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AF | PDBR | CY2013 | PD-2013-02389
Original file (PD-2013-02389.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX   CASE : PD -20 13 - 0 2389
BRANCH OF SERVICE: Army   BOARD DATE: 201 4 0806
Separation Date: 20090105


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (31B20/Military Police Investigator) medically separated for a low back condition. His 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 MEB also identified and forwarded two other conditions (see rating chart below) for adjudication. The Informal Physical Evaluation Board (PEB) adjudicated the low back pain (LBP) with occasional pain radiating down the left leg condition as unfitting, rated 20%. The remaining conditions were determined to be not unfitting (MEB condition #2) and a condition not constituting a physical disability and therefore not ratable (MEB condition #3). The CI made no appeals and was medically separated.


CI CONTENTION : “Physical Evaluation Board failed to include a Psychiatric addendum to MEB. VA rated Psych condition at 30% effective day after service.”


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. The rating for the unfitting LBP condition is addressed below. Additionally the CI’s mental health (MH) condition is within the Board’s defined DoDI 6040.44 purview and is reviewed below. 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 20081017
 VA - (~ 4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
LBP with Occasional Pain Radiating Down Left Leg 5299-5243 20% Degenerative Joint Disease (DJD) of the Lumbar Spine 5243-5242 10% 20080820
Adjustment Disorder with Depressed Mood Not Ratable Major Depressive Disorder (MDD) 9434 30% 20080825
No Additional MEB/PEB Entries in Scope
 Other x 1 20080820
Combined: 20%
 Combined: 40%
Derived from VA Rating Decision (VARD) dated 20090213 (most proximate to date of separation [DOS])


ANALYSIS SUMMARY : The Board notes the current VA ratings listed by the CI for all of his service - connected conditions, but must emphasize that its recommendations are premised on severity at the time of separation. The VA ratings which it considers in that regard are those rendered most proximate to separation. 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 .

Low Back Pain with Occasional Pain Radiating Down the Left Leg Condition . The CI developed gradual LBP during the summer of 2005 , which became an acute, intense ly increase d pain while lifting weights. Although the pain improved, he continued to have minor pain when he would move wrong or lift wrong . The LBP worsened in July 2007. A lumbar spine magnetic resonance imaging ( MRI ) showed degenerative disc disease (DDD) in the lower lumbar spine with disc bulges at L4-5 and L5-S1 which appeared to contact the traversing left L5 and S1 nerve roots without significant spinal canal stenosis. A lumbar spine X -ray performed on the same date was normal. A lumbar spine repeat MRI in January 2008 was unchanged from November 2007. The CI was also evaluated by p hysical t herapy (PT) in January 2008 and noted to have a positive sacral spring test, a positive Patrick-Faber test (for sacroiliac joint dysfunction) on the left and abnormal flexion ; however motor and sensory reflexes were normal. The PT note state d that the CI had LBP that radiated to the posterior left thigh and down to the knee , usually only with running. O n 22 February 2008 , t he p ain m anagement specialist documented that pain radiated from the lower back to the left lower extremity and rated from 2 to 4 to 8 out of 10 depending on activities and movement of the spine, such as twisting, bending and running. The CI was given the first epidural steroid injection (ESI) at this appointment. He had satisfactory pain relief for about a week, however the pain came back to almost the same intensity as prior to the injection. The CI underwent a second ESI on 10 March 2008 with “satisfactory pain relief” at that time . The c ommander’s s tatement dated 26 March 2008 noted that the CI was physically incapable of reasonably performing his duties. The p ain m anagement examiner reevaluated the CI on 2 April 2008 and documented that there was residual pain, however the CI was not taking any pain medication ; at rest the pain was zero to two and when he was actively working, the pain was in the three to five range. The examiner further documented that the CI was able to do his activities without interruption. The examiner opined that the CI did not need another ESI and he would proceed with conservative treatment. The CI continued to follow with PT throughout 2008 and was given a TENS unit for pain control. The MEB n arrative s ummary (NARSUM) exam approximately 5.5 months prior to separation documented that the CI had a daily constant pain level of three to four with an increase when he sat or stood for extended periods. If he walked for greater than 30 to 40 minutes, the pain would radiate into his left leg down to the knee, however there was no leg weakness or numbness. He had functional impairments of an inability to carry a ruck sack, construct a fighting position, conduct 3 to 5 second rushes under fire, wear body armor for any length of time, complete an Army Physical Fitness Test or perform vigorous activities for his MOS. The MEB NARSUM physical exam findings are summarized in the chart below . The VA Compensation and Pension (C&P) exam approximately 4.5 months prior to separation documented that the CI reported a lower back dull ache and stiffness rated at 4/10 with flare-ups to a severity of 7/10 . The CI also reported pain that radiated down the back of his le ft leg to the knee during flare- ups or prolonged walking. The VA C&P exam findings are summarized in the chart below . The CI was given a permanent L3 Profile for LBP. The range-of-motion ( ROM ) measurements performed for the MEB by PT are summarized in the chart below . A third lumbar spine MRI performed on 21 October 2008 showed L3-4 mild disc desiccation with minimal diffuse disc bulge, L4-5 moderate central disc bulge with mild central canal sten osis, and L5-S1 moderate parace n t ral disc bulge with a central annular tear which caused mild asymmetric narrowing to the central spinal canal on the left and showed contact with the transversing left S1 nerve root.

There were three ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation , as summarized in the chart below.


T horacolumbar ROM Degrees
MEB 5.5 Mos. Pre-Sep
 VA C&P 4.5 Mos. Pre-Sep PT 3.5 Mos. Pre-Sep
Flexion (90 Normal)
70
 85 60
Combined (240)
-
225
190
Comment
 Slightly stiff gait; Pos Deluca criteria & painful motion; Neg straight leg rais e (SLR) ; Normal reflexes , strength & sensory; no muscle atrophy Normal gait; Pos Painful motion; Neg SLR; Normal r eflexes , sensory & strength Pos painful motion; Pos Deluca criteria; Waddell ’ s 1/5 positive
§4.71a Rating
 10% (PEB 20%) 10% 20%
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invalid font number 31502 The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the LBP with invalid font number 31502 occasional radiating down left leg invalid font number 31502 condition as 5299 analogous to 5243 invalid font number 31502 i invalid font number 31502 ntervertebral disc syndrome and rated invalid font number 31502 i invalid font number 31502 t 20%. The VA coded the invalid font number 31502 DJD invalid font number 31502 and invalid font number 31502 DDD invalid font number 31502 of the invalid font number 31502 lumbar spine invalid font number 31502 condition as 5243 invalid font number 31502 analogous to invalid font number 31502 5242 invalid font number 31502 d invalid font number 31502 egenerative arthritis of the spine and rated invalid font number 31502 i invalid font number 31502 t 10%. invalid font number 31502 Code 5243 is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. There is no invalid font number 31502 t invalid font number 31502 adequate documentation invalid font number 31502 of invalid font number 31502 incapacitating episodes invalid font number 31502 to meet invalid font number 31502 the rating criteria invalid font number 31502 , invalid font number 31502 therefore, the invalid font number 31502 General Rating Formula for Diseases and Injuries of the Spine invalid font number 31502 will be used. This formula invalid font number 31502 considers the CI’s pain symptoms “With or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease invalid font number 31502 .” invalid font number 31502 Additionally, Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. The sensory component in this case ha invalid font number 31502 d invalid font number 31502 no functional implications. There was no motor impairment present. Since no evidence of functional impairment exists, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment. All three exams considered by the Board for rating purposes were completed invalid font number 31502 before invalid font number 31502 separation, within invalid font number 31502 2 invalid font number 31502 months of each other and all contained invalid font number 31502 adequate invalid font number 31502 ROM measurements invalid font number 31502 for rating invalid font number 31502 . Two of the exams were consistent with a 10% rating while the third invalid font number 31502 exam, most proximate to separation, documents ROM measurements consistent with a 20% rating. The PEB applied a 20% combined rating with consideration given to the following VASRD general policies: VASRD 4.10 (Functional impairment), 4.40 (Functional loss) and 4.59 (Painful motion). invalid font number 31502 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 LBP condition. invalid font number 31502

