RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04366
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061208

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E4, Heavy Construction Equipment Operator, medically separated for “chronic low back pain…” and “bipolar II disorder…,” rated 10% and 0%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI requested consideration of 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 based on 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 - 200610106	VARD - 20080129  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5243	10%	Intervertebral Disc Syndrome…	5243-5236	40%	20070306	
Bipolar II Disorder…	9432	10%	Bipolar Disorder	9432	30%	20070306	
			Post Traumatic Stress Disorder	9411	NSC	20070306	
Right Knee Pain	Not Unfitting	Right Knee Degenerative Joint Disease	5003	10%	20070306	
Headaches, Chronic Migraine	Not Unfitting	No VA Placement	
Carpal Tunnel Syndrome	Not Unfitting	Right Hand Injury	5299-5215	NSC	20070306	
Amenorrhea	Not Unfitting	Gynecological Condition	7699-7613	NSC	20070306	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 9 	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) condition began in August 2003 and was aggravated by a HMMWV accident in October 2003.  In June 2004 the CI also reported urinary frequency and incontinence.  Lumbar magnetic resonance imaging showed a herniated disc at L5-S1 and electrodiagnostic studies showed a right L5 radiculopathy.  The CI underwent disk surgery in August 2004 and the urinary symptoms resolved, but the LBP with right thigh pain continued.  Repeat lumbar MRI in November 2004 showed possible recurrent L5-S1 herniation or scar tissue and epidural steroid injections or repeat surgery were recommended. The CI sought a second surgical opinion and the MRI was repeated again in March 2005 and showed a recurrent L5-S1 herniation and disc protrusion at L4-L5.  At that time the CI reported feeling better, was neurologically stable, and did not want further surgery and two surgical opinions agreed with this course of treatment.  The CI continued with significant LBP and right leg pain.  She underwent two procedures with pain medicine for lysis of epidural adhesions in November 2005, which did not resolve the LBP.  The MEB forwarded “Low Back Pain S/P Disc Herniation and Discectomy” for PEB adjudication.

Physical therapy (PT) thoracolumbar (TL) range of motion (ROM) for the MEB was initially measured in January 2006.  Back ROM was recorded as 20 degrees flexion (normal 90 degrees) with painful motion.  In May 2006, primary care referred the CI to orthopedics for evaluation of non-organic physical signs.  The orthopedic evaluation noted the presence of three out of five non-organic physical signs (pain with axial loading of the spine, discrepancy of findings with distraction, and overreaction during the exam).  A neurological evaluation for migraines on 9 June 2006 noted a normal gait and full strength.  At a second PT evaluation for the MEB on 23 August 2006, the CI reported constant LBP that radiated to the back of the right knee.  There was tenderness to palpation of the lumbar muscles and straight leg raise testing (SLR) to elicit radicular symptoms was positive on the right.  Back ROM after three repetitions was flexion of 70 degrees and combined ROM of 180 degrees (normal 240 degrees) with painful motion. 

At the MEB examination dated 24 August 2006, 3 months prior to separation, the CI reported LBP that radiated to the right buttock.  Physical examination showed pain with changing positons during the exam.  There was pain with flexion at 70 degrees (normal 90 degrees) and SLR was positive bilaterally.  At a primary care visit 28 August 2206, the CI reported a flare-up of back pain graded 9/10, with right buttock pain, but no radiation down the leg.  The CI was able to sit straight on the examination table and converse normally.  Gait and stance were normal.  The examination noted the CI seemed mildly uncomfortable, but was not in acute distress and her stated pain level appeared inconsistent with her presentation.

The MEB NARSUM examination on 29 August 2006, 3 months prior to separation, noted complaints of LBP aggravated by activity.  The CI was taking anti-inflammatory medication and medication for nerve related pain.  The physical examination cited the MEB examination and noted neurological examination of the lower extremities (LE) was normal.  The MEB examination cited the physical therapy ROM noted above. 

At the 6 March 2007 VA Compensation and Pension (C&P) evaluation, performed 3 months after separation, the CI reported LBP with numbness and paresthesia with radiation to the right buttock and leg, but no LE weakness.  She denied bowel or bladder problems.  She denied flare-ups or incapacitating episodes.  She was using a cane and reported she could walk up to a quarter of a mile.  Physical examination showed an antalgic gait.  The CI was noted to have an abnormal posture with her pelvis tilted to the left and stooped.  There was no tenderness, guarding, or muscle spasm of the thoracolumbar spine and no LE weakness.  LE strength, sensation, and reflexes were normal.  Thoracolumbar flexion was 20 degrees and extension and lateral flexion were noted to be less than 5 degrees each (normal for each 30 degrees), and bilateral rotation was 10 degrees (normal 30 degrees).  There was painful motion.  There was no additional loss of ROM with repetition.  There was no TL ankyloses.  LE motor and sensory examination was normal and SLR was negative.  There were two out of three non-organic physical signs noted by the examiner. 
At a VA pain clinic intake on 5 April 2007, 4 months after separation, the CI reported the same symptoms of LBP with right buttock pain and posterior right knee pain, increased by activity.   She reported she leaned to the left to decrease the pain.  She reported walking and swimming for exercise.  The examiner noted her legs were strong.  

The Board directed attention to its rating recommendation on the above evidence.  The PEB rated the low back condition 10%, coded 5243 (intervertebral disc syndrome [IDS]), citing mechanical decreased ROM with pain of 76 degrees (passive ROM at PT MEB exam, but active ROM was also greater than 70 degrees).  The VA had rated the back condition 10% following an earlier period of active duty, which was continued following separation.  The VA increased the rating for the back condition to 40%, coded 5243-5236 (IDS-sacroiliac injury and weakness) based on the VA C&P examination 3 months after separation, citing limitation of motion of less than 30 degrees flexion.  

Multiple examiners in record noted signs of symptom exaggeration on examinations, including the post-separation C&P examiner.  Therefore, the Board did not rely on the discordant ROM measurements noted at the PT MEB and C&P exams as the sole basis for a disability rating and considered other ratable criteria in evidence.  There was no evidence of muscle spasm at the MEB NARSUM or VA C&P exams.  There was lumbar tenderness noted at the PT MEB examination.  A primary care visit 5 days later noted the CI was able to sit straight on the examination table and was not in acute distress, though reporting 9/10 pain.  At the VA C&P examination 3 months after separation, the findings (antalgic gait, stooped posture, and tilted pelvis).  However, these findings were not consistent with the objective findings of no muscle spasm, tenderness or guarding noted in the same examination and non-organic physical signs were present.  The Board concluded that based on the consistent concern over the reliability of examination findings noted at examinations in record, there was insufficient support to recommend a higher rating than 10% at the time of separation.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  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.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain and urinary symptoms treated with surgery.  Following the surgery the urinary symptoms resolved but LBP and radiating pain persisted; however, all examinations indicated normal LE strength, sensation and reflexes.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  Radiating pain from the low back condition is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates)” and there was no evidence in this case that motor weakness or a sensory deficit existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  

Bipolar II Disorder.  According to STR and the MEB NARSUM, the CI’s Bipolar II disorder began in December 2004 after return from deployment in Iraq.  The CI was referred to MH by her primary care provider after a conversation with a case manager during which she spoke very rapidly, was difficult to interrupt, and went on tangents unrelated to MH when she was asked about her MH concerns.  At an initial psychiatric visit with a VA psychiatrist on 3 February 2005, the MH examiner described the CI as an intelligent, dedicated and reliable soldier.  She was described as angry at her recent treatment in the military for other medical problems and he noted “insomnia and PTSD is a major issue.”  On mental status examination (MSE) her affect was pleasant and appropriate, but anger was indicated as the most prominent clinical feature.  There was no formal thought disorder.  She was prescribed a sleep medication, and antidepressant (Prozac and a medication for mood swings (Depakote).  The Axis I diagnosis was PTSD with anger /depression.  Follow-up psychiatric notes indicated the CI had no prior history of MH care.  Behavioral health notes that followed indicated the CI functioned as a security escort during deployment.  She reported MH stressors of a HMMWV accident in which she was the driver and hit a vehicle ahead in a convoy at approximately 20 miles per hour.  A fellow passenger who was injured fully recovered.  The CI was released after overnight observation, but did have persistent back pain and later underwent back surgery.  She also eventually related that she had been ordered to fire into a crowd of children and had witnessed coalition dead during deployment.  She responded very well to treatment which included psychotropic medications and talk therapy, including PTSD group therapy.  A psychiatric note dated 24 May 2006 indicated the CI was much improved and her depression was controlled on medication.  The MEB forwarded “bipolar disorder” for PEB adjudication.  

At the mental health (MH) MEB NARSUM examination on 19 June 2006, 6 months prior to separation, the CI reported “my medication helps me a lot. I feel much better. I feel just about right.”  The MH MEB examiner indicated that he evaluated the CI on 11 April 2006, reviewed all records and had a productive telephone conversation with the CI’s treating VA psychiatrist.  The MH MEB examiner indicated the CI had a “complex psychiatric condition.”  The CI reported mixed emotions about her experiences while deployed, with continued problems with anger management and road rage (which she never acted upon).  She was on many psychotropic medications for her MH condition including two antidepressants, an antipsychotic medication, an anti-anxiety medication, and a medication for mood swings.  She was also on a number of medications for treatment of medical disorders that had potential for psychotropic effects, including a beta-blocker (propranolol), gabapentin (Neurontin), and pregabalin (Lyrica).  The MEB psychiatrist noted that the CI had responded to this array of medications with “remarkable readaptation and clinically noticeable reduction of her symptom clusters.”  He noted the CI’s treating psychiatrist indicated that even the diagnosis of bipolar illness was “at best of atypical proportion.”  The CI showed evidence of a long standing mood disorder and possible underlying thought disorder, as evidenced by “focused obsessive rage aimed at certain drivers.”  There was no history of substance abuse.  On MSE examination the CI was cooperative.  Her mood was normal with a “slightly” flattened affect.  The CI acknowledged road rage focused on some vehicles on the road, with no acting out.  She was compliant with treatment.  The CI reported no sleep problems on her current medications.  Her cognition was improved and there was no suicidal or homicidal ideation.  The Axis I diagnosis was bipolar II disorder and an Axis II diagnosis of obsessive compulsive personality disorder.  The global assessment of functioning (GAF) assignment was 60, which is in the moderate range of impairment on this scale.  The MEB NARSUM psychiatrist indicated the CI was “at present optimally controlled” on her complex pharmacologic regimen that needed to be continued.  He recommended that the CI did not meet retention standards “unless she were to remain attached permanently to an MTF for ongoing treatment access,” and she was not deployable.

The commander’s statement dated 1 February 2006 noted he was not aware of the CI’s medical condition and could not comment.  Two letters from her non-commissioned officers in charge (NCOIC) dated 26 August 2006 and 22 September 2006 indicated the CI was a good soldier and performed well during deployment.  He indicated that even after her HMMWV accident, she had “a CAN DO attitude and never let her injury dictate her performance.”  The NCOIC from the Community Based Health Care Organization (CBHCO) Program indicated the CI worked at a Judge Advocate General's  office 5-6 hours per day performing administrative duties “depending on her current medical condition” and medical appointments.  She functioned well without supervision, she was quick to respond to phone calls, and was always accountable for morning call-in.

At the 6 March 2007 VA C&P evaluation, performed 3 months after separation, the CI reported her medications were working well, with a better mood and less anxiety, but still some sleep issues.  Current medications were noted to be two antidepressants and medication for mood swings.  The CI was unemployed at the time, which the VA MH examiner noted was by choice.  She was planning to return to work and enroll in college without a clear idea of what she would pursue.  The CI was single and lived with a roommate.  She reported she had numerous friends in the military, but was having some difficulty with transition to civilian life.

Regarding PTSD symptoms, the CI reported that her experiences in Iraq changed her.  Regarding traumatic events she described the vehicle accident in which she was the driver and she was injured as well as her passenger, who apparently fully recovered.  An investigation did not find she was negligent-the truck in front of her stopped suddenly and she ran into it.  The examiner asked if there were any other traumatic events and indicated that the CI responded that there was “really nothing else besides the accident.”  The CI was in contact with friends in the military and indicated she would definitely re-enlist.  The examiner noted there was no “real avoidant response.”  The CI reported nightmares sometimes about the HMMWV accident.  She reported she was unable to participate in some physical activities she used to enjoy due to her physical injuries, but did not note loss of interest or pleasure related to MH symptoms or the accident.  On MSE the CI reported her mood as “very depressed”, with mood swings of irritability.  She was well-groomed and speech was normal.  The examiner noted no evidence of true compulsion, hallucinations, or panic attacks.  The CI did report anxiety in social situations, particularly if people were criticizing the military.  She reported a lack of energy and motivation, but the examiner noted her energy level seemed normal.  There were no cognitive deficits noted.  The CI reported “passing thoughts of suicide” with no plans or intent and she had homicidal thoughts regarding a college student with whom she got into an argument about the military, but the examiner noted she was not “truly homicidal” at any time.  The VA examiner commented that the CI reported a few symptoms of PTSD, but not enough to meet diagnostic criteria.  He also indicated the CI was mildly impaired in her overall functioning at the time.  The Axis I diagnosis was bipolar disorder, NOS (not otherwise specified) and the GAF assignment was 62, which is in the mild impairment range on this scale.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bipolar II disorder 10%, coded 9432 (bipolar disorder), citing “mild impact on her social and industrial capabilities.”  The VA rated the bipolar condition 30%, also coded 9432, based on the VA C&P examination 3 months after separation.  The Board noted that the CI was initially diagnosed with PTSD with depression at the VA before separation, however, the MEB psychiatrist, in consultation with the CI’s treating VA psychiatrist diagnosed bipolar II disorder.  Regardless of specific diagnosis, the Board considered whether the application of §4.129 was appropriate based on the evidence of traumatic stressors noted above.  The CI described a few stressful events during deployment, however mainly she focused on the HMMWV accident.  She was initially diagnosed with PTSD, but later was diagnosed with bipolar disorder and the VA examiner concurred that there was little evidence for a PTSD criterion A stressor and although the CI had some PTSD symptoms, she did not meet full diagnostic criteria.  The CI’s supervisor during deployment noted that she had an upbeat attitude even after the HMMWV accident and at the C&P examination the CI reported stress from the HMMWV accident and nothing else.  The CI indicated that she would re-enlist in the military.  After lengthy deliberations, the Board unanimously agreed that the evidence of the record did not support a traumatic stressor as the cause of the mental condition for which application of VASRD §4.129 would be appropriate.  

At both the MH MEB NARSUM and VA C&P PTSD examinations, the CI was noted to be doing well on her medications.  The VA C&P MH examiner noted the CI’s MH condition mildly impacted her social and occupational functioning at the time of the exam.  The NCOIC performance evaluations in record indicated the CI performed her duties well, even after return from deployment and the injuries she sustained in the accident.  All Board members agreed that at the time of separation, the §4.130 threshold for a 50% rating was not approached.  The deliberation settled on arguments for a 10% versus a 30% permanent rating recommendation.  Board consensus was that the CI’s condition at the time of separation did not support the higher 30% disability rating (occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily)) and that her level of impairment was better described as “symptoms controlled by continuous medication.”  The Board therefore recommends a 10% rating for the bipolar II disorder.  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 bipolar II condition.  

Contended PEB Conditions:  Right Knee Pain, Chronic Migraine Headaches, Carpal Tunnel Syndrome, and Amenorrhea.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled or judged to fail retention standards.  The right knee pain, carpal tunnel syndrome, and amenorrhea conditions were not implicated in any of the commander or NCOIC statements.  The chronic migraine HAs condition was noted by the NCOIC during deployment, right after the CI’s HMMWV accident, but there was no evidence that headaches impaired the CI’s duty performance in the second NCOIC letter.  A neurology follow-up in June 2006 noted that the CI’s HAs had substantially improved since a change in her preventive medication and she reported only a couple of HAs since her last visit 3 months earlier.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are 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 bipolar II disorder condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right knee pain, chronic migraine headaches, carpal tunnel syndrome, and amenorrhea 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 20141225, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

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 
XXXXXXXXXXXXXXXXXX, AR20160018432 (PD201404366)

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