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AF | PDBR | CY2013 | PD2013 00254
Original file (PD2013 00254.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1300254
BRANCH OF SERVICE: Army  BOARD DATE: 20130910
SEPARATION DATE: 20051125


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92A/Supply) medically separated for low back pain (LBP). The CI experienced an onset of back pain during a sexual assault in June 2002. Since that time she has had intermittent back pain which was exacerbated during pregnancy. She was managed conservatively with medication and profiles but could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The LBP condition was forwarded to the Informal Physical Evaluation Board (IPEB) IAW AR 40-501. No other conditions were submitted by the MEB. The IPEB adjudicated “chronic back pain with a history of a physical muscular injury” as unfitting, rated 0%, with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI appealed to the Formal PEB and the United States Army Physical Disability Agency (USAPDA) reviewed the written rebuttal and determined there was no new evidence and the case had been properly adjudicated. The USAPDA affirmed the IPEB findings and rating and the CI was medically separated.


CI CONTENTION: “5 bulging disc in lower back, PTSD from being raped in Jun 02, broke ankle(R).”


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 Army that her case may eligible for review of the military disability evaluation of her mental health condition in accordance with 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 mental health diagnoses were changed during that process. The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR. The rating for the unfitting back condition is addressed below. In addition, in accordance with Secretary of Defense directive for a comprehensive review of mental health diagnoses that were changed during the Disability Evaluation System process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of unfitting mental health diagnoses in accordance with the VASRD §4.129 and §4.130. 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 20050707
 VA - (1 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Low Back Pain
 5237 0% Lumbar Spine DDD l3-S1 and Osteoarthritis w/Chronic Strain 5243 40% 20060112
No Additional MEB/PEB Entries
 Other x 6 20051007
Combined: 0%
 Combined: 60%
Derived from VA Rating Decision (VARD) dated 20060112 ( most proximate to date of separation).


ANALYSIS SUMMARY:

Low Back Pain Condition. The MEB narrative summary (NARSUM) noted a history of back pain since a sexual assault in June 2002. The CI’s back pain had been recurrent and intermittent and service treatment records (STRs) reflect back pain with pregnancy. The CI sought care in June 2004 for recurrent back pain without radiation that was aggravated by activity but without history of specific injury. On examination, there was pain with motion but no evidence of radiculopathy. X-rays of the lumbar spine were normal. Magnetic resonance imaging of the lumbar spine 14 September 2004 demonstrated mild degenerative changes with disc bulging at L3-4, L4-5 and L5-S1 without herniation or impingement on nerve structures. Due to persisting LBP, the CI was referred for MEB in October 2004. No further STR entries for care of back pain are in evidence after initiation of the MEB. At the MEB NARSUM exam on 22 April 2005, the CI reported continued chronic LBP, rated as mild 3 out of 10 improved with over the counter medication. At the time of examination the CI was working in an office environment that involved “lifting packages, climbing up ladders and breaking and opening pallets,” which “allegedly, she is able to endure the pain.” Her back pain was aggravated by running, sit-ups and lifting heavy objects. She was unable to perform strenuous military tasks (e.g. move with a fighting load at least 2 miles), but was able to perform unlimited walking, biking and swimming and run at her own pace and distance. Physical examination revealed a normal gait, negative test for radiculopathy, no motor weakness or neurological deficits and limitation of motion associated with pain. There was focal tenderness along the entire lumbar spine. The MEB examiner cited the range-of-motion (ROM) testing performed by physical therapist on 27 January 2005, showing active ROM of flexion 90 degrees, extension 20 degrees, left lateral bending 33 degrees, right lateral bending 34 degrees and right and left rotation of 30 degrees (combined 230 degrees). STRs again fall silent with regard to treatment of LBP. In June 2005, the CI injured her ankle in a fall off of a trampoline. Treatment records show care for ankle pain, however no complaints of back pain were associated with the fall off of the trampoline. A 4 October 2005 physical therapy note records a complaint of increased LBP preventing her from working out.

