NARSUM referenced the psychiatric evaluation of 15 August, and noted that PTSD was profiled as S3 and that the psychiatrist opined his impairment for further military duty was felt to be “marked.”  The conditions of atypical depression and insomnia were profiled as S2 conditions.  The NARSUM examiner also referenced the initial diagnosis of adjustment disorder with depressed mood assessed in August 2005 and documented that the PTSD condition fell below retention standards; however, the other MH conditions met retention standards.  Board members agreed that evidence in the record reflected minimal mental health related symptoms and good duty performance (as related to mental functioning) in the period of time leading into the MEB; and although the conditions were profiled, the commander statement documented the CI should be considered fit for “reasonable performance of his military duties…and be considered for continued active duty service and MOS re-classification.”  The Board also considered the CI’s request to be found fit for continued duty.  He argued that he could perform the duties listed on his profile and that none of the limitations related specifically to his MH conditions.    Board members concluded there was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  

The latent tuberculosis, bilateral knee pain, and left shoulder pain conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.   All were reviewed and considered by the Board.  There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance at separation.  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 contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the lumbosacral strain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended PTSD, atypical depression, chronic insomnia, latent tuberculosis, bilateral knee pain, and left shoulder pain 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 20141103, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record
SAMR-RB

28 JUL 2016

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, AR2016001 0236 (PD201404262)

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