RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1302098
BRANCH OF SERVICE:  Army	BOARD DATE:  20140701
SEPARATION DATE:  20020521

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (75H/Personnel) medically separated for lumbar and lower extremity conditions.  These chronic 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 L3 profile and referred for a Medical Evaluation Board (MEB).  Chronic recurrent low back pain (LBP) with a herniated disc and radicular pain in the right leg and shin splints, characterized as medically unacceptable, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (including two mental health [MH] diagnoses as charted below), all judged to be medically acceptable.  The Informal PEB adjudicated chronic LBP with herniated nucleus pulposus L5/S1 and bilateral shin splint conditions as unfitting, rated 20% and 0% respectively; citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  The application bulleted out and elaborated the following conditions (referencing service association and current disability): “back,” “panic disorder with obsessive compulsive personality,” “migraine headaches,” “left ankle injury,” “bilateral shin splints,” “gastritis and duodenitis,” and “sleep apnea”; further stating, “History of bursitis on shoulders, mastoiditis and varicocele were not mentioned during medical separation.”  The CI included with the application a letter from his spouse regarding current issues with the sleep apnea conditions and its complications; and, this was reviewed and considered by the Board.

The Board also acknowledges the 2 September 2014 receipt of additional evidence which was reviewed by all members prior to finalization of its recommendations.

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 applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continue to burden him and his contention that service ratings should have been conferred for other conditions present at the time of separation.  The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the DES operates.  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.  However the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

RATING COMPARISON:

Service IPEB – Dated 20011213 | VA* - (4 to 6 Wks. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Low Back Pain… | 5293 | 20% | Herniated Disc at L5-S1 | 5293 | 40% | 20020425
Shin Splints | 5099-5003 | 0% | Bilateral Shin Splints | 5099-5014 | 0% | 20020425
Panic Disorder | Not Unfitting | Panic Disorder w/ Obsessive-Compulsive Personality Disorder | 9412 | 10% | 20020412
Personality Disorder | Not Unfitting | | | |
Chronic Headaches | Not Unfitting | Migraine Headaches | 8100 | 10% | 20020425
Other x 0 (Not in Scope) | Other x 8 | 20020425
Combined:  20% | Combined:  60%
*Derived from VA Rating Decision (VARD) dated 20020627 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Lumbar Spine Condition.  Although the earliest entry in the service treatment record (STR) is from 2000, notes indicate that the CI’s complaints of LBP began as early as 1988 and, he was initially diagnosed with lumbosacral strain.  Symptoms were exacerbated by a fall in January 2000, and were subsequently associated with right sciatic radiation.  Imaging in January 2001 demonstrated degenerative disc disease (L4/5 and L5/S1) with bulging and right sciatic nerve impingement (L5/S1).  A neurosurgical consultant the following month recorded an antalgic gait, severely limited range-of-motion (ROM) and normal neurological findings except for minor right sciatic sensory deficits.  Surgery was discussed and (reasonably) deferred.  Continued conservative management, which included nerve injections, resulted in significant improvement; but, the CI remained unable to fulfill basic soldiering requirements.  No subsequent STR entries documented gait disturbance or positive neurological findings.  A physical therapy (PT) note a year later in February 2002 documented grossly normal ROM (as did a treatment note a week earlier) with pain on flexion; the MEB DD Form 2808 physical 2 weeks later noted “↓ ROM,” and, another PT note 2 weeks after that documented flexion to approximately 50 degrees.  There was no STR documentation of physician ordered best rest or other indication of incapacitation (notwithstanding a 2-week period of light duty ordered in 2000); and, on the DD Form 2697 Report of Medical Assessment, the CI reported no work loss greater than 3 days.

The narrative summary (NARSUM) was prepared 11 months prior to separation, preceding the later STR evidence cited above.  It stated that the CI “is currently experiencing chronic lower back pain in the right hip radiating down the leg day and night, which is very uncomfortable … [causing] … trouble sitting and standing, and doing basic daily things.”  The physical exam noted a “little bit” of tenderness and normal strength and neurologic findings.  Flexion was described as fingers 12 inches from the floor (roughly 70 degrees).

The VA Compensation and Pension (C&P) examination was conducted significantly closer to separation (4 weeks prior), and specified only “chronic low back pain.”  The physical exam documented a normal gait without comment on spasm and tenderness and noted a grossly normal neurological exam.  The VA ROM measurements were 90 degrees flexion, 15 extension, and 35 bilateral flexion (all normal).  The VA examiner specifically commented, “I cannot ascribe any physical diagnosis nor attribute any physical impairment to his low back pain.”

The Board directs attention to its rating recommendation based on the above evidence.  The 2002 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The potential coding options for this case are excerpted below.
5292 Spine, limitation of motion of, lumbar
Severe ......................................................................................................................................	40
Moderate .................................................................................................................................	20
Slight ........................................................................................................................................	10
5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with: sciatic neuropathy with 
characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to site of diseased disc, little intermittent relief ............60
Severe; recurring attacks, with intermittent relief ..................................................................	40
Moderate; recurring attacks ....................................................................................................	20
Mild .........................................................................................................................................	10
Postoperative, cured ...............................................................................................................	  0
5295 Lumbosacral strain:
Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, 
marked limitation of forward bending in standing position, loss of lateral motion 
with osteo-arthritic changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion .....................................................	40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral,
in standing' position ................................................................................................................	20
With characteristic pain on motion .........................................................................................	10
Both the PEB and VA elected to rate under 5293, which may be justified by the disc pathology in evidence.  The criteria for a rating higher than 20% under 5292 and 5295 were considered by the Board.  All members agreed that the “severe” criteria under 5295 were not in evidence; and, likewise that “severe” ROM limitation could not be justified for a higher rating under 5292.  It was thus concluded that the Board’s rating recommendation should also default to 5293, and all members agreed that the 60% criteria under that code are not supported by the evidence.  It is admittedly somewhat difficult to define any discrete “attacks” from the evidence as specified for both the 20% and 40% ratings, with the possible exception of the flare precipitating the light duty order in 2000.  The VARD cited fairly remote service evidence and, although recognizing them, apparently discounted the VA C&P examiner’s opinion and ROM findings.  No clear rationale was given in support of the 40% determination; the criteria were simply quoted.  Members agreed that the evidence does not comport with the severe characterization under 5293.  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 lumbar spine condition.

Bilateral Shin Splints Condition.  The earliest STR entry for this condition dates to January 2000, documenting “continued pain in bilateral shins while running” (although the NARSUM dates the onset to 1992).  A bone scan following that visit was normal, as was a repeat study in 2002; although the latter demonstrated left ankle uptake (condition not in scope).  An STR entry in November 2000 documented that the CI had been tolerating the condition while his unit was running three times a week, but was having worse pain with an increase to five times a week.  A permanent L3 profile for the condition (same one in effect at separation) was issued at that time, specifying “no ruck marching, may march unladen up to one mile and run no more than two miles three times per week;” and, the MEB was initiated.  The NARSUM stated that the shin splints “are fine as long as he doesn’t run or march.”  The physical exam was normal, documenting the absence of shin tenderness.

The VA pre-separation C&P examiner recorded some bilateral shin tenderness without swelling or deformity (recall normal gait) and stated, “I cannot ascribe any physical impairment to this.  It appears to be quiet at this point in time.”

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and VA provided 0% ratings analogously under 5003 (degenerative arthritis); the VA code 5014 (osteomalacia) defaulting to 5003 criteria.  Without application of VASRD §4.59 (painful motion) or §4.40 (functional loss), it is agreed that the minimum compensable rating under 5003 cannot be supported and, Board members agreed that the evidence would not satisfy criteria of either §4.59 or §4.40.  It is clear that the physical limitations were confined to fairly strenuous conditions without significant baseline disability.  The only alternative coding option for consideration in this condition is analogous to 5262 (tibia and fibula, impairment).  The analogous criteria of 5262, however, refer to contiguous joint (knee, ankle) impairment which was not present in this case and, also provides only for unilateral rating.  Members agreed that the lower extremities could not be reasonably justified as separately unfitting for separate rating, and that rating under 5262 was not supported.  After due deliberation with deference to reasonable doubt, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral shin splint condition.

Contended Mental Health Conditions.  It must first be noted that, regardless of fitness considerations, the obsessive compulsive personality disorder is not service compensable IAW DoDI 1332.38 (E5.1.3.9.2); the latter constituting non-VASRD guidance also binding to the Board IAW DoDI 6040.44 (E3, 4.d).  To the extent that psychiatric impairment cannot be reasonably apportioned between the separate diagnoses, there may be overlap from the ineligible personality disorder with the potentially service ratable MH condition (panic disorder) and, the Board will concede any impairment (relative to fitness or rating) subject to this uncertainty.  The Board’s consideration regarding its MH fitness and rating (if indicated) recommendations will, however, be confined to panic disorder.

A retention physical in 1992 documented a positive response for a query regarding depression or excessive worry.  A 1995 referral to Behavioral Health resulted in an Axis I diagnosis of “life circumstance problem, improving.”  A later STR note records a history that the CI had been prescribed Prozac for anxiety since 1996.  The first STR-documented panic attack occurred on a transport flight in 1997 and resulted in a 2-week P2 profile for “anxiety related symptoms.”  A 1999 MH screening after a European tour documented good interpersonal functioning and assigned a Global Assessment of Functioning (GAF) score of 75 (slight to no impairment).  A series of MH treatment notes between August and December 2001 document a stable improving course (no active panic attacks on Prozac), normal mental status exams (MSE), an Axis I diagnosis of “panic disorder without agoraphobia” (unchanged from MEB submission); and, the concluding note documented the CI’s report that “he is not really having anxiety” and was dealing only with the stress of situational issues associated with uncertainty regarding his future.

The MEB psychiatric addendum was prepared by this same provider at the beginning of the favorable course of treatment just described; and, at that time opined that there was “some evidence of minor impairment;” but, concluded that “this soldier continues to be worldwide deployable provided he has access to a psychiatrist and need not be processed for psychiatric reasons for military disability.”  The commander’s performance statement referenced only the orthopedic limitations, without mention of MH diagnosis or impairment.  The psychiatric profile remained S1 throughout service after the transient P2 in 1997 noted above.
The VA psychiatric C&P evaluation was performed a month prior to separation.  It documented that the CI had not experienced a panic attack in a year and judged that the condition was “mild, predominately controlled.”  The MSE noted an “anxious and superficially pleasant” mood and “constricted, but appropriate” affect; but, was otherwise normal.  The GAF assignment was 75 (unchanged from 1999).  The VA Axis I diagnosis was identical to that of the MEB (panic disorder without agoraphobia), and the examiner’s functional assessment was that “occupational functioning is at most mildly impaired.”  The VA rating consequent to this evaluation was 10%.

The Board directs attention to its recommendation based on the above evidence; and, it’s first assessment with regard to the MH condition, under guidelines of the MH Review Project, is to judge (based on a preponderance of evidence) whether a diagnosis was changed or unfairly eliminated.  Consideration of a diagnosis of PTSD is not relevant to this case, and there was no unfavorable consequence associated with the PEB adjudicated diagnosis.  This case does not, therefore, meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board then turned to its assessment of the fairness of the PEB’s determination that the service diagnosed MH condition (panic disorder) was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the reasonable doubt standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The MEB psychiatric opinion that the condition met retention standards, the lack of significant impairment corroborated by the STR and VA examiner, the S1 profile and the lack of implication of any MH-based performance limitations by the commander are compelling arguments opposing a conclusion that the MH condition can be reasonably recommended as unfitting.  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 panic disorder.

Headache Condition:  The STR documents an onset of headaches in 1989; the only neurology consult in evidence (1995) provided a diagnosis of “occipital neuralgia [non-specific diagnosis, not migraine];” and, afterwards there were no clinical visits for the condition until a series of visits commencing in September 2001 (8 months prior to separation).  The headaches generally responded to self-administered rescue medications; and, there is no documentation of prostrating episodes or associated work loss.  The NARSUM noted headaches “which can last for several days” without further elaboration.  The pre-separation VA C&P examiner reported a headache frequency of “once or twice a week”, but noted that the CI was “not taking any specific medication for this.”  The commander’s statement did not reference headaches or any limitations which might be attributable to headaches.  The condition was never profiled throughout service.

The Board’s main charge is to assess the fairness of the PEB’s determination that the condition was not unfitting under the guidelines cited above for the MH condition.  There was no STR evidence that the headache condition interfered with duty performance, nor any clinical features suggesting that it might be expected to do so.  It was not judged to fail retention standards; it was not profiled; and, it was not implicated in the commander’s statement.  After due deliberation in consideration of all the performance based evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the chronic headache condition.

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 lumbar spine condition, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral shin splints condition, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended obsessive compulsive personality disorder, the Board agrees that it is not a condition constituting a physical disability IAW DoDI 1332.38; and, thus not eligible for compensation.  In the matter of the contended panic disorder, the Board unanimously recommends no change from the PEB determination as not unfitting.  In the matter of the contended headache 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, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131028, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX, AR20140019488 (PD201302098)

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

PD1302098