A VA Compensation and Pension (C&P) examination dated 5 October 2005 was performed by private physician approximately 6 weeks prior to separation. The CI reported a constant dull aching pain that lasts for 30 minutes when present and with an intensity of 5 out of 10. The pain was relieved by rest and medication. She stated her condition had not resulted in any incapacitation or any time lost from work. The physical exam noted absence of muscle spasm, some tenderness to palpation and no evidence of radiculopathy. Gait and posture were normal. On ROM examination flexion was recorded as 10 degrees, the point at which pain occurred. Extension was 20 degrees, and lateral bending and rotation were 30 degrees in all directions. There was no additional limitation after repetition, but pain was noted following repetitive use. X-rays performed at the time of the C&P examination were normal. A 14 October 2005 physical therapy record entry makes no mention of LBP.


The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition 0% coded 5237 (lumbosacral strain) citing normal ROM. The VA rated the back condition under code 5243 (intervertebral disc syndrome) 40% and cited lumbar spine degenerative disc disease L3-S1 and painful motion and limited flexion of 10 degrees from the C&P examination. The Board considered the ROM examination from the C&P examination and noted that it was dramatically inconsistent with the MEB examination in flexion but was essentially the same in all other directions. Therefore, the Board carefully considered the whole record in order to develop a consistent picture of the CI’s back condition. The flexion recorded was the point at which pain began. Motion in extension, lateral bending, and rotation was the same as the MEB physical therapy examination. The Board agreed in this case that the markedly restricted flexion documented in the C&P examination was not consistent with the expected severity suggested by the pathology and was inconsistent with prior examinations, and unexplained by repeat injury. Upon deliberation the Board agreed in this case that the MEB examination and physical therapy ROM examination were more reflective of the anticipated severity based on the clinical pathology. Board members agreed the condition most nearly approximated the 10% rating based on the preponderance of evidence. There was no muscle spasm causing altered gait or spinal contour to support a 20% rating. There was no evidence of incapacitating episodes due to intervertebral disc disease that would meet the criteria for a minimum rating under the alternative formula for incapacitating episodes due to intervertebral disease. There was no evidence of separately unfitting peripheral nerve impairment in this case. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the LBP condition.

Contended Mental Health Condition. The Board considered the mental health condition regarding appropriateness of changes in diagnoses and fitness determination. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the fitness determinations based on a preponderance of evidence. The serial physical profile report, dated 27 October 2004 (and 17 November 2004) initiating the MEB did not list a mental health condition and indicated an S1 profile, no restrictions from a mental health perspective. The MEB did not forward a mental health diagnosis for PEB consideration. Treatment records indicated the CI presented to mental health in September 2002 and was diagnosed with acute posttraumatic stress disorder associated with a sexual assault. The CI’s diagnosis evolved over time to depressive disorder not otherwise specified. Depressive symptoms improved and by 13 November 2002 depression was indicated to be in remission on medication. The CI stopped treatment in March 2003. She returned to mental health in June 2004 for recurrent symptoms and resumed treatment. Mood was indicated to be improved at a January 2005 clinic encounter. The psychiatric MEB NARSUM dated 28 February 2005 recorded complaint of mild depressed mood, and insomnia partially related to back pain. Her psychiatric condition did not preclude the performance of her supply duties. The mental status examination was normal. The psychiatrist indicated the CI’s psychiatric condition of depressive disorder not otherwise specified, was not medically disqualifying. The mental health condition was not included in the MEB since the condition met retentions standards with an S1 profile. A mental health clinic follow up 16 June 2005 noted no problems at the workplace or at home. This condition was not profiled; was not implicated in the commander’s statement; and, was not judged to fail retention standards. It was reviewed and considered by the Board. There was no indication from the record that this condition 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 fitness determination for the contended mental health condition, and therefore, no additional disability rating can be 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 LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a. In the matter of the contended mental health condition (depressive disorder not otherwise specified) the Board unanimously agrees that it cannot recommend the condition for additional separately unfit disability rating.


RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Back Pain
 5237 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130502, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130018510 (PD201300254)
1. 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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation. This decision is final.

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.

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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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