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AF | PDBR | CY2013 | PD-2013-02279
Original file (PD-2013-02279.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2013-02279
BRANCH OF SERVICE: Army  BOARD DATE: 20150714
SEPARATION DATE: 20060316


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Health Care Specialist) medically separated for chronic low back pain. The 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/S3 profile and referred for a Medical Evaluation Board (MEB). The “chronic lumbosacral pain secondary to degenerative disk disease” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded six other conditions see rating chart below for PEB adjudication. The Informal PEB adjudicated “chronic low back pain” as unfitting, rated 20%. The remaining condition ( s ) were determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: The CI attached a two page statement to his application which was reviewed by the Board and considered in its recommendations.


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 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 :

IPEB – Dated 20060216
 VA* - (10 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain w/Right Lower Extremity Radiculitis 5243 20% Degenerative Disc Disease, Lumbar Spine 5243 10% 20070116
Chronic PTSD Not Unfitting Posttraumatic Stress Disorder w/Major Depressive Disorder 9411 50% 20070116
Depression Not Unfitting
Other x 4 (Not In Scope)
 Other x 4
RATING: 20%
 RATING: 60%
* Derived from VA Rating Decision (VA RD ) dated 200 70526 (most proximate to date of separation ( DOS ) ) .

ANALYSIS SUMMARY:

Chronic Low Back Pain. The first record in evidence for the low back pain condition was documented in the acute medical care clinic during deployment in December 2003. The CI reported that while riding in a Blackhawk, a sudden change in direction caused his back to hurt. He was assessed with possible muscle strain and continuation of previously used anti-inflammatory medication was recommended. Treatment records were silent going forward until January 2005 when the CI presented to the medical clinic with report of back pain. The CI reported that his back pain began 2 years prior and that his pain was usually off and on, at an intensity of 5-6/10. At night he experiences a tingling sensation that “feels like needles” in his back. He denied lower extremity weakness, and urinary or fecal incontinence. Physical examination documented mild paravertebral muscle spasm and no other clinical findings. The CI participated in physical therapy, chiropractic care, and underwent consultation with neurology and pain management. He reported right leg pain that began not long after the onset of his back pain. Due to report of right leg pain with radiation to the buttock, posterior thigh, and intermittently to the knee, the CI underwent neurological evaluation. In December 2005, both electromyogram, and nerve conduction studies of the right lower extremity were normal. In addition to physical therapy, the CI was treated with steroid injections, narcotic medication, and non-steroidal anti-inflammatory medication and reported limited benefit. There was no indication that surgery was an option.

The narrative summary (NARSUM) documented that X-rays of the lumbar spine in November 2004 were normal, and magnetic resonance imaging in May 2005 showed mild diffuse disk bulge associated facet arthropathy and posterior spurring resulting in mild to moderate compromise of bilateral neural foramina at L4-L5, worse on the left side. The NARSUM dated 12 January 2006, approximately 2 months prior to separation, recorded that the CI first began having back pain in August 2004 when his was in a tank rollover while deployed in Iraq. It was not clear if there had been additional injuries after the first documented one in 2003. The examiner noted that the CI had required visits to the emergency room four to five times due to back spasms, and in the six months prior to the NARSUM, he had a total of 12 days of quarters. At the time of the NARSUM, the CI reported his back pain with radiation to the right lower posterior knee was constant and dull with an intensity of 2/10. He occasionally experiences locking spasms that requires him to maintain a stooped position for about 20 minutes. Examination of the back was unremarkable, and ROM measurements recorded at physical therapy documented average of 45 degrees of flexion (NL=90 degrees) on three trials, and average of 13 degrees of extension (30), and a combined average ROM of 161. The examiner noted that the CI was prohibited from performing the duties of his MOS secondary to his need for high-dose narcotics (he was responsible for patient care), and that restriction was an administrative decision. However, there were also significant physical limitations in his profile.

The VA Compensation and Pension (C&P) examination was conducted approximately ten months post separation, documented a normal gait and ROM flexion to 95 degrees, and extension to 20 degrees. There was no additional limitation of motion after repeated use. The CI noted that his back pain had continued with intermittent periods of radiation to the right leg. He occasionally gets “locking up of the spine” about once a month and these episodes were brought on by heavy lifting, twisting, and over-exertion. He did not use any assistive device for ambulation. He was employed as a corrections officer and had missed only one day of work due to his back pain.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition at 20% using the 5243 code for intervertebral disc syndrome. The Board considered the evidence. Absent the evidence of incapacitating episodes of a total duration of at least four weeks during the past 12 months the record supports no more than the 20% rating adjudicated by the PEB. There were no additional codes to consider that would lead to a higher evaluation. 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 determination for the low back pain condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that chronic PTSD and depression were not unfitting. The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The psychiatry addendum to the MEB documented participation in treatment and the use of medications to address depressive and PTSD symptoms, and noted the absence of hospitalizations, and suicidal and homicidal thoughts or attempts. The mental status examination was normal. A Global Assessment of Functioning score of 70 for mild symptoms was documented. Although the conditions were profiled, they were not implicated in the commander’s statement and were not judged to fail retention standards. There was no performance based evidence from the record that any of these conditions 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 PTSD and major depressive disorder conditions 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. 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 low back pain with right lower extremity radiculitis condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended chronic PTSD and depression conditions, the Board unanimously 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, 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









XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXXXX, AR20150015455 (PD201302279)


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

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