RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02486
BRANCH OF SERVICE:  Army	BOARD DATE:  20140812
SEPARATION DATE:  20081006

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard Private First Class/E-3 (68W10/Combat Medic) on a temporary tour of active duty, who was medically separated for back pain with mild degenerative changes.  The 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 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “thoracolumbar pain due to degenerative disc disease, non-radicular” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded depression and bipolar disorder as medically acceptable.  The PEB adjudicated the back condition as unfitting rated 10%.  The remaining conditions were determined to be not unfitting and were not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The back issue sustained while in the LOD at Ft. Knox KY and again LOD at Ft. Sam Houston continues to plague me and was denied any consideration for mental issues sustained while in.”

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.  In addition, the Board will review the CI’s contended mental health (MH) conditions, which the PEB found to be not unfitting.  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 him 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, operating under a different set of laws.  Additionally, post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.  The Board also acknowledges the CI’s contention for rating of his MH conditions, which were determined to be not unfitting by the PEB, and emphasizes that the disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was incompatible with the CI’s specific duty requirements, a disability rating IAW the VA Schedule of Rating Disabilities (VASRD), based on the degree of disability evidenced at separation, will be recommended.

RATING COMPARISON:

Service IPEB – Dated 20080917	VA - (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Thoracolumbar Pain	5299-5237	10%	Musculoligamentous Low Back with Degenerative Disc Disease	5243	10%	20081209	
Depression	Not Unfitting	Dysthymic Disorder	9433	NSC	20081209	
Bipolar Disorder	Not Unfitting					
Other x 0 (Not in Scope)	Other x 1	20081209	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20090504 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Back Condition.  The narrative summary (NARSUM) dated 29 August 2008 noted the back pain was insidious in onset without history of trauma; however, the CI indicated symptom onset occurred in March 2007 during basic training.  A physical therapy (PT) entry dated 23 July 2007, recorded the CI reported a pre-service history of lower back pain.  The CI was treated conservatively with medications and PT, and noted improvement with bed rest and limited physical activity.  In June 2008, the CI reported he experienced occasional numbness in his legs and that his lower back pain was aggravated from carrying a 150-pound bag up three flights of stairs.  On 23 July 2008, X-rays of the lumbar spine revealed mild endplate degenerative changes from L3 through S1 without evidence of displacement or fracture.  The impression was mild degenerative changes.  Having failed conservative treatment, the CI was placed on a permanent profile. At the MEB NARSUM examination, the CI reported his back pain was aggravated with sitting, standing, running and performing other physical activities.  He denied changes in bowel and bladder habits.  Physical examination recorded a non-antalgic gait.  There was tenderness to palpation over the L1-S1 spinous processes of the thoracolumbar spine, no muscle spasm, and no evidence of neuromuscular deficits.  Range-of-motion (ROM) demonstrated flexion of 90 degrees, and extension of 30 degrees.

At the VA Compensation and Pension exam on 9 December 2008, approximately 2 months after separation, the examiner noted there were normal radiographs of the thoracic spine.  The CI noted he had applied for and been accepted at a job, but was awaiting medical clearance because of his back condition.  The CI reported constant lower thoracic and lumbar pain of sharp and stabbing quality, occasionally radiating up the back between the shoulder blades.  He reported occasional numbness in bilateral anterior thighs, back stiffness and no weakness in his legs.  The CI reported a good response to medication, heat, massage and back stretching exercises 10 minutes a day.  Physical examination revealed mild tenderness in the mid-thoracic to low back region, normal posture and gait, flexion of 90 degrees with mild pain between 75 and 90 degrees and extension of 30, with mild pain between 25 and 35 degrees.  The CI could toe walk, heel walk and perform half squats bilaterally.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition 10% for painful motion (despite preserved ROM) coded analogously 5299- 5237 (lumbosacral strain).  The VA rated it 10% coded 5243 (citing painful motion).  A higher rating of 20% which requires spasms producing abnormal gait, or abnormal curvature of the spine, or forward flexion not greater than 60 degrees, was not supported by the evidence in record.  The Board agreed there was pain on motion supporting the 10%; however, there is insufficient evidence to support the higher rating of 20% under any range of motion code.  The Board considered rating under code 5243, however, there was no evidence or ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication.  There was no evidence of incapacitating episodes for a higher rating under 5243.  There were no other codes to consider for rating of this condition.  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 back pain condition.

Contended Mental Health Conditions.  The contended conditions adjudicated as not unfitting by the PEB were depression and bipolar disorder.  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.  The Board notes that the PEB psychiatric statement dated 29 August 2008, 4 months prior to separation, specifically stated that the CI’s condition was medically acceptable.  The conditions were never profiled or implicated in the commander’s statement.  Although the CI received psychotropic medications, there was no evidence of emergency room visits for MH concerns, no report of suicidal or homicidal ideation, and no psychiatric hospitalizations.  There was no indication from the record that any MH condition 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 depression and bipolar disorder 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 thoracolumbar pain associated with mild degenerative changes condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended depression and bipolar 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.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131120, 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, AR20150002939 (PD201302486)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA