Search Decisions

Decision Text

AF | PDBR | CY2012 | PD2012 01758
Original file (PD2012 01758.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1201758
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20130529
SEPARATION DATE: 20020930


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (1142/Electrical Equipment Repair Specialist) medically separated for depression and debilitating low back pain (LBP). The CI’s previous lumbar strain from 1998 grew acutely worse in 1999 after falling down during a fitness test. She underwent surgery in 2001 but continued to experience pain and significant job limitations. Following the surgery, the CI then presented to mental health for depression which she attributed to her back pain. Neither condition could be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or, in the case of the back pain, satisfy physical fitness standards. She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB). The conditions, characterized as “status post L5-S1 posterior lumbar interbody fusion with continued low back pain without radiculopathy” and “depression,” were forwarded to the Informal Physical Evaluation Board (IPEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The IPEB adjudicated “continued debilitating low back pain” and “depression” as unfitting, rated 10% and 10%. Degenerative disc disease (DDD) and status post (s/p) L5-S1 posterior lumbar interbody fusion with continued LBP without radiculopathy were determined to be C ategory II. The CI appealed to the Formal PEB (FPEB), which affirmed the IPEB findings and ratings, and the CI was separated.


CI CONTENTION: “1) Depression 2) Ongoing low back pain (spinal fusion).” In her contention, the CI also described persistent problems with magalomastia.


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 ratings for the unfitting depression and LBP conditions are addressed below. The Board concluded that because the FPEB acknowledged back pain was possibly exacerbated by magalomastia, this condition also satisfies scope requirements. 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 Naval Records.



RATING COMPARISON:

Service FPEB – Dated 20020730
 VA - (5 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Depression
 9434 10% Major Depression 9434 50% 20020406
LBP
 5299-5295 10% S/P Lumbar Interbody Fusion Secondary to Herniated Nucleus Pulposus and DDD 5293 40% 20020404
DDD w/Collapse of the L5-S-1 Disk Space
 Category II
S/P Lumbar Interbody Fusion w/Continued LBP w/o Radiculopthy
 Category II
No Additional MEB/PEB Entries
 Other x 14 20020404
Combined: 20%
 Combined: 90%
Derived from VA Rating Decision (VA RD ) dated 200 21214 [ most proximate to date of separation ( DOS )] .


ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which her service-incurred condition continues to burden her. The Board wishes to clarify that it 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 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 (Title 38, United States Code). The Board evaluates 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 for disability at the time of separation.

Depression Condition. The Board first addressed if the tenants of §4.129 (mental disorders due to traumatic stress) were applicable. The Board noted that there was no “highly stressful event” for which provisions of §4.129 would apply, and therefore concludes that its application is not appropriate to this case. Consequently, the Board need not apply a 50% minimum Temporary Disability Retired List rating in this case. The service treatment record (STR) reported the onset of “situational depression” in 2000, related to weight gain secondary to LBP, and duty repercussions; outpatient notes described depressed mood, normal thought process, no psychotic symptoms, and no evidence of dangerousness. At the psychiatric MEB exam in July 2001 (14 months prior to separation), the CI endorsed symptoms of loss of interest, excessive sleep, and decreased energy and concentration. She denied ever having suicidal or homicidal thoughts. She denied symptoms of anxiety, mania, or substance abuse. The mental status exam (MSE) described depressed mood, normal thought process, and no suicidal or homicidal thoughts. The MEB examiner (attending psychiatrist) assigned an MEB diagnosis of “major depressive disorder, single episode, moderate,” although both before and after the MEB exam he diagnosed the condition as a lesser non-specific depression. The examiner also coded the Global Assessment of Functioning (GAF) as 55 (moderate symptoms or impairment), although he described her mood as “under good control” only 2 weeks later. In March 2002, she complained of worsened mood in the setting of duty-related stress and was hospitalized. Her discharge diagnoses were adjustment disorder with depressed mood, and occupational problem. At an outpatient exam the day after discharge, she reported feeling “overwhelmed” regarding her work situation. At the VA Compensation and Pension (C&P) exam 6 April 2002 (6 months prior to separation), the CI endorsed daily sadness, inability to concentrate, a lack of enjoyment and motivation, and difficulty sleeping; and no symptoms of anxiety, mania, or substance abuse. She continued the antidepressant therapy and was functioning as an administrative assistant. The examiner noted that the CI “…is able to interact with co-workers, supervisors, and the general public,” and “…gets along well with family, friends, and neighbors,” but opined that she “…would have difficulty tolerating the stress related to work and work-like situations.” On MSE, she was described as depressed and tearful; “disoriented to time” but with no abnormalities of memory; there were no symptoms of psychosis; abstract thought and judgment were intact; and there was no evidence of dangerousness. The VA examiner assigned a diagnosis of moderate major depression and a GAF of 50 (serious symptoms or impairment). The C&P spine examiner noted normal time orientation only 2 days earlier. Outpatient notes dated 18 April 2002 and 13 May 2002 stated she was placed on temporary duty at a hospital which she reported was “much less stressful” and resulted in her “functioning much better.” Due to persistent depressed mood, on 17 May 2002 one of her two psychotropic medications was replaced. An outpatient note by the MEB psychiatric examiner on 30 July 2002 (2 months prior to separation) stated “depression is under good control.” MSE noted normal thought processes and there were no thoughts of harm to self or others. A final follow-up note 3 months after separation described her mood as “stable” on a stable medication regimen, with no MSE abnormalities.

