RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01610
BRANCH OF SERVICE:  Army	BOARD DATE:  20140516
SEPARATION DATE:  20040128

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (91W30/Health Care Specialist) medically separated for chronic low back pain (LBP).  Despite conservative medical management, the low back condition worsened over the course of her career and eventually could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  In addition, during her medical evaluation process, the CI presented with mental health (MH) symptoms, diagnosed as major depressive disorder (MDD).  She was psychiatrically hospitalized and upon inpatient discharge, was admitted to a partial psychiatric hospitalization program.  She was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded: “chronic low back pain,” “MDD,” and “right knee pain” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded five other conditions as meeting retention standards.  The PEB adjudicated “chronic LBP…neurologically intact without radicular signs” as unfitting, rated 10%.  The MDD and right knee pain were determined to be not unfitting, along with the five other conditions referred as meeting retention standards.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have back spasms that are severe, along with suffering from depression. I have been seen continuously at Evans Army Medical Center for treatment along with pool physical therapy to avoid additional pressure on my back from land physical therapy. See enclosed rating documentation from VA. I also met the requirement for retirement. I had sixteen (16) years and ten (10) months when they boarded me.  I have contacted Evans Army Medical Facility to have my records forwarded to the Physical Disability Board of Review. Enclosed is a copy of the VA Form 3288 to allow for my records to be released to PDBR for the purpose of reviewing my rating.”

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 low back condition is addressed below.  In addition, the Board will consider the CI’s contention for her MDD.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  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.

The Board acknowledges the impairment with which the CI’s service-connected conditions continue to burden her, but notes 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 (DVA), operating under a different set of laws. The Board considers DVA evidence proximate to separation in arriving at its recommendations, and, DoDI 6040.44 prescribes a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is only probative to the Board’s recommendations to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20031209	VA - (~ at Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…Neurologically Intact, Without Radicular Signs	5299-5237	10%	Spondylolysis with Spondylolisthesis, L4-L5	5243-5237	20%	20040122	
Major Depressive Disorder	Not Unfitting	Major Depressive Disorder with PTSD	9434	70%	20040301	
No Additional MEB/PEB Entries in Scope	Other x 10	20040122	
Combined:  10%	Combined:  100%	
Derived from VA Rating Decision (VARD) dated 20040831 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Condition.  The CI was diagnosed with lumbar spondylolysis (degeneration of the spine) and spondylolisthesis (forward displacement of a vertebra…most common in the lumbar region of the spine) by X-ray in 1987, without history of direct localized trauma.  This persisted throughout her military career.  The service treatment record (STR) was limited in documents and noted a single complaint of lower extremity numbness and tingling at the MEB examination without prior complaints.  Multiple treatment modalities, including physical therapy (PT), injections, medications, and casting were pursued and the first temporary profile was issued in August 1987.  Absent neurologic abnormalities, surgery was not indicated.  Few remote STR entries documented normal strength, sensation and reflexes to the back and lower extremities as well as painful motion.  Her gait was normal.  There were no periods of incapacitation.  Additional radiology tests performed in June 2003 indicated degenerative disc disease of the lumbar spine.  The MEB narrative summary (NARSUM) examination (4 months prior to separation), noted continued severe LBP worsened with prolonged periods of standing, sitting, walking, lifting and bending.  Additionally, the CI endorsed “intermittent numbness and tingling radiating into her lower extremities, with the right being more affected than the left.  Overall, her lower back pain is her main concern.”  A detailed spinal physical examination noted lumbar tenderness, but was otherwise normal.  Her range-of-motion (ROM) was noted with normal flexion.  At the VA Compensation and Pension (C&P) examination (a month prior to separation), the CI reported daily LBP with radicular symptoms going down into her right lower extremity.  She denied flare-ups and took Motrin for pain relief.  “Her usual occupation and daily activities are limited in that she is unable to do heavy lifting or repetitive bending.”  The physical examination revealed an abnormal gait, bearing weight on the left side with a limp.  Low back ROM was significantly decreased.  Spinal tenderness was not present.  The lower extremities were neurologically normal without edema.  There was no comment on the presence or absence of back spasms or guarding.  The examiner noted that her “right hip ROM was not possible to obtain because of left knee pain.”  The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB (from PT exam) 
~ 4 Months Pre-Sep
(20030828) 	VA C&P ~ 1 Month Pre-Sep
(20040122) 	
Flexion (90 Normal)	110	60	
Extension (30)	20	20	
R Lat Flexion (30)	25	20	
L Lat Flexion (30)	30	20	
R Rotation (30)	not measured	20	
L Rotation (30)	not measured	20	
Combined (240)	n/a	160	
Comment	normal gait; + DDD	abnormal gait	
§4.71a Rating	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  Although the service and VA titled the unfitting back condition differently, they both utilized the same primary code 5237 (lumbosacral strain) and rated 10% and 20%, respectively.  The VA rating of 20% was specific to the limited thoracolumbar flexion to 60 degrees as compliant with VASRD criteria.  The VA examination demonstrated significantly worse symptoms and ROMs than the service examination.  There is a disparity between the above listed examinations, with implications regarding the Board's rating recommendation.  The Board deliberated the probative value assignment to these differing evaluations, and reviewed the file for corroborating evidence from the period preceding the VA examination and separation.  There was no record of injury or other development to explain the more marked impairment reflected by the VA ROM measurements.  While ROM limitations may have progressed over the 3-month time period, there is no evidence in the record from which to conclude that the severity near service separation approached that portrayed by the VA measurements.  Board members agreed that the MEB examination revealed non-compensable limitation of motion, but evidence of degenerative arthritis was present to justify the PEB’s 10% rating IAW §4.71.  VASRD §4.59 (painful motion), although such findings were very distant (in 1988).  The Board also considered the application of §4.45, which allows for a higher rating if evidence of additional functional loss is present.  The Board concluded however that there was no evidence on which to base a conclusion that repetitive motion resulted in additional disability.  Therefore, Board members agreed that a rating higher than the PEB’s 10% was not justified.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the LBP condition was appropriately adjudicated in this case.

