RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1200500
BRANCH OF SERVICE:  Army	BOARD DATE:  20130522
SEPARATION DATE:  20011225

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (91W20/Health Care Specialist) medically separated for mid-thoracic back pain.  He had a long history of mid and lower back pain as well as well as pre-service poly substance abuse which continued while on active duty.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic back pain,” was forwarded to the Informal Physical Evaluation Board (IPEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (drug and alcohol dependence and anoxic brain injury) as medically unacceptable.  The IPEB adjudicated “mid-thoracic back pain with limitation of motion post thoracic spine discectomy with fusion at T6/T7 and T7/T8 with BAK cage,” rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI initially rebutted the IPEB and requested a Formal PEB (FPEB).  The IPEB affirmed their decision; shortly afterward, the CI withdrew his request for an FPEB.  Then the IPEB returned the case to the MEB requiring a psychiatric evaluation.  This was done the next day and the CI concurred with the evaluation.  After reviewing that evaluation, the FPEB upheld their earlier decision; the CI was then medically separated.

CI CONTENTION:  The application submitted by the CI’s brother states simply, “The rating should be reviewed for eligibility for change under the Wounded Warrior Act.”  The CI’s brother does not elaborate further or specify a request for Board consideration of any additional conditions.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting chronic mid back pain condition is addressed below.  The conditions determined to be not unfitting by the PEB, the drug and alcohol dependence and anoxic brain injury conditions, were sufficiently implied in the application to meet the DoDI 6040.44 scope requirements and are also addressed below.  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 Board for Correction of Military Records.

RATING COMPARISON:

Service FPEB – Dated 20011029	VA - (2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mid-thoracic back pain w/ limitation of motion S/P  thoracic spine discectomy w/ fusion at T6/T7 & T7/T8 w/ BAK cage	5291	10%	Postoperative Disc Herniation Thoracolumbar Spine	5293	40%	20020302	
			Surgical Scar Lumbar Area	7804	10%	20020302	
			Surgically Absent Right Seventh Rib	5297	10%	20020302	
Drug and Alcohol Dependence	Not Unfitting	No Corresponding VA Entry		
Anoxic Brain Injury w/ mild residual cognitive deficits 	Not Unfitting	Major Depression w/ Anoxic Organic Brain Syndrome	9434-9327	100%	20020314/ 20020302	
No Additional MEB/PEB Entries	Facial Scar	7800	10%	20020302	
	1 x 0% / 1 denied	20020302	
Combined:  10%	Combined:  100%	
Derived from VA Rating Decision (VARD) dated 20020501 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB.  However, the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.

Mid-thoracic Back Pain.  His back pain began in 1997 after he fell down some stairs at work.  He was treated medically for lumbar herniated disks; his treatment was complicated by narcotics abuse and subsequent detoxification.  In 1999, he underwent thoracic spine discectomy and BAK cage fusion at T6-T7 and T7-T8 for a history of back pain, left greater than right lower extremity pain and urinary frequency.  His post-operative course was complicated by difficulty controlling his pain, which required increasing demands for narcotics and leading to an anesthesia pain specialty consultation.  He continued to be treated for narcotics abuse both as outpatient and during two admissions in 1999 and 2000.  The narrative summary (NARSUM) was dated 15 December 2000, a year prior to separation.  The CI reported that he continued to have “significant pain” in his mid-thoracic spine.  His level of pain did not appear to have changed much from prior to surgery.  The pain was 7-9 out of 10 and described as constant.  He reported difficulty with prolonged standing, walking, or riding in a car.  He had difficulty climbing stairs, bending, and lifting and the pain affected his sleep.  However, he also noted that he had been able to wean off his back brace and had begun to do pushups in an effort to pass an alternate physical fitness test in order to remain on active duty.  On examination, his spine had normal contour without scoliosis.  There was “moderate decreased range of motion in all directions.”  The surgical incision was well healed.  There was tenderness to palpation present in the paraspinal muscles.  The straight leg exam and Patrick’s test (to evaluate the hips and sacro-iliac joints) were negative.  The sensory and motor examinations were normal.  Deep tendon reflexes were normal.  No spasm was documented.  The CI provided a letter to the MEB in which he noted that he was involved in a motor vehicle accident (MVA) in April 2000, in which he re-injured his back.  Range-of-motion (ROM) measurements done by physical therapy staff on 1 June 2001, almost 6 months prior to separation, were for individual spinal segments.  At the VA Compensation and Pension (C&P) exam performed on 2 March 2002, 2 months after separation, the CI reported that his back pain started prior to his surgery in 1999 and was aggravated by the MVA 6 months later.  The CI reported that his pain was in his back and neck and would radiate to his forearm, but denied bowel or bladder dysfunction.  The VA examiner noted that the CI was able to dress and undress himself without difficulty and to get on the examination table without difficulty.  There was no cervical spine tenderness or spasm.  There was no weakness or muscle atrophy in the upper or lower extremities.  The ROM of the thoracolumbar spine was limited in all planes; the CI stated that he could not bend forward because of pain.  An X-ray of the spine revealed that the vertebral bodies were in “satisfactory alignment” and there was "no evidence of fracture, destructive process, or degenerative disease.”  A neurological C&P examination was performed on 14 March 2002, 2 weeks later and almost 3 months after separation.  The CI stated that he continued to have intermittent mid back pain with radiation down the left lower extremity (LLE) associated with numbness, but not with weakness.  On examination he was noted to be in no acute distress.  Sensation, strength, and reflexes were normal.  There was a mild to moderate tremor of both hands which worsened with intention.  There was no atrophy.  His gait was normal although the tandem gait was mildly diminished, which can be found with cerebellar dysfunction.  Other testing of cerebellar function was also mildly diminished.  However, he was found to have a normal neurological examination and that his problems were primarily psychogenic.

