RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX	CASE:  PD-2017-03765
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051001

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Signals Intelligence Analyst, medically separated for “degenerative disc disease [DDD] lumbar spine” with a disability rating of 10%.   “Bipolar disorder” was determined to have existed prior to service (EPTS) without permanent service aggravation.  

CI CONTENTION:  The back condition was exacerbated by an additional diagnosis of hyperflexibility syndrome; and symptoms resulting in the bipolar disorder diagnosis were caused by prescribed medication (Darvocet) and largely disappeared after stopping the prescription.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 Medical Evaluation Board (MEB), but determined by the PEB to be not unfitting or non-compensable.  Any conditions outside the panel’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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for the unfitting medical condition(s) at the time of separation.  The panel 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, which operates under a different set of laws.  The panel gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20050809	VARD - 20060417	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DDD, Lumbar Spine	5241	10%	DDD Lumbosacral Spine Post Fusion	5243	10%	20060111	
Bipolar Disorder	9432	EPTS	Chronic Acquired Psychiatric Disorder	9432	NSC	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Lumbar Spine DDD.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered an atraumatic onset of low back pain in 2003 that resulted in surgery (single level fusion at L4/5) in November 2004 (11 months before separation).  Post-operative STR entries documented a good recovery without complications, but insufficient relief to permit a return to full duty.  There was no record of significant range of motion (ROM) limitation, abnormal spinal contour, or associated radiculopathy; and ample post-operative evidence of a normal gait.  There was also no documentation of incapacitating episodes after surgical recovery.  Post-operative X-rays demonstrated normal alignment and hardware placement.

The 28 April 2005 MEB NARSUM examination, 6 months prior to separation, noted CI complaints of persistent nonspecific low back pain that prohibited running and heavy lifting, and was aggravated by prolonged standing or sitting.  The physical examination recorded normal neurological findings without comment regarding gait or other ratable examination findings.  Measured ROM showed flexion to 60 degrees (normal 90) and combined ROM of 200 degrees (normal 240), without addressing painful motion.  The MEB examination (recorded on DD Form 2808) on the same day, was signed by the same provider and documented grossly normal ROM.  

The 11 January 2007 VA Compensation and Pension (C&P) examination, 3 months after separation, documented an exacerbation of the condition a month earlier from a motor vehicle accident (rear-ended).  At the time of the examination, the CI reported constant pain, rated at 5/10, that was aggravated by bending, lifting, and prolonged sitting or standing.  The examiner specified no incapacitation, and recorded a “slight limp,” no tenderness or spasm, no noted abnormal spinal contour, and normal neurological findings.  Measured ROM was normal in all planes, with painful motion but no ROM degradation with repetition. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the lumbar spine condition 10%, coded 5241 (spinal fusion), citing “local tenderness and reduced motion” (acknowledging flexion to 60 degrees).  The VA also rated the condition 10%, but coded 5243 (intervertebral disc syndrome), based on the C&P examination and citing painful motion.  Panel members noted that flexion to 60 degrees, as documented in the NARSUM, is the threshold for a 20% rating IAW the VASRD §4.71a spine formula, and deliberated whether it was justified as the basis for recommendation.  However, the panel ultimately agreed that this sole finding did not carry sufficient probative weight, as it was mitigated by the conflicting DD 2808 examination on the same day, was not corroborated by any other evidence, and was inconsistent with the C&P evidence that was temporally closer to separation.  Panel members also considered the C&P observation of an antalgic gait as another 20% criterion for VASRD spine rating, but agreed that the probative value was also greatly mitigated as it was not correlated with evidence for the requisite spasm and guarding, and may have been a consequence of the recent (post-separation) trauma.  There was ample STR evidence for recovery of a normal gait after surgery, and no record of an abnormal spinal contour to justify a 20% rating on that basis, and there was no evidence for incapacitating episodes to justify a higher rating under that formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lumbar spine condition.