Adjustment Disorder with Depressed Mood : The c ommander’s s tatement noted that the CI was physically incapable of reasonably performing his duties; there was no mention of a n MH disorder. The CI’s c ase m anager documented that the CI was diagnosed with adjustment disorder, anxiety and depression in 2008. He underwent extensive n europsychological testing , w hich demonstrated a nti - social character features, a significant level of anxiety and tension, emotional lability and limited social skills. The Psychologist diagnosed single episode MDD , u nspecified d ysthymic d isorder , r ule- o ut c yclothymic d isorder ( c yclothymic disorder is a mild form of bipolar disorder in which a person has mood swings over a period of years that go from mild depression to euphoria and excitemen t ) , s chizoaffective d isorder, s chizophrenia, p aranoid t ype, s omatization d isorder, m alingering and p aranoid, b orderline and a ntisocial p ersonality d isorder f eatures. The CI was given a permanent L3 / S1 Profile for his medical condition only . His non-commissioned officer evaluation reports ( NCOERs ) from 2005 through to 2008 consistently documented that the CI was fully capable. T he CI’s psychologist noted the CI’s pessimism about his f uture, b rooding about the past and feelings of hopelessness. The mental status exam (MSE) showed a flat affect . The examiner deferred an Axis I diagnosis and considered a r ule o ut d ysthymic d isorder . The p sychiatric C&P exam approximately 4 months prior to separation documented the absence of any emergency room visits, hospitalizations or outpatient treatment for any MH disorder. The CI reported feeling sad or depressed nearly every day, thoughts of being dead or of someone being killed nearly every day, trouble concentrating, being easily distracted, having sleep impairment, nightmares one to two times per week, episodes of lashing out violently in his sleep and social isolation. The CI denied any loss of time from work because he forced himself to go to work and stated that he could usually do a job and was not distracted or depressed. He reported that he was not happy, had no excitement in his life and was depressed nea r ly every day . He experienced anxiety and felt the need to get away from where he was at the time. The p sychologist diagnosed chronic, recurrent, moderate MDD and rendered a Global Assessment of Functioning (GAF) of 55 , moderate difficulty in social, occupational or school functioning . The p sychiatric MEB NARSUM a ddendum approximately 4 months prior to separation documented that the CI endorsed some depressive symptoms on his screen to enter the W arrior T ransition B attalion and received some brief therapeutic interventions while awaiting MEB completion ; however , there were no significant limitations to duty related to MH problems . The case was reviewed by two p sychologists and a p sychiatrist who concluded that the CI’s diagnosis was a djustment d isorder with d epressed m ood. The p sychiatric n urse p ractitioner documented symptoms of depression, sleep impairment, decreased interest, memory loss, anxiety , difficulty eating in restaurants and ritualistic behavior. The MSE showed a flat affect and anxious mood. The examiner diagnosed d epression. Subsequent MH evaluations in 2011 and 2012 indicated no psychiatric hospitalizations, emergency room visits, suicidal or homicidal ideations. The assigned GAF was 70 , indicating some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and ha ving some meaningful interpersonal relationships.
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invalid font number 31502 The Board directs attenti invalid font number 31502 on to its rating recommendation invalid font number 31502 invalid font number 31502 based on the above evidence invalid font number 31502 . invalid font number 31502 invalid font number 31502 The PEB invalid font number 31502 adjudicated invalid font number 31502 the invalid font number 31502 adjustment disorder with depressed mood condition as not ratable because it is not considered a physical disability in accordance with DoDI 1332.38 invalid font number 31502 . The VA coded the M invalid font number 31502 DD condition as 9434 and rated i invalid font number 31502 t 30%. invalid font number 31502 invalid font number 31502 The well-established principle for fitness determinations is that they are performance-based and the Board’s threshold for countering PEB determinations requires a preponderance of evidence. invalid font number 31502 The CI was never invalid font number 31502 hospitalized invalid font number 31502 for a invalid font number 31502 MH invalid font number 31502 condition, nor invalid font number 31502 w invalid font number 31502 as invalid font number 31502 there any invalid font number 31502 e invalid font number 31502 mergency invalid font number 31502 r invalid font number 31502 oom invalid font number 31502 visits invalid font number 31502 and invalid font number 31502 invalid font number 31502 there invalid font number 31502 was no documentation that he had any suicidal or invalid font number 31502 homicidal invalid font number 31502 intentions. invalid font number 31502 The Board noted that there was no reference to DSM-IV TR criteria for the diagnosis of MDD that was assessed at the NP evaluation and the Board invalid font number 31502 , invalid font number 31502 on careful review invalid font number 31502 , invalid font number 31502 noted there was insufficient evidence to support that full criteria was met. Additionally, the Board concluded, although the CI had some symptoms of depression, and depression might have been the predominant presentation of his adjustment disorder, there was insufficient evidence that any mental health condition regardless of diagnosis, rose to the level of unfitting at the time of separation invalid font number 31502 . invalid font number 31502 All of invalid font number 31502 his invalid font number 31502 NCOERs from 200 invalid font number 31502 5 invalid font number 31502 to 2008 documented that the CI was fully capable. He was given an L3 Profile for a medical condition only invalid font number 31502 ; his invalid font number 31502 invalid font number 31502 MH invalid font number 31502 invalid font number 31502 profile was always S1. invalid font number 31502 The invalid font number 31502 c invalid font number 31502 ommander’s invalid font number 31502 invalid font number 31502 s invalid font number 31502 tatement focused only on the medical condition invalid font number 31502 without invalid font number 31502 mention of any invalid font number 31502 MH invalid font number 31502 condition that interfered with invalid font number 31502 the CI’s invalid font number 31502 MOS invalid font number 31502 duties. invalid font number 31502 invalid font number 31502 The invalid font number 31502 invalid font number 31502 p invalid font number 31502 sychiatric invalid font number 31502 a invalid font number 31502 ddendum documented that after a review of invalid font number 31502 the entire invalid font number 31502 case, two invalid font number 31502 p invalid font number 31502 sychologists and a invalid font number 31502 p invalid font number 31502 sychiatrist agreed with the diagnosis invalid font number 31502 of invalid font number 31502 a invalid font number 31502 djustment invalid font number 31502 invalid font number 31502 d invalid font number 31502 isorder with invalid font number 31502 d invalid font number 31502 epressed invalid font number 31502 m invalid font number 31502 ood. The CI did not annotate a n MH condition on any medical history form he completed within the MEB/PEB process (DD Form 2807 -1 or DD Form 2697). invalid font number 31502 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 invalid font number 31502 adjudication invalid font number 31502 for the invalid font number 31502 a invalid font number 31502 djustment invalid font number 31502 d invalid font number 31502 isorder with invalid font number 31502 d invalid font number 31502 epressed invalid font number 31502 m invalid font number 31502 ood condition. invalid font number 31502


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 LBP with occasional pain radiating down the left leg c ondition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended adjustment disorder with depressed mood condition, the Board unanimously recommends no change from the PEB determination. 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, as follows:


The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 131108 , w/atchs
Exhib it 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, AR20150002959 (PD201302389)
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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