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AF | PDBR | CY2013 | PD2013 00462
Original file (PD2013 00462.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1300462
BRANCH OF SERVICE: Army  BOARD DATE: 20140711
SEPARATION DATE: 20070515


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SSG/E-6 (11B/Infantry) medically separated for a back pain. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). Chronic low back pain (LBP) was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated chronic LBP, without neurologic abnormality as unfitting, rated 0% with likely application of the VA Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: The CI makes no contentions.


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 applicant. The ratings for conditions meeting the above criteria are addressed below. In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process. The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference. The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with 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, may be eligible for future consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20070412
 VA* - based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain without Neurologic Abnormality 5299-5237 0% Degenerative Disc Disease at L1-S1 5242 10% STR
Other x 0 (Not in Scope)
 Other x 6 STR
Combined: 0%
 Combined: 10%
* Derived from VA Rating Decision (VA RD ) dated 200 80805 (most proximate to date of separation ( DOS ) )


ANALYSIS SUMMARY:

Chronic Low Back Condition. The narrative summary (NARSUM) notes the CI developed LBP while deployed without specific trauma. Lumbar magnetic resonance imaging (MRI) showed mild disc disease and arthritis, with a small disc protrusion at the lowest lumbar disc space with mild spinal canal stenosis (narrowing). Pain involved in the right thigh, but electromyography/nerve conduction studies were negative. The CI was evaluated by neurosurgery and no surgery was recommended. There was a single treatment note of the LBP in record which indicated the CI had LBP with pain into the right buttocks, unrelieved by physical therapy or injections, with normal strength, sensation, and reflexes noted.

The DD Form 2808, Report of Medical Examination, dated 15 February 2007, 3 months prior to separation, noted painful, but “near full ROM” of the lumbar spine. At the MEB exam on 28 March2007, approximately 6 weeks prior to separation, the CI reported chronic LBP, reported as 6 out of 10. The MEB physical exam noted low back range-of-motion (ROM) of flexion of 60 degrees and a thoracolumbar (TL) combined ROM of 200, with painful motion noted. Lower extremity strength and reflexes and straight leg raise tests were normal bilaterally. The remainder of the examination was unremarkable. There were no documented incapacitating episodes in record.

The original VARD dated 5 August 2008, 15 months after separation, service-connected the low back condition based on STRs and noted that the CI had failed to attend a scheduled VA Compensation and Pension (C&P) examination. The first VA C&P exam on 28 May 2009 was performed 22 months after separation. At this VA examination the CI reported his back condition was worse with constant pain exacerbated by any activity. He reported multiple evaluations, but had not had any physical therapy or surgery. He was wearing a self-prescribed back brace. He denied any bowel or bladder problems. The VA examination noted a normal gait and posture. The TL ROM was flexion of 45 degrees; limited by the CI due to pain lower extremity strength and reflexes were normal bilaterally. Lumbar MRI noted similar findings of mild lumbar disc disease and arthritis without significant nerve impingement or spinal canal stenosis.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the chronic LBP condition 0%, coded as 5299-5237 (analogous to lumbosacral strain) and the original VARD rated the lumbar degenerative disc disease (DDD) 10%, coded 5242 (arthritis of the spine), based upon STRs. The Board deliberated the rating of the LBP condition. The CI had chronic LBP with painful forward flexion of 62 degrees, without muscle spasm noted at the MEB examination. The Board considered that current VASRD spine rating guidelines note that each ROM should be rounded to the nearest 5 degrees. In this case rounding results in a forward flexion value of 60 degrees. The Board considered that based upon the single TL flexion measurement in record at the time of separation the CI was on the cusp between the 10% and 20% ratings IAW VARSD general rating formula, specified as forward flexion of “greater than 60 degrees but not greater than 85” and “greater than 30 degrees but not greater than 60” respectively. The Board opined that in this case with only two pieces of information regarding the thoracolumbar spine ROM, the DD Form 2808 examination provided support that the CI’s flexion was between 60 degrees and 90, rather than 60 or less. The Board noted the first VA C&P examination was well outside the 12-month time frame specified in DoDI 6040.44 regarding VA evaluations for Board consideration to have significant probative value in the Board’s rating recommendation, and the CI did indicate that his pain was “worse” further suggesting it did not reflect his condition at separation. The Board opined that the CI’s disability picture at separation most closely met the 10% rating for limited flexion with painful motion without muscle spasm. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 10% for the chronic LBP condition, coded 5242-5243 (DDD with arthritis).
Mental Health Review Contended MH Conditions. Although the CI elaborated no contention related to any MH condition, it is noted that he received a post-separation VA rating for posttraumatic stress disorder (PTSD) and, accordingly, the case file was reviewed for potentially unfavorable diagnosis change or elimination, fitness determination, applicability of VASRD §4.129 and rating (via §4.129 or §4.130 as appropriate) of any MH condition diagnosed prior to separation. The NARSUM and VA records reference service MH treatment, for which the source records are unavailable. The relevant diagnostic and fitness evidence, however, is available and, the Panel agreed that the processing delay in attempting to retrieve the source treatment notes was not justified; since, the missing evidence would not materially affect recommendations.

The Board first reviewed the records for evidence of changes or elimination of diagnosis of the MH condition during processing through the DES. The Board noted that there were no MH evaluations or treatment notes in the STR before it. On the DD Form 2807 the examiner noted that the CI reported that he was diagnosed with anxiety 2 months earlier and was attending group therapy. The CI reported occasional difficulty sleeping, feeling depressed and that he was evaluated for PTSD, but no diagnosis was made. The DD Form 2808 did not indicate any MH condition. The NARSUM noted “adjustment disorder” under past medical history, but did not address or list any current MH conditions. There was no MEB psychiatric evaluation in record. On 2 April 2007, a month prior to separation, the MEB did not forward any MH condition to the PEB. Therefore, this case did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project. The Board next reviewed to see if there was a preponderance of evidence that any MH condition was unfitting for continued military service. The Board considered that t he commander’s statement noted only the CI’ s physical condition as limiting duty performance and did not implicate any MH symptoms or diagnosis ; t he psychiatric profile was S1 throughout service and , there was no evidence in the STR documenting adverse performance due to behavioral or MH issues.

 The original VARD on 5 August 2008, 15 months after separation, did not service - connect a claim for PTSD and noted that the applicant had not attended a scheduled VA C&P PTSD examination. The VARD further noted that “partial service medical records from January 4, 2005 through May 15, 2007 shows assessment for anxiety; complaints of being depressed; report of evaluation for posttraumatic stress disorder (PTSD), no diagnoses; adjustment disorder” and conclud ed the medical evidence did not show that PTSD “has been clinically diagnosed.” A later VARD on 23 July 2009 ( 26 months after separation) rendered a diagnosis of PTSD, rated 30% based upon a VA C&P examination 2 years after separation.

Although there was evidence of PTSD symptomatology arising after separation, all mem bers agreed that there was little evidence which could support a recommendation for adding PTSD as a s ervice diagnosis. It was likewise agreed that even if another s ervice diagnosis (anxiety or depression) was conceded for consideration; there would be insufficient evidence for recommending it as unfitting and eligible for s ervice rating. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend the addition of any MH diagnosis for disability rating.


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 majority recommends a disability rating of 10%, coded 5242-5243 IAW VASRD §4.71a. In the matter of the contended MH condition, the Board unanimously agrees that it cannot recommend any MH condition for additional disability rating. There were no other conditions within the Board’s scope of review for consideration.


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

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Low Back Pain 5242-5243 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130514, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                          
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX , AR20140016337 (PD201300462)
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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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