The Board directs attention to its rating recommendation based on the above evidence, and considered if a rating higher than the 10% adjudicated by the PEB was justified. It was noted that the VA’s 50% rating (occupational and social impairment with reduced reliability and productivity) was based on the STR at the time of hospitalization in March 2001 in the context of significant work-related stress; and the VA examination performed a week after the hospitalization. With one possible exception, there were no 50% threshold symptoms present on the VA exam; and within 2 weeks her functioning had improved, in part because she was removed from her usual workplace. Since this improvement persisted until the time of separation 6 months later, all members agreed that a 50% rating was not supported, and debate focused on a 10% vs. a 30% rating. The 30% rating specifies “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks;” and, the 10% rating specifies “occupational and social impairment due to mild or transient symptoms which decrease work efficiency…only during periods of significant stress, or; symptoms controlled by continuous medication.” Board members considered that a 10% rating was supported by symptoms and functioning that varied in response to specific work-place stressors, while social functioning in the workplace and at home was adequate. The psychiatric visits 2 months prior and 3 months after separation described symptoms controlled on medications and normal MSEs. However, the Board also deliberated that two possible threshold symptoms of depressed mood and sleep impairment could suggest the 30% level of disability. The accuracy of “mild or transient” as a description of her symptoms was also questioned in the context of a hospitalization 6 months prior to separation and the need for medication modification due to sub-optimal symptom control 4 months prior to separation. On balance, a Board majority concluded that there was adequate reasonable doubt favoring the next higher 30% rating, and agreed that at the time of separation the condition more nearly approximated the criteria for the 30% rating. After due deliberation, considering all of the evidence and mindful of Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.3 (Reasonable doubt), the Board recommends a disability rating of 30% for the depression condition.

Debilitating Low Back Pain. The 2002 VASRD coding and rating standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards on 26 September 2003. The ratings prior to 26 September 2003 were based on a judgment as to whether the disability was mild, moderate or severe. The current standards are grounded in range-of-motion (ROM) measurements. IAW DoDI 6040.44, this Board must consider the appropriate rating for the CI’s back condition at separation based on the VASRD standards in effect at the time of separation. The CI had an onset of LBP reportedly related to lifting in March 1998. A magnetic resonance imaging (MRI) study in May 2000 showed a small, broad-based disc bulge at L5-S1 which possibly contacted the right L5 nerve root laterally. The CI underwent an L4-5 and L5-S1 discogram in November 2000 which reportedly showed a bilateral L5-S1 disc herniation. She underwent a posterior lumbar interbody fusion at L5-S1 in January 2001, for a grade I spondylolisthesis and predominantly right-sided radicular leg pain. The MEB examiner in July 2001 (6 months after surgery and 14 months prior to separation) noted that the CI was unable to lift more than 10 pounds; to ambulate in her boots or to run; to sit or stand for prolonged periods; or to climb steep inclines. She denied radicular symptoms or bladder or bowel dysfunction. On physical exam, the straight leg and femoral stretch tests were negative. The neurologic exam was normal. X-rays of the back reportedly showed good bony union at L5-S1 without motion, and intact hardware. At the C&P exam in April 2002 (5 months prior to separation), the CI reported constant back pain, stiffness, and fatigability. She described improvement of right lower extremity numbness and tingling following the back operation. On physical exam, she displayed normal gait and posture, and did not require assistance with ambulation; however, lumbar lordosis was noted to be accentuated. There was mild paraspinal muscle spasm at L3-4 and L4-5, without tenderness or weakness. The straight leg test was negative at up to 50 degrees on the right, and up to 70 degrees on the left. Lasegue’s sign was negative for lumbar root or sciatic nerve irritation. The neurologic exam was normal. The examiner noted a scar in the lumbar area that was tender and depressed, without adherence or keloid formation. X-rays of the lumbar spine reported narrowing of the posterior L4-5 disc space. Chest X-rays were reported normal. At a 10 May 2002 outpatient evaluation, the spine surgeon noted that her back pain had worsened over the prior 6 months, and that the CI attributed this to heavy lifting. She was given a prescription of a new narcotic pain medication to replace previous prescriptions. In a letter to the PEB (June 2002), the spine surgeon noted: “She has limited flexion to her knees and extension to 10 degrees before she feels sharp incapacitating pain and spasms in her lower back.” One factor in her pain with extension and limited mobility was thought to be the presence of facet arthritis demonstrated on MRI above the level of the fusion. He added that, “Depression may have a significant contribution to her low back pain;” and “Her breast size is also contributing to her back pain.” In a procedure note 2 weeks after separation, the examiner observed that the CI limped and was unable to toe or heel walk. Injection of anesthetic at the right L4-5 transverse processes resulted in complete relief of pain. At that time, the only listed medication for pain was an anti-inflammatory. ROM in evidence is provided in the following table:

