RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:                                                                 BRANCH
OF SERVICE:  Army
CASE NUMBER:  PD1001179                                    SEPARATION  DATE:
20090110
BOARD DATE:  20120119


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual  (CI)  was  a  Reserve  2LT/O-1  (92A,
Logistics) medically separated for chronic back pain.  He was  treated,  but
did not respond adequately to fully perform  his  military  duties  or  meet
physical fitness standards.  He underwent a Medical Evaluation Board  (MEB).
 Three  conditions  (back  pain,  major  depressive  disorder,  and  chronic
urticaria)  were  forwarded  to  the  Physical  Evaluation  Board  (PEB)  as
medically unacceptable IAW  AR  40-501.   Three  other  conditions  (asthma,
hypertension, and hearing loss with tinnitus) were listed  on  the  DA  Form
3947 as medically  acceptable.   The  PEB  found  the  back  pain  condition
unfitting, and  rated  it  10%.   The  mental  condition  (major  depressive
disorder)  was  determined  to  have  existed  prior  to  the  CI’s   recent
activation, and was not aggravated by military Service.  The PEB  found  the
chronic urticaria “not unfitting” and therefore not ratable.   The  CI  made
no appeals, and was thus separated with 10% disability, IAW applicable  Army
and DoD regulations.


CI’s CONTENTION:  “I was rated for my thoracolumbar chronic  pain  10%  even
though I provided a VA rating letter showing that I was 40% SC from the  VA.
 For my major depressive disorder with psychotic features that is 30% SC  by
the VA secondary to my back injury they didn't rate me at all.  Even  though
I provided a VA letter showing that I was 30% SC  by  the  VA  and  that  my
condition got aggravated on  March  17,  2007  on  tactical,  pistol,  rifle
qualification IDT  training  and  my  unit  commander  sent  me  to  the  VA
hospital.  The PEB indicated on the DA form 199 that  I  was  not  on  duty.
The unit schedule reveals the truth because I was sent to  the  VA  hospital
on March 17, 2007 while on duty.  For the urticarial condition,  I  was  not
rated even  though  Dr.  Villacis  Bernardo  F.  from  BAMC  Allergy  Clinic
identified this condition as disqualify for retention when I was treated  by
him on January 17, 2008, because I had to use medication  two  times  a  day
for this condition.  I have been service connected for asthma 30% SC by  the
VA because I have to use albuterol since active  duty  before  any  physical
activity. They didn’t rate me at all.  For hypertension I was not rated  but
I have been prescribed medication by the VA.  Radiculopathy on my  left  leg
that is 10% SC by the VA secondary to my back injury.  When I  told  them  I
guess they disregarded and decided to not even list it on the DA  form  199.
Radiculopathy on my right leg that is 10% SC by the VA secondary to my  back
injury.  When I told them I suppose they  disregarded  and  decided  to  not
even list it on the DA form 199. Tinnitus 10% SC by the  VA.   When  I  told
them I guess they disregarded and decided to not even  list  it  on  the  DA
form 199.  Allergic rhinitis 10% SC by the VA.  When I  told  them  I  guess
they disregarded and decided to not  even  list  it  on  the  DA  form  199.
Plantar fasciitis and capsulitis  left  foot  10%  SC  by  the  VA.  Plantar
fasciitis and capsulitis right foot 10% SC by the VA.   Chronic  tonsillitis
10% SC by the VA. Gastroenteritis 10% SC  by  the  VA.  Recurrent  sinusitis
with sinus headaches 30% SC by the VA.  Tinea versicolor 10% SC by  the  VA.
Combined  rate  of  90%  SC  by  VA  but  compensated  at  100%   individual
unemployability because all of my SC conditions I  can't  longer  work.   VA
notice received on October 30, 2007 I turned in this  document  but  somehow
they never came back with the discharge files so I  had  to  request  copies
from the VA so I can present it to you.  It took the PEB to make a  decision
on my evaluation board since November 11, 2007  to  November  18,  2008  and
discharged me with severance pay on January 10, 2009 even  though  documents
were issued to them on March 2007.”