Major Depressive Disorder.  The CI’s application asserts that she continues to “suffer from depression.”  Other than the psychiatric NARSUM, the single MH STR documentation was the VA’s C&P examination dated 1 March 2004 (a week post-separation).  Her initial presentation to Behavioral Health was a command directed evaluation in October 2003 secondary to her behavior and performance at work.  A month later in November 2003, she was psychiatrically hospitalized for a week citing continuous anger with increased homicide ideation.  Her diagnosis upon hospital discharge was MDD.  At the MEB psychiatric NARSUM examination performed by a psychiatrist on 17 November 2003 (a week after hospital discharge and 3 months prior to service separation), the CI endorsed a depressed mood, loss of pleasure, insomnia, low energy, low self-esteem and reduced appetite.  There were no suicide or frank homicide ideations, but she “endorsed growing hostility towards others she perceived as harassing her.”  Examination revealed a “depressed” mood and a “tearful” and “sad” affect.  There was psychomotor retardation (PMR) (visible slowing of physical activity such as movement due to non-organic cause) evidenced by “slowed walking” and psychomotor agitation (unintentional or purposeless motions that stem from mental tension and or anxiety) seen by “hand-wringing.”  Her speech, thought content, thought processes and memory were normal or intact.  There were no suicidal, homicidal or personal injury ideations.  Her diagnosis remained unchanged and her Global Assessment of Functioning (GAF) was 65, indicating between moderate and mild impairment.  The examiner noted her psychiatric condition as “not stable” describing both her functional and clinical status and provided a “favorable” prognosis with treatment.  At the VA C&P examination, performed a week after separation, the CI reported stressors as poor command treatment, occupational harassment, dissolution of her marriage and the inability to bear children.  Additionally, she “reported being sexually assaulted in 1994 or 1995” at a military installation as well as a “sexual molestation” as a child.  She reported both depression and posttraumatic stress disorder (PTSD) symptomology.  Specific to depression was a depressed mood, loss of interest/ energy/weight.  Additionally, there was insomnia, feelings of worthlessness, and a diminished ability to concentrate.  There was no suicidal ideation.  Her subjective summary of symptoms in regards to PTSD are excerpted below.

