RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01696
BRANCH OF SERVICE:  Army	BOARD DATE:  20140513
SEPARATION DATE:  20040920

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (11B30/Infantryman) medically separated for chronic mid-back pain.  The back condition 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 L3/S1 profile and referred for a Medical Evaluation Board (MEB).  The back and a mental health (MH) condition, characterized as “chronic mid back pain” and “major depressive disorder (MDD),” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic mid-back pain” as unfitting, rated 10%.  The MH condition was determined to be not unfitting and therefore not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Found unfit for service due to severe limitations on a permanent physical profile.  In addition, I served 12 years active duty and planned on retiring from the military at the time of my discharge.  I was also denied any service connection for combat related PTSD.  Since my discharge, I have attended residential PTSD [posttraumatic stress disorder] twice and was hospitalized 46 days in a psych ward for a suicide attempt on Veterans Day 2012.  I have also received continuos [sic] mental health care since 2001.”

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 back condition is addressed below.  The PTSD is not within the DoDI 6040.44 defined purview of the Board.  However, the PEB did determine that the MDD was not unfitting and the MDD was adjudicated as PTSD by the VA.  The Board therefore concluded that the CI also contended for the not unfitting MDD 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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20040802 | VA - (1 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Mid-Back Pain | 5235 | 10% | Compression Fracture at T12 and Mild Disc Space Narrowing at T10-11, and at T11-12 | 5235 | 20% | 20041013
Major Depressive Disorder | Not Unfitting | No VA Entry
Rated:  10% | Rated:  20%
Derived from VA Rating Decision (VARD) dated 20041217 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Mid-Back Pain Condition.  The first record in evidence for the back condition is dated 10 December 2003 when the CI stated that he had injured his back in a parachuting accident 2001 (not in evidence).  He was managed conservatively but had persistent pain with activity.  He was issued a 7-day temporary P3 profile on 12 January 2004.  An X-ray on 26 January 2004 showed degenerative changes of the thoracic spine and was suspicious for an old compression fracture of T-12.  Despite aggressive rehabilitation, he was not able to meet full duty requirements and was entered into the MEB process.  An orthopedic examination on 21 April 2004 showed a normal neurological examination without evidence of a radiculopathy.  The range-of-motion (ROM) was limited and painful.  Tenderness to palpation was documented, but no spasm.  One maneuver which normally does not cause pain was positive.  At the MEB examination on 3 May 2004, the CI reported chronic back pain.  The MEB examiner noted tenderness to palpation and normal flexion, extension and bilateral side bending.  Rotation was not recorded.  The narrative summary was dated 3 May 2004.  The CI reported that he was unable to run, ruck-march, wear field gear, or accomplish all physical fitness tests.  Treatment had been unsuccessful.  He denied radiculopathy.  The ROM was obtained by physical therapy and is listed below.  At the VA Compensation and Pension examination performed 3 weeks after separation, the CI reported chronic pain.  His gait and station were normal.  He could squat and recover without difficulty.  The neurological examination was normal; both atrophy and spasm were absent.  The goniometric 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)

PT ~2.5 Mo. Pre-Sep

VA C&P ~ 1 Mo. Post-Sep

Flexion (90 Normal) | 45 | 40
Combined (240) | 135 | 160
Comment | Limited by pain | Painful motion
§4.71a Rating | 20% | 20%

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both coded the back condition as 5235 (vertebral fracture), but rated it at 10% and 20%, respectively.  While the MEB examiner recorded normal ROM values, both sets measured with a goniometer, showed limitations and were more proximate to separation.  Both are consistent with a 20% disability rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the back condition coded 5235.

Contended PTSD Condition.  The PEB adjudicated MDD as not unfitting and did not consider PTSD.  However, the Board observed that the CI submitted a claim to the VA for MDD and the diagnosis was changed to PTSD by the VA.  The Board concluded that the CI requested that a review his records for the presence of an unfitting MH condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that MDD 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.  The MDD was not profiled or implicated in the commander’s statement.  It was not judged to fail retention standards.  It was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that MDD, or any MH condition, regardless of diagnosis, significantly interfered with satisfactory duty performance.  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 fitness determination for the not unfitting MH condition and so no additional disability rating is 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 back condition, the Board unanimously recommends a disability rating of 20%, coded 5235 IAW VASRD §4.71a.  In the matter of the contended MDD condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Chronic Mid-Back Pain | 5235 | 20%
RATED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131019, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
President	
DoD 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 XXXXXXXXXXXXXXX, AR20150007115 (PD201301696)

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		     XXXXXXXXXXXXXXX
		     Deputy Assistant Secretary of the Army
		         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-01696