Bipolar Disorder.  The CI denied any psychiatric history at the time of her military entrance examination on 10 December 2001.  Both service and VA provider notes, however, documented a history mental health (MH) symptom onset as early as age 13.  Source STR entries were not in evidence, but VA records referred to service treatment for anxiety and depression in 2003, and a “diagnosis of post-traumatic stress disorder [PTSD] after a rape” in 2005 (pre-separation).  There was no STR evidence for suicidal ideation or other acute features and no psychiatric hospitalizations.  The NARSUM corroborated the early age of onset, listed diagnoses of bipolar disorder, PTSD, and borderline personality traits, documented the absence of any active acute symptoms, and noted current treatment with an anti-depressant (Prozac, no other psychoactive medications).  The commander’s performance statement did not note any MH symptoms, diagnoses, or limitations.

A MEB psychiatric consultant submitted a memorandum to the PEB that reflected findings and opinions from an evaluation on 20 May 2005 (4 months before separation).   The psychiatrist stated that the CI had “a long-standing disorder of mood…[that]...did not appear to be disclosed by the service member at the time of her enlistment...[and that]...her condition, bipolar disorder, began at approximately age 13 per the service member’s report.”  The consultant opined that she “is not considered seriously mentally ill” and could be returned to full duty or administratively processed for fraudulent enlistment.  The listed diagnoses were “bipolar disorder, Type II, (existing prior to entry)” and “borderline personality traits.”  The issue of permanent service aggravation was not directly addressed.  

The PEB’s DA Form 199 decision did not elaborate its opinion that the bipolar disorder was not service aggravated; although, the panel noted that it is an intrinsically organic psychiatric condition; i.e., it may be affected by, but not directly caused by, stressors or other external factors (such as toxins or medications [as contended]).  The post-separation VA Rating Decision (VARD) denied service connection, noting that it could not be determined that there was “a psychiatric disorder that was incurred or aggravated in service” since the CI had failed to report for VA psychiatric examination.

There were post-separation VA treatment records for bipolar disorder and other psychiatric conditions and complaints, but none in evidence that were temporally probative to separation.  There was, however, a temporally remote VA psychiatric examination on 24 February 2010 that was probative to the panel’s recommendation in that it specifically addressed the question of whether the CI had a psychiatric disorder “which began during her service or was permanently aggravated by service.”  This was a very comprehensive and detailed assessment that, again, corroborated an early age of onset, but questioned whether the true diagnosis was bipolar disorder.  That psychiatrist instead diagnosed “mood disorder, NOS,” opining that the “primary diagnosis is likely that of a personality disorder [not service-ratable], which is the main source of problematic symptoms.”  The psychiatrist opined, “Her military service was entirely incidental to her mood disorder, NOS ... [and] ... not caused or aggravated by military service.”  The examiner listed “multiple significant stressors after her military service [which] could well have led to stress induced mood fluctuations,” but, detailed a high level of functioning (part-time employment, educational pursuits, and parenting) in spite of the stressors.  A subsequent VARD on 9 September 2010 cited this opinion and ruled that the previous denial of service connection was confirmed and continued.

The panel directed attention to its recommendation based on the above evidence.  The panel’s main charge was an assessment of the fairness of the PEB’s determination that the bipolar disorder was EPTS without permanent service aggravation.  The evidence compellingly established that the bipolar disorder (or equivalent diagnosis) was EPTS and the panel’s focus was judging whether there was permanent service aggravation.  The panel’s assessment of the latter is derived from the DoDI 1332.38 (E3.P4.5.2.3) presumption of aggravation standard; a presumption that may only be overcome by a preponderance (defined as “greater than 50% probability”) of competent medical evidence and accepted medical principles that the natural progression of a pre-existing condition was unaltered by any consequence of military service.  

Although there was limited evidence of such, the panel conceded that there had to have been significant stressors associated with service (certainly the case for the reported sexual assault).  These military stressors would logically have precipitated the same mood fluctuations as the post-separation stressors, but the above VA evidence indicated that any effect on disease severity was temporary.  There was thus no basis for concluding that the preceding military stressors would have had any permanent effect on disease severity or natural progression.  After due deliberation, considering all evidence and the applicable standards of DoDI 1332.38, the panel agreed that there was insufficient cause to recommend a change in the PEB adjudication for bipolar disorder.  
BOARD FINDINGS:  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.   In the matter of the contended bipolar disorder, the panel recommends no change in the PEB determination that it existed prior to service and was not permanently aggravated by service.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.    

The following documentary evidence was considered:

	PD-2017-03765

AR20190011732, XXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXX

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

	PD-2017-03765