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AF | PDBR | CY2013 | PD-2013-01394
Original file (PD-2013-01394.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2013-01394    
BRANCH OF SERVICE: Army  BOARD DATE: 20150818
SEPARATION DATE: 20080523                


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Metal Worker) medically separated for lumbar degenerative disc disease without neurologic deficit. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB). The “lumbago” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions (posttraumatic stress disorder (PTSD) and cognitive disorder) for PEB adjudication. The Informal PEB adjudicated “lumbar degenerative disc disease without neurologic deficit” as unfitting, rated 20%, citing criteria of Department of Defense Instruction (DoDI) 1332.39 and Veterans Affairs 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: He requests his medical records be reviewed. His complete submission is at Exhibit A.


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process. The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON :

Service IPEB – Dated 20080320
 VA* - (3 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Lumbar Degenerative Disc Disease without Neurologic Deficit 5299-5242 20% Herniated Disc, Thoracolumbar Spine 5243 40% 20080216
Radiculopathy, Bilateral Lower Extremities, Secondary to Herniated Disc, Thoracolumbar Spine 8520 0%
PTSD Not Unfitting PTSD (claimed as PTSD/Depressive Disorder) 9411 30% 20080211
Cognitive Disorder Not Unfitting Not Addressed
Other x 0 (Not in Scope)
 Other x 2
Combined: 20%
 Combined: 70%
*Derived from VA Rating Decision (VARD) dated 20080527 (most proximate to date of separation [DOS]).


ANALYSIS SUMMARY:

Lumbar Degenerative Disc Disease without Neurologic Deficit. Service treatment records showed the CI deployed to Iraq from September 2004-September 2005. He developed low back pain in March 2005 after he fell backwards down a flight of stairs after a blast. The pain became more intense in March 2006. An X-ray of the spine showed mild lumbar degenerative change. Magnetic resonance imaging showed bulging discs at L4-L5 and L5-S1. Neurosurgeon’s impression was lumbago, no surgical intervention, and conservative treatment. He was referred to a pain management specialist who performed an epidural steroid injection but pain did not improve. He was referred for MEB. At the DD Form 2807, Report of Medical History, dated December 2007, the CI reported tingling and numbness due to back problem and a loss of feeling in his legs due to his back. DD Form 2808, Report of Medical Examination, dated 2 January 2008, referenced the physical therapy exam Form 527, and reported a normal gait. A L3 profile was assigned.

At the narrative summary (NARSUM), dated 13 February 2008, the CI noted the pain persisted, was better in warm weather and increased in the cold. Increased activity like walking, lifting, stooping or sitting increased the pain. Heat, rest, and transdermal electrical stimulation alleviated the pain. He was unable to lift or carry heavy supplies, ruck-march or perform activities like running and jumping or play sports like football or basketball. He denied the use of an assistive device. Exam of the lower back showed no abnormal contour of the thoracolumbar spine and no atrophy or spasm of the paraspinal muscles. There was slight tenderness in the sacroiliac area bilaterally. He could heel and toe walk and sensation was intact. There were no radicular signs or other neurologic deficit. As noted above, the physical therapist performed the range-of-motion (ROM) measures on 8 January 2008, using both goniometer and inclinometer, noting moderate difficulty with transitional movement, especially from sitting to standing. Pain was evident during all spine movements. Bilateral strength was 5/5. He had low back pain as he arose from squatting and while heel walking. Initial ROM was flexion at 30 degrees (normal 90) and extension 10 degrees (normal 30).

At the VA Compensation and Pension (C&P) exam, dated 16 February 2008, performed 3 months prior to separation, the CI reported pain and stiffness in the upper back (presumably he meant lower back since the section is titled thoracolumbar pain) that travels up to the shoulders and down to the upper thighs bilaterally. The pain was constant, crushing, sharp and pinching with a pain level of 8/10. There was no incapacitation or weakness. Treatment included epidural injections and four pain medications. He was able to perform activities of daily living, garden, and push a lawn mower. He was employed in a different job in the Warrior Transition Unit from that of his MOS. Exam showed normal posture, curvature and gait with radiating pain on movement in both legs. Muscle spasm and tenderness were present in the lumbar muscle. Straight leg raise was positive on the left and the right, but there was no ankylosis. Fatigue, weakness, lack of endurance, incoordination and pain did not limit joint function after repetitive use. ROM of the spine was flexion of 30 degrees (normal 90) and extension 20 degrees (normal 30 degrees). The family practice examiner noted signs of intervertebral disc syndrome with likely nerve involvement of the sciatic nerve. The examiner cited bilateral knee and ankle jerks of 2+, which was in normal range. Re-evaluation by the NARSUM PT examiner 25 February 2008 showed slight improvement with flexion to 45 degrees and extension to 15 degrees on repeated testing. Fatigue, weakness, lack of endurance or incoordination did not additionally limit motion. This exam was not as comprehensive as the original exam (did not address gait, spasm and so on.)

The Board directed its attention to its rating recommendation based on the above evidence. The PEB assigned a 20% rating under the 5299-5242 code (degenerative arthritis of the spine) while the VA rated the condition 40%, coded 5243 (intervertebral disc syndrome). The PEB based its rating on the follow up MEB exam that showed improved ROM with flexion at 45 degrees and pain at 25 degrees (with a goniometer) This would be compatible with a 20% rating under the general spine formula. Forward flexion of 30 degrees, as described by both the initial PT exam and C&P exams, warrant a 40% rating. There were no periods of physician prescribed bed rest for any rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (5243). There was no evidence of additional functional loss as characterized by DeLuca but the totality of the record demonstrated a deteriorating lumbar spine condition. The Board noted that the PT exams were not strictly IAW VASRD procedures as they used an inclinometer initially, which typically reports lower ROMs than a goniometer, and reported averages of ROMs. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the lumbar degenerative disc disease condition.

The Board finally deliberated if additional disability was justified for peripheral nerve impairment. The CI reported radiating pain on movement in both legs. However, there were no complaints of muscle problems, and objective peripheral nerve, muscle strength, and reflex testing was normal. Pain (whether or not it radiates), stiffness, or aching is rated under the general formula for the spine and was considered in the spine rating above. The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting. There was insufficient evidence in this case of functional impairment attributable to peripheral neuropathy that adversely impacted duty performance. The Board therefore concluded that no peripheral nerve (radiculopathy) condition could be recommended for additional disability rating.

Contended PEB Conditions. As previously elaborated, it is presumed that the CI has elected review by the PDBR for a MH condition. The CI reportedly sustained a head injury in the same explosion and fall that resulted in the low back injury. He had a short temper and had problems with an officer; his command sent him to anger management while he was in Iraq. After redeployment, he received Neuropsychological testing for TBI, dated December 2007, and reported headaches, memory problems, irritability, difficulty concentrating, sleep problems and ringing in his ears. The exam noted decreased cognitive functioning that was a likely decrease from previous function. At the Psychiatric Addendum, he reported nightmares of people screaming, guns going off, and explosions. He was grumpy and irritable at work and no one wanted to be around him. He endorsed symptoms of PTSD. He was edgy and had concerns about his anger control. In October 2007, he had reported a history of poor anger control, many short-lived relationships and explosive temper while an adolescent. The CI was taking medicines for sleep and pain, reporting to formation daily and talking to his father often. He and his second wife were divorcing. His major concern was his rage and fear of losing control. Diagnoses of PTSD and cognitive disorder were rendered with a Global Assessment of Functioning (GAF) of 45 (serious symptoms, impairment.) He received an S3 profile. A C&P exam was conducted the same day by a different psychiatrist who diagnosed PTSD with a GAF of 70 (mild impairment, symptoms bordering on transient).) The commander’s statement reported that the CI’s physical impairments prevented him from adequately fulfilling his duty requirements but he was otherwise able to function well with peers and supervisors.

The Board considered the appropriateness of changes in mental health diagnoses, PEB fitness determination; and if unfitting, a disability rating recommendation in accordance with VASRD §4.130. Since the diagnoses of PTSD and cognitive disorder were formally considered, the Board concluded that this case did not meet the inclusion criteria of the Terms of Reference of the MH Review Panel. 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. Despite a S3 profile and a commander’s reference to PTSD condition, 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. As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating lumbar degenerative disc disease was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the lumbar degenerative disc disease condition, the Board recommends a disability rating of 40%, coded 5299-5242 IAW VASRD §4.71a. In the matter of the contended PTSD and cognitive disorder conditions, the Board 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 recommends that the CI’s prior determination be modified and retired as follows, and effective as of the date of his prior medical separation:

CONDITION
 VASRD CODE RATING
Lumbar Degenerative Disc Disease
 5299-5242 40%
PTSD
 Not Unfitting
Cognitive Disorder
 Not Unfitting
RATING
 40%










The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130914, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record









XXXXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXXXX , AR20150014991 (PD201301394)


1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.

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:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.



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                                                  XXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

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