RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04353
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060106

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard, E4, Unit Supply Specialist, medically separated for “chronic low back pain without neurologic abnormality” 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 - 20050512	VARD - 20070119	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain without Neurologic Abnormality	5299-5237	10%	Mild Central Disk Protrusion L5-S1	5237	NSC	STR	
Post-Traumatic Stress Disorder	Not Unfitting	Post-Traumatic Stress Disorder	9411	NSC	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain condition began in 2003 after a weapons rack he was lifting fell on top of him.  He was diagnosed with degenerative disc disease and treated conservatively with medications, physical therapy and injections; however, his low back pain worsened over the years.   Magnetic resonance imaging (MRI) of the lumbar spine in August 2005 documented mild central disk protrusion at L5-S1 without evidence of nerve root involvement. Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for a MEB.  

At the MEB NARSUM exam dated 11 August 2005, 5 months prior to separation, the CI reported his pain intensity was a 7/10 and that lifting, prolonged sitting or lying, and running aggravated the pain.  He found it difficult to find a comfortable sitting position and the pain awakened him at night.  The examiner noted an absence of tenderness on palpitation to the lumbar or paraspinal area.  Muscle strength was normal (5/5) in all extremities, but the right leg “[gave] away” with resistance secondary to pain.  Range-of-motion (ROM) of the spine documented flexion to 78 degrees (normal 90), and extension to 25 degrees (normal 30) with a combined ROM of 240 degrees (normal).

At a remote VA Compensation and Pension (C&P) exam dated August 2003 (32 months after separation), the CI reported that he continued to have low back pain with occasional radiation to the right and left lower extremities.  He was taking an anti-inflammatory medication on an as-needed basis.  Physical exam noted forward flexion to 90 degrees and extension to 30 degrees.  There was tenderness to palpation, but spasm was absent.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using analogous code 5299-5237 (lumbosacral or cervical strain), citing pain without neurologic abnormality, ROM over 235, and pain rated as slight/constant using the US Army pain policy.  The Board noted the earliest VA evaluation was 32 months after the date of separation.  The Board’s assessment must be derived from evidence that provides information regarding the status of the disability at the time of separation. Therefore the evidence from the service treatment record was assigned the determinant probative value with respect to the Board’s recommendations. The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and for combined ROM (greater than 120 degrees but not greater than 235 degrees) reported by the MEB examiner.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional 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 chronic low back pain condition.

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the post-traumatic stress disorder (PTSD) condition was not unfitting.  The Board’s threshold for countering 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.  

The PEB noted, by the CI’s report, that he had PTSD since 1991.  He was mobilized July 2003-August 2004 without incident, and was medically cleared for deployment in 2005.  The record showed that the CI was evacuated from Iraq 2 days after he expressed homicidal thoughts towards a fellow Soldier.  The movement order indicated he was being evacuated because he reported a previous history of PTSD and needed an evaluation.  The initial psychiatric evaluation in Germany on 9 June 2005 indicated that the CI was evacuated from Iraq for “further treatment.”  The CI reported he had a prior history of PTSD with an aversion to cooking smells which reminded him of burning flesh, and other symptoms to include distancing, hypervigilance, nightmares and recollections.  He reported that “in many ways he was doing better with deployment” but still had some sleep issues.  The examiner noted the CI had done well since his evacuation, and that he hadn’t seemed depressed, and had not spoken of suicide or violence. He was managed on an outpatient basis while in Germany with a normal MSE documented on 11 July 2005. 

At the PEB psychiatric NARSUM exam on 1 August 2005, the treating psychiatrist recorded the CI’s main complaint as “my anger.” The CI reported that he began having anger problems after the first Gulf War in 1991 when he served with a military police unit, and that his symptoms had worsened over time. The MSE recorded poor memory, poor judgment, and mildly depressed and anxious mood and affect.  The examiner wrote, “His clinical and functional status is judged to be stable based on the chronicity of his symptoms without significant change over several years of intermittent treatment.”  Although the NARSUM documented that the CI was referred to a combat stress detachment and eventually medically evacuated due to “continuing symptoms of PTSD and particularly extreme irritability,” this was not consistent with the record as noted above. 
 
The PEB stated that the CI was evacuated from Iraq for symptoms that had been diagnosed as adjustment disorder and personality disorder and that “despite reported history of chronic PTSD there is no evidence of service aggravation.”  Evaluations by multiple examiners assessed different diagnoses (adjustment disorder with mixed emotional features, anxiety disorder NOS, personality disorder).  A clinic entry dated 1 month after the NARSUM, noted the diagnosis of anxiety disorder and that the CI did not have high irritability or hostility; and insomnia, depression, and nightmares were absent.  He did not demonstrate emotional lability, and had no concern about work-related health problems.  At the last service treatment visit, 3 weeks before separation, the CI was vague regarding specific symptoms and he focused mostly on frustration with the PEB for stating his symptoms were due to a “personality disorder.”  He described occasional vague suicidal thoughts but had no plan or intent.  He reported he had frequent thoughts of wanting to harm others (anyone who says anything irritating to him) with no specific victim/plan and was “clear that this [was] a chronic symptom.”  The CI reported he had used cocaine heavily in the 3 weeks prior to the visit and that his urine test came up positive.  He stated that this was a one-time use out of frustration with a female friend who had reported him for threatening to harm her; the CI denied any intent to harm her.  His MSE was normal except for anxious, irritable, depressed mood, and a constricted affect.  The Board noted that despite the report of significant anger issues, there was no evidence of violence or legal issues, and the CI was not hospitalized for a mental health condition.  The Board reviewed the November 2005 chain of email regarding the CI’s assertions of traumatic combat exposure during his deployment despite verification from the unit commander that he had never left his forward operating base.  The Board also considered the initial psychiatric evaluation in Germany referenced above.  Although PTSD was profiled by the MEB examiner, it was not clear if that examiner had access to the medical evacuation documents and/or the post-evacuation evaluations. The condition was not specifically mentioned in the commander’s statement. The PTSD condition was reviewed and considered by the Board.  There was no performance-based evidence from the record that the PTSD 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 PTSD condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended PTSD 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.  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 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 AR20160006108 (PD201404353)

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