The Board directed attention to its rating recommendation based on the above evidence.  It noted that while the CI had restricted ROM on direct measurement at both the physical therapy and C&P examinations, there was no evidence of atrophy, spasm, or weakness noted on either examination.  The CI was noted to be able to undress and dress himself as well as get on and off the examination table, all without difficulty.  The X-ray findings were consistent with a good surgical outcome.  The CI noted radiation of pain down his forearm at the initial C&P examination, but noted that it radiated down his LLE at the neurological examination 2 weeks later.  The action officer opined that the restriction in motion measured is not supported by the remainder of the examination and it is not consistent with the ability to dress and undress as well as get on and off the examination table without difficulty.  The Board also noted that the neurologist determined that the symptoms were psychogenic in origin.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  The Board notes that the 2002 VASRD standards for the spine, which were in effect at the time of separation, differ from the current §4.71a rating standards.  The PEB gave a 10% disability rating for the back condition, coded 5291 for limitation of motion.  The VA awarded 40%, coded 5293, stating there were severe attacks from intervertebral disc syndrome with intermittent relief and noted the severe limitation of motion measured.  The Board considered the rating under VASRD diagnostic code 5291.  The Board agreed that the ROM documented at the time of the MEB physical therapy examination supported the 10% under the VASRD diagnostic code 5291 in effect at the time.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a disability rating of 10% for the mid-thoracic back pain condition.  The Board next considered whether a higher rating was warranted under the guidelines for intervertebral disc syndrome, code 5293.  The CI had intervertebral disc disease with radicular symptoms prior to his surgery in 1999.  The CI continued to have back pain following surgery, but without objective neurologic findings, spasm or atrophy.  Observed objective function (such as dressing without difficulty) was inconsistent with the level of symptoms expressed.  And as noted, the VA neurologist opined the symptoms were psychogenic.  Board members agreed the overall clinical picture did not support a compensable rating using this code higher than the 10% adjudicated by the PEB.  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 mid-thoracic back pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that drug and alcohol dependence and anoxic brain injury were 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.

Drug and Alcohol Dependence.  The Board noted that IAW DoDI 1332.38 E5.1.3.9.1, uncomplicated drug and alcohol abuse are to be administratively adjudicated, consistent with the IPEB adjudication that this was not unfitting or ratable.  The MEB NARSUM noted that the CI had a history of drug and alcohol abuse predating his enlistment by 3 years.  The drug and alcohol dependence was not profiled.  It was implicated in the commander’s statement, which reported that the CI was in the process of a Chapter 9 (Rehabilitation failure) due to continued substance abuse.  The MEB determined that the drug and alcohol dependence was medically unacceptable; however, it was in remission at the time that the PEB convened.  Subsequent to the MEB, a psychiatric addendum noted that the substance abuse was in full remission and that a MEB was no longer warranted.  The C&P examiner also noted that the CI was in early remission.  All of the information was reviewed by the action officer and considered by the Board.  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 drug dependence and alcohol condition and therefore no additional disability ratings are recommended.

Anoxic Brain Injury with Mild Residual Cognitive Deficits, Improving.  The anoxic brain injury in 1998 was thought to be secondary to a possible five minute anoxic episode secondary to over-sedation during drug detoxification.  It was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  While the MEB determined this to be unfitting, the later psychiatric addendum, 6 months prior to separation, noted that the CI denied that there were cognitive problems affecting his life sufficient to interfere with his activities of daily living.  His final non-commissioned officer evaluation reports noted that he was fully capable for promotion.  The C&P examiner noted that his cognitive functioning was normal, but also noted that the CI could have future occupational impairment based on the last neuropsychological testing done in September 2000, 16 months prior to separation.  The evidence was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that anoxic brain injury condition significantly interfered with satisfactory duty performance at the time of separation.  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 anoxia brain injury condition and therefore no additional disability ratings are 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 mid-thoracic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended drug and alcohol dependence condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  In the matter of the contended anoxic brain injury condition, 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 recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Mid-thoracic Back Pain	5291	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120612, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130014746 (PD201200500)

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’s brother, 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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA