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AF | PDBR | CY2013 | PD-2013-02181
Original file (PD-2013-02181.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02181
BRANCH OF SERVICE: Army  BOARD DATE: 20141014
SEPARATION DATE: 20061228


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (88M/Motor Transport Operator) medically separated for a back condition. The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “chronic back pain with radicular symptoms to the left leg,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated “chronic low back pain (LBP) status post multiple transverse process fractures in the lumbar spine without significant neurologic abnormality…” as unfitting, rated 10%, with likely application of AR 635-40, B-29. An Administrative Correction was completed by the US Army Physical Disability Agency which had no bearing on the disposition or rating. The CI made no appeals and was medically separated.


CI CONTENTION: “Bilateral knee pain needs to be evaluated; posttraumatic stress disorder (PTSD) needs to be re-evaluated.”


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 Service 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 Service 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, fitness determination, applicability of VASRD §4.129, and rating (via §4.129 or §4.130 as appropriate) of the MH condition adjudicated as not unfitting. The rating for the unfitting back condition and the above considerations for the MH condition are addressed below. No additional conditions are within the DoDI 6040.44 defined purview of the Board. The requested bilateral knee conditions were not identified by the PEB and thus are not 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 PDA Admin Corr – Dated 20060929
 VA - (3 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic LBP s/p Multiple Transverse Process Fractures w/o Significant Neurologic Abnormality 5235 10% Residuals, Transverse Process FX, L1-L5 and R Sacroillac FX w/Left Lumbar Radiculopathy, L5 HNP and DDD 5235 20% 20070210
NO MH on MEB Recurrent Major Depression … 9434 10% 20070324
Other x 0 (Not in Scope)
 Other x 4 20070210
Rating: 10%
 Rating: 30%
Derived from VA Rating Decision (VA RD ) dated 200 70608 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Chronic Low Back Pain s/p Multiple Transverse Process Fractures w/o Significant Neurologic Abnormality. The narrative summary noted chronic LBP with radicular symptoms to the left leg following a vehicle accident downrange in December 2004. The CI was evacuated from theater. Radiographs documented multiple fractures of the lumbar spine’s transverse processes along with degenerative changes of the lumbar discs and a sacral fracture. Treatment with a back brace, multiple epidural steroid injections and physical therapy did not adequately relieve the back pain. The CI was on episodic narcotic pain medications. Electrodiagnostic studies in April 2006 documented left L5-S1 and right L4 radiculopathy (abnormal peripheral nerve findings in the legs). Magnetic resonance imaging demonstrated a degenerative disc and a small central herniated disc at L5-S1 which did not encroach on the nerves. A therapist’s exam 8 months prior to separation (9 February 2006) was following horseback riding and is summarized in the chart below, as is a detailed functional capacity evaluation a week later on 16 February 2006.

At the MEB exam performed on 1 August 2006, 3 months prior to separation, the CI reported continued lower back pain with occasional pain radiating into the left leg as well as tingling and feelings of the left foot going to sleep (paresthesias). The leg symptoms were “intermittent and brought on by certain activities or movements.” The MEB physical exam noted a normal gait with heel and toe walk without difficulty. The back was tender without muscle spasm. There was an area of decreased light touch sensation about 1.5 inches wide from the outside of the left hip to the knee. Straight leg raise (for radicular signs) and reflexes were normal. Goniometric range-of-motion (ROM), with repetitions, was forward flexion of 70 degrees (normal 90 degrees) and combined ROM of 215 degrees (normal 240 degrees) limited by pain. There were no episodes of physician prescribed bed rest in the year prior to separation.

At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported no neurologic symptoms aside from radiating back pain. The CI’s gait was antalgic and the back demonstrated lumbar flattening without tenderness or spasm. There was no motor or sensory abnormality and straight leg raise was positive on the left. ROMs with repetitions, were forward flexion of 60 degrees (normal 90 degrees) and combined ROM of 180 degrees (normal 240 degrees) limited by pain.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.


Thoracolumbar ROM
(Degrees)
 Physio Rx ~8.5 Mo. Pre-Sep FCE ~8.5 Mo. Pre-Sep MEB ~ 3 Mo. Pre-Sep VA C&P ~ 3 Mo. Post-Sep
Flexion (90 Normal)
 30 75 70 60
Combined (240)
 140 215 220 180
Comment
 After horse- ri ding? Painful motion Painful motion; w/repetition; Painful motion; antalgic gait; lumbar flattening
§4.71a Rating
 40% 10% 10% 20%

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the LBP at 10% coded 5235 (Vertebral fracture or dislocation) and the disability description noted that the CI was “without significant neurologic abnormality (despite chronic radiculopathy on electrodiagnostic study); positive tenderness; range of motion limited by pain.” The ROM “limited by pain” comment was a possible reference to rating IAW AR 635-40, B-29 in effect at the time, which based joint and spine ROM ratings only on mechanical loss. The VA rated the low back condition at 20% using the same disability code, but a d ifferent exam.

The Board first considered if there was a separately unfitting radiculopathy (peripheral nerve condition). Pain (whether or not it radiates) is rated under the General Spine Formula and the sensory loss to light touch noted on the exam was not noted on the VA exam. There was no evidence of significant impact on duty performance from the sensory loss. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend an unfitting radiculopathy (peripheral nerve condition).

The Board next considered the appropriate rating for the low back pain condition. The Board considered that the exam and VA exam were essentially equidistant from the date of separation. The Board discussed the various exams and the totality of the record. The majority concluded that the MEB exam was most indicative of the CI’s disability condition at the time of separation and warranted a 10% rating. There was insufficient evidence for any higher rating under code 5243 (Intervertebral disc syndrome) for periods of incapacitation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back condition. The Board concluded therefore that this condition could not be recommended for additional disability rating.

Contended MH Condition. The Board’s main charge is to assess if any MH condition (including the specifically contended PTSD) should have been found unfitting and compensable at the time of separation. The Board’s threshold for 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 record indicated the CI went through counseling for depressed mood in May 2005 with psychiatric medication. He was discharged, on medication, from individual psychotherapy in August/September 2005. His diagnosis was depression, major recurrent. Multiple clinic notes from September and October indicated the CI was “doing well-denies any work site/family/personal issues.” The commander’s statement indicated “(the CI’s) condition has improved over the last few months and is continually improving. … duty performance has been satisfactory, and has been able to perform his MOS task. His knowledge and skills would be a great asset to the unit. He would be able to train younger soldiers both for state duties, drill duties and federal activation.” Depression was noted on the MEB history and physical (DD Forms 2807 and 2808), with medication use (Lexapro – antidepressant) and a recommended S1 profile. The examiner was silent about the criteria in support of a depression diagnosis. The VA C&P exam from 8 June 2007 noted the CI’s combat experience and depression history and diagnosed “adjustment disorder with depressed mood, PTSD symptoms” which the VA rated at 10% as “Recurrent major depression, now shown as adjustment disorder with depressed mood.”

The Board directs attention to its fitness and rating recommendation based on the above evidence. The evidence of the available records showed a mental health diagnosis of depression was rendered during the DES process. There was no formal diagnosis of PTSD proximate to separation and no MH diagnosis was listed on the MEB or PEB. This case therefore does meet the inclusion criteria in the Terms of Reference of the MH Review Project. The Board next considered whether any mental condition, regardless of diagnosis, was unfitting for continued military service. The Board’s threshold for recommending a not-unfit determination requires a preponderance of evidence. All Board members agreed that evidence of the record reflected minimal occupational impairment on the basis of mental health related symptoms. There was no psychiatric profile in service. The commander’s performance statement addressed only physical profile limitations (appeared to recommend retention) and there is no evidence in the file documenting adverse performance due to behavioral or MH issues. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend that any MH conditions rose to the level of being unfitting at the time of separation and so no additional disability ratings are recommended.


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. As discussed above, PEB reliance on AR 635-40, B-29 for rating the low back condition was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the LBP condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication. In the matter of the radiculopathy (peripheral nerve) condition, the Board unanimously recommends no change from the PEB [presumptive] determination as not unfitting. In the matter of the contended MH condition, the Board unanimously agrees that it cannot be added as an unfitting condition or recommend 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 20131102, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record









                 
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX , AR20150006297 (PD201302181)

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

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