“
Thoracolumbar ROM
(Degrees)
 MEB ~ 14 Mos. Pre-Sep VA C&P ~ 5 Mos. Pre-Sep Spine Surgery ~ 3 Mos. Pre-Sep
Flexion (90 Normal)
 “To her knees” 55To her knees”
Extension (30)
 30 15 10
R Lat Flexion (30)
 Not reported 20 Not reported
L Lat Flexion (30)
 20
R Rotation (30)
 25
L Rotation (30)
 25
Comment
 +Painful motion; mild spasm +Painful motion
§4.71a Rating
 20% 20% (VA 40%) 20% (PEB 10%)

The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating (“with characteristic pain on motion”) under an analogous 5299-5295 code (lumbosacral strain). The VA assigned a 40% rating under code 5293 (intervertebral disc syndrome), and cited as the rationale an October 2002 STR note showing a limp and 40 degrees of forward flexion. The Board noted the documentation of a limp in a procedure note 2 weeks after separation, but flexion of 40 degrees was not described in the available documentation. Board members agreed there was no evidence of “incapacitating episodes” that would justify a minimal rating under the 5293 code, but considered if the mild muscle spasm and mild loss of lateral flexion reported by the VA examiner, or the spasm with flexion reported by the spine surgeon approximated the next higher 20% rating under the 5295 code (“muscle spasm on extreme forward bending and loss of lateral spine motion”). The Board concluded that these examination findings were not consistent with the 20% rating criteria. Finally, a rating under the 5292 code (spine, limitation of motion of, lumbar) was also examined; the Board agreed that “moderate” was an accurate descriptor and therefore a 20% rating was supported via this pathway. The Board also concluded that the PEB properly subsumed the DDD with collapse of the L5-S1 disk space, and the s/p L5-S1 posterior lumbar interbody fusion with continued LBP without radiculopathy conditions as related Category II conditions. And finally Board members agreed that while magalomastia may have contributed to the severity of her LBP, there was no evidence this condition was separately unfitting; and therefore it could not be recommended for separate 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 chronic LBP condition, coded 5292.


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 exercise. In the matter of the depression condition, the Board by a vote of 2:1 recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130. 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 LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5292 IAW VASRD §4.71a. 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Depression
 9434 30%
Debilitating Low Back Pain
 5299-5295 20%
COMBINED
 40%


The following documentary evidence was considered:

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





         XXXXXXXXXXXXXXXXXX
         President
         Physical Disability Board of Review


 MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
 COMMANDER, NAVY PERSONNEL COMMAND
                                          
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) XXXXXXXXXXXXXXXXXX
(c) XXXXXXXXXXXXXXXXXX
(d) XXXXXXXXXXXXXXXXXX
(e) PDBR ltr dtd 18 Aug 13 ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

         a. XXXXXXXXXXXXXXXXXX

         b. XXXXXXXXXXXXXXXXXX

         c. XXXXXXXXXXXXXXXXXX

d. XXXXXXXXXXXXXXXXXX , former USMC, XXX XX XXXX : Disability retirement with assignment to the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective 30 September 2002.
         
3. Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.
                                                      XXXXXXXXXXXXXXXXXX
                                                     Assistant General Counsel
         (Manpower & Reserve Affairs)

Similar Decisions

  • AF | PDBR | CY2012 | PD2012-00744

    Original file (PD2012-00744.pdf) Auto-classification: Denied

    RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW CASE NUMBER: PD1200744 BOARD DATE: 20130314 NAME: X BRANCH OF SERVICE: MARINE CORPS SEPARATION DATE: 20011115 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a U.S. Marine Corps active duty CPL/E-4(6531/Aviation Ordanceman) medically separated for chronic low back pain (LBP). RATING COMPARISON: PEB – Dated 20010921 Condition Chronic Low Back Pain Left Lateral Leg...

  • AF | PDBR | CY2011 | PD2011-01088

    Original file (PD2011-01088.docx) Auto-classification: Denied

    The MEB forwarded lumbar DDD, s/p lumbar interbody fusion as medically unacceptable IAW AR 40-501. The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. RECOMMENDATION : The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

  • AF | PDBR | CY2012 | PD2012-00131

    Original file (PD2012-00131.docx) Auto-classification: Denied

    The MEB forwarded lumbar DDD, s/p lumbar interbody fusion as medically unacceptable IAW AR 40-501. The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. RECOMMENDATION : The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

  • AF | PDBR | CY2012 | PD2012 01769

    Original file (PD2012 01769.rtf) Auto-classification: Approved

    RECOMMENDATION : The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation: Physical Disability Board of Review Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

  • AF | PDBR | CY2013 | PD-2013-02301

    Original file (PD-2013-02301.rtf) Auto-classification: Denied

    The VA increased their radiculopathy rating, but maintained the 40% back rating until a subsequent exam in 2012 led to a decreased spine rating of 20%. RECOMMENDATION : The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation: XXXXXXXXXXXXXXX President Physical Disability Board of Review

  • AF | PDBR | CY2012 | PD 2012 00992

    Original file (PD 2012 00992.txt) Auto-classification: Approved

    RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200992 SEPARATION DATE: 20020722 BOARD DATE: 20130207 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (63B/Light Vehicle Mechanic), medically separated for low back pain (LBP) post L5/S1 fusion. The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication....

  • AF | PDBR | CY2013 | PD2013 01693

    Original file (PD2013 01693.rtf) Auto-classification: Approved

    Lumbar fusion with residual back pain was forwarded to the Physical Evaluation Board (PEB) as not meeting medical standards IAW AR 40-501. Post-Separation)ConditionCodeRatingConditionCodeRatingExam Chronic Low Back…Fusion524110%Residuals, Lumbar Spine Injury…523720%20060317Other x 3 (Not in Scope)Other x 020060317 Combined: 10%Combined: 30% Derived from VA Rating Decision (VARD)dated 20060615(most proximate to date of separation (DOS)) Chronic LBP Status-Post L5-S1 Fusion Condition . BOARD...

  • AF | PDBR | CY2014 | PD 2014 01018

    Original file (PD 2014 01018.rtf) Auto-classification: Approved

    LBP due to DDD S/P Microdiscectomy and Fusion L5-S1 Condition .The CI underwent the following surgeries:1. Two days later the primary care provider noted significant lumbar muscle spasm, tightness, left straight leg raising significantly restricted and decreased reflex of the left lower extremity. I have carefully reviewed the evidence of record and the recommendation of the Board.

  • AF | PDBR | CY2012 | PD2012 01647

    Original file (PD2012 01647.rtf) Auto-classification: Denied

    invalid font number 31502 Service FPEB – Dated 20030917VA (# Mo. The PEB used these rules to rate the chronic LBP condition, coded 5295 lumbosacral strain, and initially rated at 10% (with characteristic pain on motion). The Board notes that although they did not change the VASRD code, verbiage contained on the FPEB’s findings and recommendations document suggeststhe FPEB may have utilized VASRD code 5293, intervertebral disc syndrome (also in effect at the time of separation) to arrive at...

  • AF | PDBR | CY2011 | PD2011-01074

    Original file (PD2011-01074.pdf) Auto-classification: Approved

    The CI was then medically separated with a 10% disability rating. 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 Army Board for Correction of Medical Records. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation: VASRD CODE RATING 5293-5295 COMBINED 20% 20% Chronic LBP...