RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200062 SEPARATION DATE: 20090621 BOARD DATE: 20130314 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SGT/E-5 (13F/Fire Support Specialist), medically separated for intervertebral disc syndrome. The CI developed back pain after a humvee accident while deployed in Iraq in June 2005. Despite physical therapy (PT), pain medications, epidural steroid injections (ESI), chiropractic care, transcutaneous electrical nerve stimulation (TENS) unit, and a facet injection, the CI failed to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded chronic low back pain (LBP) secondary to degenerative disc disease (DDD) and herniated disc at L5-S1 condition on DA Form 3947 as medically unacceptable IAW AR 40-501. The MEB also identified and forwarded headaches, bipolar disorder, chronic posttraumatic stress disorder (PTSD), tinnitus, right shoulder pain, alcohol dependence in remission, hypertension (HTN), and hyperlipidemia as medically acceptable to the Physical Evaluation Board (PEB). The PEB adjudicated the intervertebral disc syndrome L4-5 with facet arthrosis but no significant canal or neural foraminal stenosis condition as unfitting rated 10% with likely application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “The board listed my bipolar, PTSD and Sleep problems as medically acceptable as well as tinnitus and cluster headaches.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The conditions bipolar disorder, chronic PTSD, tinnitus, and headaches as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview and are addressed below, in addition to a review of the ratings for the unfitting intervertebral disc syndrome condition. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service IPEB – Dated 20090323 VA 4 Mos Post-Separation) – All Effective Date 20090622 Condition Code Rating Condition Code Rating Exam Intervertebral Disc Syndrome 5243 10% Lumbar Disk Disease at L4-L5 and L5-S1 5243 10% 20091015 Headaches Not Unfitting Cluster Headache 8100 10% 20091002 Bipolar Disorder Not Unfitting PTSD with History of Bipolar Disorder, Anxiety Disorder, Depression, and Insomnia 9411 30%* 20091015 Chronic PTSD Not Unfitting Tinnitus Not Unfitting Tinnitus 6260 10% 20091015 Right Shoulder Pain Not Unfitting NO VA ENTRY Hypertension Not Unfitting Essential Hypertension 7101 0% 20091015 Hyperlipidemia Not Unfitting NSC Alcohol Dependence Not a Disability NO VA ENTRY .No Additional MEB/PEB Entries. 0% X 2 / Not Service-Connected x 2 Others 20091015 Combined: 10% Combined: 50% *PTSD increased to 70% effective 20110118 (Combined 80%) ANALYSIS SUMMARY: The Board notes the current VA ratings listed by the CI for all of his service-connected conditions, but must emphasize that its recommendations are premised on severity at the time of separation. The VA ratings which it considers in that regard are those rendered most proximate to separation. The Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs. Intervertebral Disc Syndrome Condition. There were range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. Thoracolumbar ROM PT ~4 Mo. Pre-Sep MEB ~4.5 Mo. Pre-Sep VA C&P ~3.90 Mo. Post-Sep Flexion (90° Normal) 70°* 80° 80° Ext (0-30) 15° 30° R Lat Flex (0-30) 25° 30° L Lat Flex 0-30) 20° 30° R Rotation (0-30) 30° 25° L Rotation (0-30) 30° 20° Combined (240°) 200° 215° Comment *Limited by pain in back progressing to left buttock; hypomobility with lumbar Spring testing; straight leg raise(SLR) + at 45° on left; Tender to palpation (TTP) laterally on left-reproduces radiating buttock pain; sensation intact to light touch bilateral lower extremities Decreased ROM due to pain; no change in ROM with repetition; gait and stance normal; mild TTP lumbar paraspinal muscles; no spasm or guarding; positive SLR on left, negative on right; negative Waddell’s; motor 5/5 bilateral lower extremities; sensation intact; reflexes normal Painful motion with flexion, extension, and lateral flexion but not with rotation; no additional limitation with repetition; barely perceptible antalgic gait; moves stiffly; §4.71a Rating 10% 10% 10% The CI initially injured his low back while moving a refrigerator in October 1995 however after medication and exercise the pain resolved. In October 2005, the CI injured his back in a humvee accident in Iraq and continued to have chronic back pain afterwards. A lumbar spine X- ray approximately a year after the accident was negative; however, a lumbosacral spine magnetic resonance imaging (MRI) exam performed at the same time revealed an L5-S1 central disc herniation and L4-5 mild facet hypertrophy. The CI continued to have low back pain (LBP) and a repeat MRI approximately 2 years later demonstrated a new L4-5 left foraminal disc herniation and an unchanged biforaminal disc herniations at L5-S1. It also showed bilateral degenerative facet changes at L3-5 and mild loss of disc height at L5-S1. An orthopedics evaluation at that time showed a normal motor exam and reflexes. A standing anterior posterior lateral lumbar spine X-ray was negative. The CI continued with PT and chiropractic care. A third MRI approximately 4 months later documented a new small disc bulge at L3-4 without central canal or foraminal stenosis. The L4-5 disc bulge was now accompanied by a mild to moderate left inferior neuroforaminal narrowing and the L5-S1 disc bulge was central with mild bilateral lateral recess narrowing but no neuroforaminal or central canal stenosis. This study also showed continuing mild disc disease and facet arthrosis. An ESI brought relief for a week. The CI was placed on a permanent L3 Profile for chronic LBP due to DDD and herniated disc L5-S1. The commander’s letter noted that the CI was unable to perform his duties due to his LBP and had problems standing for periods of time. The MEB narrative summary (NARSUM) examination approximately 4 months prior to separation indicated increased pain with most physical activity, prolonged sitting or standing without shifting position, and an inability to wear interceptor body armor (IBA), battle gear, lifting or carrying weight greater than ten pounds. The MEB NARSUM physical exam findings are summarized in the chart above. The VA Compensation and Pension (C&P) examination approximately 4 months after separation, documented chronic constant LBP that varied in severity with increased levels of activity. The examiner further documented flare-ups a “couple of times per week” which required relief by TENS unit, ice pack, medications and rest and three episodes of weeklong prescribed bed rest periods. The C&P physical exam findings are summarized in the chart above. The Board directs attention to its rating recommendation based on the above evidence. The PEB and the VA chose the same disability code 5243 intervertebral disc syndrome and both rated at 10%. The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “With or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.” All exams proximate to separation met the 10% rating criteria for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. 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 intervertebral disc syndrome condition. Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB were headaches, bipolar disorder, chronic PTSD, and tinnitus. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. 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. None of these conditions were profiled, the only condition profiled was the intervertebral disc syndrome; none were implicated in the commander’s statement; and, none were judged to fail retention standards. Treatment records document relief of headaches with medication. The CI was in treatment for bipolar disorder and PTSD but there is no evidence of any negative occupational or social effects. While no military psychiatric narrative summary was prepared for the PEB, the C&P examination completed approximately 4 months after separation noted a Global Assessment of Functioning (GAF) of 78. None of these conditions led to functional limitations that would prevent the CI from performing the tasks required of his MOS. All were reviewed by the action officer and considered by the Board. There was no indication from the record that any of these conditions significantly interfered with satisfactory duty performance. After due deliberation 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 headaches, bipolar disorder, chronic PTSD and tinnitus conditions; and, therefore, no additional disability ratings can be recommended. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the intervertebral disc syndrome condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended headaches, bipolar disorder, chronic PTSD and tinnitus 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. RECOMMENDATION: The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Intervertebral Disc Syndrome 5243 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120118, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202- 3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxxx, AR20130007443 (PD201200062) 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: Encl xxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)