RATING COMPARISON:

|Army PEB – dated 20081107      |VA (closest to separation) – Effective   |
|                               |20030926                                 |
|Condition       |Code          |Rating                                   |
|Asthma          |Not Unfitting |Bronchial Asthma                         |
|↓No Additional MEB/PEB Entries↓|Sinusitis w/ Headaches            |6513   |
|Combined:  10%                 |Combined:  90%                           |


ANALYSIS SUMMARY:
The Board acknowledges the sentiment  expressed  by  the  CI  regarding  the
significant impairment with which his conditions  continue  to  burden  him.
The Board is subject to the same laws for  Service  disability  entitlements
as those under which the Disability Evaluation System (DES)  operates.   The
DES has neither the role nor the authority  to  compensate  service  members
for anticipated  future  severity  or  potential  complications  of  medical
conditions.   That  role  and  authority  is  granted  by  Congress  to  the
Department  of  Veterans’  Affairs  (DVA).   The  Board  uses  DVA  evidence
proximal  to  separation  in  arriving  at  its  recommendations,  but   its
authority resides in evaluating the fairness of DES  fitness  decisions  and
rating  determinations  at  the  time  of  separation.    The   Board   also
acknowledges the CI’s contention for Service ratings for  other  conditions,
and notes that its recommendations in that regard must also comply with  the
same  governance.   While  the  DES  considers  all  of  the  CI's   medical
conditions, compensation can only be offered for those conditions  that  cut
short a service member’s career, and then only to  the  degree  of  severity
present at the time of  separation.   The  DVA,  however,  is  empowered  to
compensate 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.

Thoracolumbar Back Pain.  The CI’s history of low back pain (LBP)  began  in
June 1999, when he injured his back during a parachute landing  fall  (PLF).
The pain was mainly in his lower back, but occasionally he would  have  pain
in his upper back (mid-thoracic region).   He  was  treated  conservatively,
with minimal improvement.  In March 2001, due to persistent  back  pain  and
inability to lift heavy objects, he was reclassified from cannon  crewmember
to administrative clerk.  On 10 April 2002, physical evaluation of his  back
revealed a normal back exam, normal  neurological  exam,  negative  straight
leg raise (SLR), and full thoracolumbar range-of-motion (ROM).  The CI  left
active duty, spent some time in the Texas  Army  National  Guard,  and  then
joined the US Army Reserve (USAR).  In October 2003, he filed  a  disability
claim with the VA.  His back condition was initially  rated  20%  disabling,
but this was later increased to 40%.   He  continued  to  receive  treatment
consisting of oral  medication,  physical  therapy  (PT),  epidural  steroid
injections, and chiropractic treatments.  In July 2006,  while  he  was  80%
disabled, the CI underwent an Army  commissioning  physical  and  he  denied
having any problems with back pain.  A few months later, in  November  2006,
the VA increased his combined disability rating to 90%.

A VA Compensation and Pension (C&P) exam was done in June 2007.  The CI  had
been working as a police officer but  had  stopped  working  due  to  health
issues.  At that exam, he reported LBP, as well as weakness, stiffness,  and
fatigue.  He also complained of pain, tingling, and  numbness  in  his  left
leg.   He  denied  any  incapacitating  episodes  or  hospitalizations.   On
examination, the CI had a normal gait, normal  spinal  contour,  and  stable
heel-toe walk.  There was no muscle spasm, but there was some tenderness  to
palpation (TTP) over the muscles of the lower back.   On  neurological  exam
there was no  regional  motor  weakness.   Reflexes  were  intact.   Sensory
testing revealed some subjective loss of sensation that  did  not  correlate
to organic pathology.  It was also noted that he had  a  positive  Waddell’s
sign with the SLR while seated.  Thoracolumbar ROM is  shown  in  the  chart
below.  One year later, at his June 2008 MEB  exam,  the  CI  complained  of
daily back pain.  On exam, there was mild paraspinous TTP at T4-T5  and  L5-
S1.   The  CI  had  a  normal  gait,  normal  heel/toe  walk  and  a  normal
motor/sensory exam.  SLR was negative  bilaterally.   Deep  tendon  reflexes
were normal.  The CI had positive Waddell’s  signs  for  axial  loading  and
pelvic rotation.  In the treatment record,  there  were  two  pertinent  ROM
exams in evidence.  The VA C&P exam was done 19 mos.  prior  to  separation,
and the MEB exam was six mos. prior to  separation.   These  two  exams  are
summarized below.

|Thoracolumbar       |Separation Date: 20090110             |
|Goniometric ROM     |VA C&P – 19 mo.    |MEB PT – 6 mo.    |
|                    |Pre-Sep (20070604) |Pre-Sep           |
|                    |                   |(20080625)        |
|Flexion (90⁰ is     |85⁰                |58⁰ (rounds up to |
|normal)             |                   |60⁰)              |
|Combined (240⁰ is   |195⁰               |200⁰              |
|normal)             |                   |                  |
|§4.71a Rating       |10%                |20%               |
|Comments            |Pain with extension|ROM limited by    |
|                    |                   |pain              |

The Board carefully reviewed all  evidentiary  information  available.   The
Board determined that,   being closer to separation, the June 2008 MEB  exam
had greater probative value.  At that exam, forward flexion was measured  at
58⁰ (rounds up to 60⁰), and it improved with  repetition  (58⁰,  65⁰,  72⁰).
The PEB and the VA had coded and rated the back condition differently.   The
PEB used code 5237 (lumbosacral strain).  The VA coded  the  condition  5243
(intervertebral disc syndrome).   The  record  did  not  contain  sufficient
evidence of incapacitating episodes, nor was there  any  objective  evidence
of  unfitting  peripheral  nerve  impairment  (radiculopathy).   After   due
deliberation, consideration of all the evidence, and mindful use of  the  VA
Schedule for Rating Disabilities (VASRD) §4.3 (Reasonable doubt); the  Board
determined by majority decision  that  the  preponderance  of  the  evidence
supported a disability rating of 20% for the back  pain  condition.   It  is
appropriately coded 5242 (degenerative  arthritis  of  the  spine)  and  IAW
VASRD §4.71a, meets criteria for the 20% rating since  forward  flexion  was
not greater than 60 degrees.

Mental Disorder.  While the CI was active duty Army (August  1998  –  August
2002), there was no record of any significant  mental  health  (MH)  issues.
At his April 2002 pre-discharge C&P exam, he had no MH  complaints  and  his
psychiatric exam was normal.    After  completing  his  four  year  tour  of
active duty, the CI began working  security  at  a  military  hospital.   In
March 2004, he was diagnosed with major  depressive  disorder  (MDD),  which
was linked to his LBP.  His depressive symptoms  improved  with  medication.
Then in July 2006, he began having  problems  at  work.   He  reported  that
stress at his job was leading  to  worsening  of  his  depression.   Despite
treatment with various medications over a two year  period,  the  depressive
symptoms did not fully resolve.  A psychiatric C&P exam  was  done  in  June
2007.  At this exam the CI reported that he lost his job because of  medical
problems and depression, and because of  allegations  of  improper  conduct.
The CI was married, but was  separated  from  his  wife.   He  denied  panic
attacks, but was having anxiety symptoms.  He also  reported  insomnia,  and
feeling unhappy all the time.  On exam, he was pleasant, cooperative and  in
no distress.  The CI had no impairment of thought processes, or  ability  to
communicate.  He reported some auditory  hallucinations  in  the  past,  but
they had stopped.  He felt people from his workplace were out  to  get  him.
The examiner noted that this paranoid ideation was based on fact,  since  he
was under investigation for improper conduct.   The  diagnosis  was  MDD  in
partial remission,  and  anxiety  disorder  not  otherwise  specified.   His
Global Assessment of Functioning (GAF) score was 64.

At his October 2008 psychiatric MEB exam, he complained of having  arguments
with his wife. He also reported insomnia, low energy, and  tearfulness.   He
had been working as a supply technician, but was fired two days  before  the
exam.  He denied suicidal/homicidal ideation but  reported  having  auditory
hallucinations of a man's voice telling him to hurt the people  who  damaged
his  career.   However,  the  medication  he  had   recently   started   was
controlling these hallucinations and he  had  had  none  for  the  past  two
weeks.  On exam, he was friendly, cooperative, and  had  no  psychomotor  or
speech abnormalities.  His mood was depressed and anxious,  and  his  affect
was congruent.  He  was  alert  and  fully  oriented,  with  intact  memory.
Intellect was average.   There  was  no  evidence  of  delusions  or  formal
thought disorder.  Insight and judgment were  good.   As  noted  above,  the
Army PEB did not rate the mental disorder since it began while  not  serving
in an active duty capacity.  They  determined  that  the  condition  existed
prior to his recent activation, and had  not  been  aggravated  by  military
service.  Review of his treatment record affirms that  the  first  diagnosis
of MDD occurred in 2004, after he had left active duty. He then appeared  to
do fairly well.  In early 2006,  he  denied  any  depression  or  MH  issues
during his Army commissioning exam.   On  numerous  medical  exams,  the  CI
reported that his worsening of depression in July 2006 was due  to  problems
at his civilian job.

The Board carefully considered the evidence.  All Board members agreed  that
the mental condition began while the CI was not serving in  an  active  duty
capacity, and there was insufficient evidence of permanent military  service
aggravation.  All evidence considered, there is not reasonable doubt in  the
CI’s favor supporting a change from the PEB’s adjudication decision for  the
MH condition.

Other PEB Conditions.  Chronic urticaria,  asthma,  hearing  loss,  tinnitus
and hypertension were all adjudicated by the PEB as not unfitting.  None  of
these conditions were profiled, or implicated in the commander’s  statement.
 All were reviewed by the  action  officer  and  considered  by  the  Board.
There is insufficient evidence in the record that any  of  these  conditions
significantly interfered with satisfactory performance of required  military
duties.  All evidence considered, there is not reasonable doubt in the  CI’s
favor supporting reversal of the PEB fitness adjudication  for  any  of  the
stated conditions.

Remaining Conditions.  Foot pain,  knee  trouble,  numbness  &  tingling  of
legs,  heartburn,  rash,  sinusitis,  headaches,  dizziness,  insomnia,  and
several other conditions were also noted in the DES  file.   None  of  these
conditions  carried  profiles  or  were  implicated   in   the   commander’s
statement.  They were all reviewed by the action officer and  considered  by
the Board.  It was determined that none could be  argued  as  unfitting  and
subject  to  separation  rating.   Additionally,  allergic  rhinitis,  tinea
versicolor, tonsillitis, gastroenteritis and several other  conditions  were
noted in the VA rating decision proximal to separation, but were not in  the
DES file.  The Board does not  have  the  authority  to  render  fitness  or
rating recommendations for any conditions not considered by  the  DES.   The
Board, therefore, has no reasonable basis for  recommending  any  additional
unfitting conditions for separation rating.


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.  In the matter of  the  back  pain  condition,
the Board by majority decision (2:1 vote) recommends a disability rating  of
20%.  The single voter for dissent (who recommended no  change  in  the  PEB
adjudication) did not elect to submit a minority opinion.  In the matter  of
the mental condition and IAW Army “line  of  duty”  (LOD)  regulations,  the
Board unanimously recommends no change in  the  PEB  adjudication.   In  the
matter of the urticaria, asthma, hearing loss, tinnitus, hypertension,  foot
pain, knee trouble, numbness/tingling of legs, heartburn,  rash,  sinusitis,
headaches,  dizziness,  insomnia,  or  any  other  conditions  eligible  for
consideration; the Board unanimously agrees that  it  cannot  recommend  any
findings of unfit for additional rating at separation.


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 Thoracolumbar Back Pain                   |5242        |20%     |
|COMBINED    |20%     |


____________________________________________________________________________
__

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20100920, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans' Affairs Treatment Record








                       President
                 Physical Disability Board of Review
SFMR-RB


MEMORANDUM FOR Commander, US Army Physical Disability Agency
 Crystal Drive, Suite 300, Arlington, VA  22202

SUBJECT:   Department  of  Defense  Physical  Disability  Board  of   Review
Recommendation
for


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
        Deputy Assistant Secretary
             (Army Review Boards)

CF:
(  ) DoD PDBR
(  ) DVA