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AF | PDBR | CY2013 | PD-2013-01075
Original file (PD-2013-01075.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-01075
BRANCH OF SERVICE: Army  BOARD DATE: 20141009
SEPARATION DATE: 20051129


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (25U/Signal Support Systems Specialist) medically separated for a back condition. 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 (S=1) profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “herniated nucleus pulposus (HNP), L4-L5 and L5-S1,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition. The Informal PEB adjudicated “chronic back pain due to lumbar degenerative disc disease (DDD), without neurologic abnormality” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining condition was determined to be not unfitting and therefore not rated. The CI made no appeals and was medically separated.


CI CONTENTION: “Very poor eyesight. Back is getting worse. Hard time walking.”


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. In addition, the CI was notified by the Army that his case qualifies for review of his mental health (MH) condition in accordance with the Secretary of Defense directive for a comprehensive review of members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were unfavorably changed or eliminated during that process. In response to said notification, it is presumed that the CI has elected review by this Board for the MH condition. Accordingly, the case file was reviewed regarding unfavorable diagnosis change or elimination, fitness determination, applicability of VASRD §4.129 and rating (via §4.129 or §4.130 as appropriate) of the MH condition that was eliminated from the MEB and not adjudicated by the PEB. The rating for the unfitting lumbar spine condition and the above considerations for the MH condition are addressed below. Of the conditions determined to be not unfitting by the PEB, members judged that the hip pain condition was specified sufficiently in the application to meet the DoDI 6040.44 scope requirements; and is accordingly addressed below. 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 Military Records.


RATING COMPARISON :

Service IPEB – Dated 20051011
 VA - (STR used and 6 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Low Back Pain due to Lumbar Degenerative Disc Disease w/o Neurologic Findings 5299-5242 10% Herniated Nucleus Pulposus, L4-5 and L5-S1 5243 10% STR
Hip Pain Not Unfitting Right Hip Strain 5299-5252 NSC STR
Depression and Anxiety Not Adjudicated Depression with Associated Anxiety and Insomnia 9434 NSC 20060613
Other x 0 (Not in Scope)
 Other x 2
Rating: 10%
 Rating: 10%
Derived from VA Rating Decision (VA RD ) dated 200 51220 and 20060613 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that 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.

Lumbar Spine Condition. The CI developed low back pain after a fall in 2003 while deployed to Iraq. Magnetic resonance imaging in May 2005 showed DDD with disc bulging at L4-5 and L5-S1. Ongoing pain did not adequately respond to medication, profile restrictions, chiropractic care and injections. At a clinical examination on 31 May 2005 (6 months prior to separation), there was no spinal deformity or scoliosis. Painful motion, tenderness and muscle spasm were present, but gait was not mentioned. “FROM” (full range-of-motion) was reported. Specifically, flexion was noted to be 175 degrees, although it is presumed this represented a transcription error and that 75 degrees was the actual measurement (normal is 90 degrees). Combined ROM was 225 degrees (normal 240 degrees). At the MEB separation exam on 27 and 30 June 2005 (5 months prior to separation) the CI complained of pain in the back that radiated to the right buttock and leg. He reported good exercise habits. Exam noted tenderness in the lumbar spine. At the narrative summary (NARSUM) exam on 30 June 2005 the CI reported that his back pain was caused by lifting, prolonged standing, excessive running or marching. A limited physical exam reported a normal gait.

The Board directs attention to its rating recommendation based on the above evidence. The PEB cited tenderness as justification for a 10% rating under an analogous 5242 code (degenerative arthritis of the spine). Using the service examination findings, the VA assigned the same rating under the 5243 code (intervertebral disc syndrome). Board members agreed that the evidence supports a 10% rating for flexion greater than 60 degrees but not greater than 85 degrees; combined ROM greater than 120 degrees but not greater than 235 degrees; or, tenderness not resulting in abnormal gait or abnormal spinal contour. Routes to a higher rating were considered. Although muscle spasm was observed by one examiner, there was no evidence of associated abnormal spinal contour or gait that would support the next higher 20% rating. The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the 10% criteria under that formula. 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 chronic back pain condition.

Contended PEB Condition. The Board’s main charge is to assess the fairness of the PEB’s determination that hip pain 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 CI reported right hip pain in June 2004 that was present for 9 months and was not a consequence of trauma or injury. Although the MEB separation examiner reported low back pain that radiated to the right lower extremity, the CI marked “No” for “Impaired use of…legs.” The NARSUM examiner noted a history of right hip pain “that has since resolved.” The hip pain condition was temporarily profiled (L2) for a month in 2004 and 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 the hip pain 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 contended hip pain condition and so no additional disability rating is recommended.

Contended Mental Health Condition. As previously elaborated, it is presumed that the CI has elected review by the PDBR for a MH condition. On a post-deployment health assessment in February 2004 the CI indicated that he did not see wounded, killed or dead people during deployment, but that he felt in great danger of being killed. He marked “Some” for “Little interest or pleasure in doing things” and for “Feeling down, depressed, or hopeless.” He was not interested in seeking care for MH issues. A review of the available service treatment record did not show visits for MH problems, but “anxiety disorder…depression…relational problems” were listed on outpatient clinical problem lists.

The CI reported to the MEB separation examiner (DD Form 2807) that he had received behavioral health counseling (but was not currently) and that he experienced anxiety, panic attacks loss of sleep and stuttering. The separation examiner listed diagnoses of “depression/anxiety disorder” and “insomnia” on the profiling section of the DD Form 2808, and assigned an S1 profile. The NARSUM did not identify any MH conditions. The commander’s statement reported that the CI’s physical impairments prevented him from adequately fulfilling his duty requirements. At the VA Compensation and Pension exam 6 months after separation, the CI reported that he had received counseling for 6 months and that he started anti-depressant medication 3 months previously. He stated that his depression began when he entered the service. He was working full-time in a restaurant and denied a history of psychiatric hospitalization or emergency care.

The Board considered the appropriateness of changes in MH diagnoses, PEB fitness determination; and if unfitting, a disability rating recommendation in accordance with VASRD §4.130. Because the separation examination listed a diagnosis of depression and anxiety disorder, but the MEB and the PEB did not list any MH diagnosis, the Board concluded the MH diagnosis was eliminated in the disability evaluation process and therefore met the inclusion criteria in the Terms of Reference of the MH Review Project. The Board next considered whether any mental symptoms, regardless of the presence of a diagnosis, were unfitting for continued military service. The Board’s first charge with respect to these conditions is an assessment of fitness based on a preponderance of evidence. All Board members agreed that the preponderance of evidence of the record reflected non-limiting symptoms (as related to mental functioning) in the period of time leading into the MEB. At no time during the applicant’s military service did he require a psychiatric hospitalization or emergency care. The commander’s statement implicated only physical limitations as an impediment to duty performance. No MH condition was profiled or was judged to fail retention standards by the MEB. There was no indication that a mental health problem limited his ability to perform his job. The Board concluded therefore that there was insufficient cause to recommend the addition of a MH condition as unfit for rating at the time of separation.

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 chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended hip pain condition, the Board unanimously recommends no change from the PEB determination as not unfitting. In the matter of the contended MH condition, the Board unanimously agrees that it cannot recommend it for additional disability rating. 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 20130729, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




                 
XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX, AR20150004172 (PD201301075)

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

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