“She has recurrent and intrusive distressing recollections of these events and recurrent distressing dreams.  She is triggered by when she sees kids that were about her age with their parents.  She also is triggered by things that remind her of the sexual assault.  At times she wakes up sweating and nervous in response to the sexual assault in 1994 or 1995.  She has intense psychological distress and physiological reactivity when she is exposed to things that remind her of these events.  She makes efforts to avoid thoughts, feelings, conversations, activities, places, and people that arouse recollections.  She finds herself detaching from others.  She finds it hard to trust men.   She has difficulty with sleep and concentration, and hyper-vigilant particularly when she is home alone.”

Her mental status examination revealed an intermittent depressed, sad, or flat affect.  There was PMR evidence with slow movements.  “Her memory seems to be impaired.”  Her insight was “fair to poor.”  The C&P examination revealed the diagnosis as MDD, recurrent and severe with an additional diagnosis of PTSD of moderate severity.  Her GAF was 35, connoting “Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment OR inability to function in almost all areas,” or “Some impairment in reality testing or communication OR major impairment in several areas such as work or school, family relations, judgment, thinking or mood.”  The examiner simply referenced her functional ability as “unable to work because of her depression and pain” and that her PTSD, although with childhood onset, was extremely aggravated by the sexual assault in military service.  The commander’s statement dated 24 July 2003 was prior to her command directed MH evaluation and indicated that she was not able to perform her military duties due to profiled “physical limitations.”  The permanent profile in November 2003 listed MDD as well as two non-MH diagnoses and listed S3 under the P-U-L-H-E-S classification system.

The Board directed its attention to its rating recommendations based on the above evidence.  Both the MEB and VA listed MDD as a diagnosis.  Only the VA added PTSD as well.  Although the VA examiner never specifically stated that the CI met the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) stressor and symptom criteria for PTSD as related to her traumatic sexual assaults, the summary presentation does address each criterion level for a PTSD diagnosis.  The VARD on 31 August 2004, based upon the examination performed a week after separation, rated the CI’s condition at 70% for MDD with PTSD, citing numerous ongoing PTSD criteria supported symptoms as indicated above.  The Board’s main charge with respect to this MDD condition is an assessment of the fairness of the PEB’s determination that it 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.  An established principle for fitness determinations is that they are performance-based; the Board is confronted in this case with minimal evidence that the limitations imposed by the MH condition prohibited the performance of the CI’s military duties.  The permanent S3 profile overwhelmingly included restrictions based upon the CI’s low back condition; however, it also included an assignment limitation of “Assigned to a Medical Treatment Facility (MTF) that has inpatient and outpatient psychiatric services.”  Although this particular restriction may not impose limitations on her duty as a practical nurse, but could pose duty limitations as a soldier in relation to worldwide deployments, therefore, possibly rendering her unfit from an MH condition.  Board members considered the close proximity of her separation date and her inpatient psychiatric hospitalization with subsequent partial psychiatric hospitalization program as further evidence of her MH condition possibly rendering her unfit for continued service.  Additionally, the S3 profile alone would have dictated an MEB with resultant similar considerations and findings.  After due deliberation, the Board agreed that in regards to the functional impairment of the contended MDD condition, evidence existed in favor of its recommendation as an additionally unfitting condition for disability rating.  The proper coding is 9434 (MDD) and meets the VASRD §4.130 criteria for a 10% rating, based upon mild symptoms relating to occupational and social impairment prior to separation.

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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended MDD condition, the Board unanimously recommends a disability rating of 10%, coded 9434 IAW VASRD §4.130.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Low Back Pain	5299-5237	10%	
Major Depression Disorder	9434	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130927, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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 XXXXXXXXXXXXXXXXX, AR20150006644 (PD201301610)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA