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AF | PDBR | CY2013 | PD-2013-02212
Original file (PD-2013-02212.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD-2013-02212
BRANCH OF SERVICE: Army  BOARD DATE: 20141021
SEPARATION DATE: 20060317


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Truck Driver) medically separated for chronic low back pain (LBP). The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty but he could perform an alternate physical fitness test. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The chronic LBP condition, characterized as “thoracic spondylosis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded three other conditions (left shoulder pain, depressive disorder and internal hemorrhoids) for PEB adjudication. The PEB adjudicated “chronic non-radiating low back pain” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD). The remaining three conditions were determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “They have me at 50% PTSD [posttraumatic stress disorder], 20% sleep apnea, 10% degenerative disc disease and they have me at 100% do to unemployability.”


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 Veterans Affairs Schedule for Rating Disabilities (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.









RA TING COMPARISON :

Service IPEB – Dated 20051122
 VA - (1 week Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Non-Radiating LBP 5299-5237 10% Thoracic Spondylosis 5237 0% 20060303
Depressive Disorder Not Unfitting Post-traumatic Stress Disorder 9411 50% 20060303
Depressive Disorder 9434 NSC 20060303
Other x 2 (Not in Scope)
 Other x 7
Combined: 10%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 20060606 ( most proximate to date of separation [ DOS ] ). VARD 20070323 increased rating of thoracic spondylosis to 10% effective 20060803.


ANALYSIS SUMMARY:

Chronic Low Back Pain Condition. The narrative summary notes the CI experienced a “pop” in his back during physical training in October 2003 while deployed. He remained with his unit and was seen several times for continued back pain. Following his redeployment he experienced pain during physical training again in June 2004 and reported back pain with lower extremity pain. Back X-rays in July 2004 noted mild scoliosis. Orthopedic consult performed on 1 July 2004 noted back pain without radicular symptoms, with flexion of 80 degrees (normal 90 degrees) and extension of 20 degrees (normal 30 degrees) and the CI was referred to a chiropractor. Despite treatment his symptoms continued. Magnetic resonance imaging performed on 25 February 2005 noted two small disc protrusions in the lower thoracic spine and lower lumbar spine that did not cause spinal stenosis or nerve impingement. Thoracic and lumbar spine X-rays in September 2005 noted degenerative joint and disc disease, and mild thoracic scoliosis. The CI initially reported radiation of pain to both lower extremities but later notes indicated he reported right lower extremity pain with prolonged walking. Electrodiagnostic studies performed on 3 October 2005 were normal without evidence of radiculopathy. At the MEB orthopedic examination performed on 5 October 2005, the CI reported back pain. The examination noted diffuse tenderness to palpation (TTP) of the spine; slightly decreased flexion and extension with negative straight leg raise testing and normal reflexes bilaterally. At the MEB examination on 26 October 2005 the CI reported back pain. The MEB physical exam noted physical therapy measured thoracolumbar (TL) range-of-motion (ROM) of flexion of 73 degrees, 73 degrees, 73 degrees, with pain and otherwise full ROM. There was TTP of the lower thoracic and upper lumbar spine with normal heel/toe walk, sensation and reflexes, with negative straight leg raise (SLR) bilaterally.

At the VA Compensation and Pension (C&P) exam 3 March 2006 performed a week prior to separation, the CI reported lower back pain since 2003 and left leg pain and numbness since 2004, with morning stiffness. He reported missing work two times per year for the back pain. On examination there was normal gait and posture, without radiating pain with movement noted. TL ROM was full, without muscle spasm or tenderness and no painful motion was noted. LE strength sensation and reflexes were normal with negative SLR bilaterally. The examiner noted there were no signs of intervertebral disc syndrome with chronic nerve root involvement. Lumbar spine X-rays were reportedly within normal limits.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the chronic LBP 10%, coded 5299-5237 (analogous to lumbosacral strain) and the VA rated it 0%, coded 5237. The Board noted that at the C&P examination the CI had a normal examination, however, continued to report constant back pain increased by activity and imaging studies of the thoracic and lumbar spines did indicate degenerative changes which were consistent with the CI’s reported pain.

The Board agreed that the evidence in the service treatment record and at the MEB examinations supported a 10% rating according to the current VASRD General Formula for rating the spine for TL flexion of “greater than 60° but not greater than 85°.” The Board also concluded that although the C&P examination was normal, it may have indicated a “good” day for the CI and, that with consideration of §4.40 (functional Loss), which states “ . . . a part which becomes painful on use must be regarded as seriously disabled,” the CI’s back pain condition still merited the minimum compensable rating. Additionally, IAW DoDI 6040.44 the Board may not recommend a lower combined rating than that conferred by PEB. The Board reviewed to see if there was any path to a higher evaluation than 10%, but there was no “muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour ; ” or, evidence of ratable peripheral nerve impairment in record that would provide for additional or higher rating of the back condition. At the C&P examination the CI reported missing work twice per year due to back pain but according to the VASRD for “. . . evaluati ons under diagnostic code 5243 ( intervertebral disc syndrome ) , an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician ” and there was no corroboration of incapacitating episodes meeting this definition in the available record s . After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.40, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic LBP condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the contended MH condition, diagnosed as Depression, not otherwise specified (NOS) 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.

Depression NOS. The psychiatric MEB consultation indicated that the CI had a history of intermittent depressive episodes since adolescence and a family history of Bipolar disorder. The CI’s military enlistment physical did not note any MH symptoms or diagnosis and there are scant MH treatment notes in the service treatment records (STR) available. An MH note dated 11 March 2005, approximately 14 months prior to separation, referred the CI to primary care for an anti-depressant for symptoms of depressed mood, diminished interest and pleasure in activities, weight gain, insomnia, occasional anxiety episodes, decreased energy and poor concentration. The CI was prescribed an anti-depressant (Wellbutrin) for a working diagnosis of depressive disorder NOS. At follow-up MH visits the CI reported the Wellbutrin was helpful, although he continued to report decreased mood, but denied any suicidal or homicidal ideation (SI/HI). The CI’s antidepressant medications were changed a few times and each time he was placed on the Wellbutrin he reported improvement in his symptoms. An MH visit on 12 July 2005 noted the CI was making plans for the future and discussed training to be a forklift driver after separation. The MEB psychiatric consult performed on 17 September 2005, approximately 8 months prior to separation, noted that the CI reported that he initially sought MH treatment 6 months earlier when his wife gave him an ultimatum because he was irritable and angered easily since his deployment. He described his deployment as “rough”; his job was to put unexploded bombs into a truck and remove them. He reported that symptoms in March 2005 included increased startle reaction, sleep difficulties, sometimes waking up in a “cold sweat” thinking what might have happened and that occasionally he could “smell the desert” and had occasional combat-related nightmares and to cope he avoided others. At the time of the MEB psychiatric consultation the CI reported despite medication he was again experiencing depressive symptoms of increased appetite, insomnia, irritability and loss of interest in activities, without SI. The CI reported depression episodes since adolescence that were lasting for longer periods of time in the last 1-to-2 years. He reported heavy drinking in the past that had stopped before he joined the military, but recurred after return from deployment. However, he reported stopping on his own after a few months.
He was noted to be in a good marriage with two daughters and two step-children. The CI expressed that he would like to stay in the military but was discouraged about that possibility; he was in the process of a MEB for his back pain. The mental status exam (MSE) noted a depressed mood and was otherwise normal. The Axis I diagnosis was depressive disorder NOS, existed prior to service and not permanently aggravated by service. Under Axis IV psychosocial stressors the examiner noted that the CI had been exposed to combat with some combat stress symptoms upon return. The Global Assessment of Functioning was 65 (mild impairment range). The MEB psychiatric examiner concluded the CI met retention standards in accordance with AR 40-501. At a MH visit on 15 November 2005, approximately 6 months prior to separation the CI reported his mood was “significantly better” with medication adjustments following the MEB psychiatric consultation and the MSE was normal.

At the VA C&P Mental Disorders examination performed on 8 March 2006, a week prior to separation, the CI reported depression symptoms and anxiety, with nightmares and flashbacks one to two times per week. He reported frequent difficulty getting out of bed due to low motivation and that the response to medication was poor. There was no history of emergency visits for MH treatment or psychiatric hospitalizations. The CI related multiple significant combat-related stressors which caused feelings of fear and helplessness, meeting the definition of a DSM-IV PTSD Criterion A stressor. He specifically endorsed Criteria B – E (characterized in literal DSM IV-TR language by the examiner). However, he also noted a good relationship with his wife, improved since his MH treatment and good relationships with his children. The MSE noted a depressed mood and decreased concentration (by testing counting by five, backwards). The examiner also noted panic attacks less than once per week as described by the CI. The VA rated PTSD, 50%. The VARD 23 March 2007 indicated the CI was not currently working but was looking for a job. He was approved for individual unemployability due to his “service connected disabilities” – which included compensable disability due to thoracic spondylosis, PTSD and sleep apnea.

The Board first reviewed the diagnostic variance between the PEB conferred MH diagnosis of depressive disorder NOS and the VA diagnosis of PTSD to see if a preponderance of the evidence supported a recommendation for changing the MH diagnosis. Notes in the STR do not corroborate the MH symptoms as reported to the C&P examiner a week prior to separation. The MEB psychiatrist noted the CI was involved in combat and reported some post - traumatic disorder symptoms following his redeployment. However , the MH treatment notes prior to separation do not provide support that DSM-IV-TR diagnostic criteria were fully met, particularly Criteria C ( a voidant/numbing) at any time during treatment. Notes in the STR before separation indicated that the CI desired to remain in the military, reported improved mood and sleep on medication, was involved in stable and good family relationships, and was planning for the future. There is no MH entry in the STR indicating an expert MH opinion in support of a diagnosis of PTSD or mention of PTSD as a possible diagnosis at any time during the course of treatment while in Service . Member consensus was that there was not a preponderance of evidence to support a recommendation for changing the MH diagnosis as adjudicated by the s ervice.

The Board then turned to its assessment of the fairness of the PEB’s determination that the established MH condition, regardless of specific diagnosis, was not unfitting. The Board considered that there was no psychiatric profile in service; the commander’s performance statement addressed only physical limitations; and, there is no evidence in the STR documenting adverse performance due to behavioral or MH issues. 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 contended MH condition and so no additional disability rating is 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. 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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended depressive disorder condition, the Board unanimously recommends no change from the PEB determination as not unfitting. 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 20131108, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                 
XXXXXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXXXXX , AR20150008377 (PD201302212)

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:




Enc l                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA






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