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AF | PDBR | CY2013 | PD2013 01034
Original file (PD2013 01034.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1301034
BRANCH OF SERVICE: Army  BOARD DATE: 20140228
SEPARATION DATE: 20070520


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (19K/Tanker) medically separated for chronic mid 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 U3 profile and referred for a Medical Evaluation Board (MEB). The chronic mid back pain condition, characterized as medically unacceptable from MEB, was forwarded to the Physical Evaluation Board (PEB). The MEB also identified and forwarded six other conditions for PEB adjudication. The Informal PEB adjudicated chronic low back pain (LBP) as unfitting, rated 10%. The remaining conditions were determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “Because I have lost two more jobs due to my health and have since started to draw SSI.”


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 chronic mid back pain condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. However, the CI additionally was notified by the Army that his case may be eligible for a review of the military disability evaluation of any mental health (MH) 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 MH diagnoses were changed during that process. As a result, the Board has undertaken a review of the CI’s MH condition, which is also addressed below. Any additional conditions or contentions 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 20070405
 VARD 20080108– 8 months Post-Separation)*
Condition
 Code Rating Condition Code Rating Exam
Chronic Mid Back Pain 5237 10% Lumbar Strain 5237 10% 20071019
Mild Proteinuria Not Unfitting Bilateral Upper Arm Rash 7899-7806 0% 20071019
Elevated Blood Pressure Not Unfitting Hypertension 7101 10% 20071019
Adjustment Disorder with Anxiety Not Unfitting Adjustment Disorder
NSC
Lump, Medial Aspect, Right Knee Not Unfitting Status Post Right Knee Injury Right Knee Strain and Scar 5260 10% 20071019
No Additional MEB/PEB Entries
 Other x 5 20071019
Combined: 10%
 Combined: 60%
* Derived from VA Rating Decision (VA RD ) dated 200 80108 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB. However, the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. This Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation. The Board utilizes service and DVA evidence proximal to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-month interval for special consideration of post-separation evidence, which is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Chronic Mid Back Pain Condition. Although the MEB NARSUM reports that the CI’s back pain started in Iraq, after a non-combat industrial accident in the summer of 2003, a review of the service treatment records reveals that upper back pain, 5-6 out of 10, constant but not severe, began 2 years earlier, and that LBP had been first documented 8 years earlier on 11 September 1995. The MEB NARSUM notes that over the next several years after the injury in Iraq, conservative therapy, including medications, physical therapy, chiropracty, osteopathic manipulation and injections into the spinal facet joints, failed to relieve the symptoms. X-rays and bone scan were normal, but a magnetic resonance imaging of the thoracic spine, dated 22 June 2006, a year prior to separation, revealed “early degenerative change of the T9-T10 disk” and “slight posterior bulge of the T10-11 disc, without significant resulting stenosis” (i.e. without compression of nerve structures). On 13 November 2006, 6 months prior to separation, the CI was evaluated in an orthopedic clinic. Noting that this condition was not amenable to surgery, it was documented that the lumbar spine appeared normal, was non-tender, without muscle spasm, with a normal gait, reflexes and normal sensory and motor examination. At the MEB examination, the CI reported that he could not tolerate the weight of a rucksack and inability to either run or do sit-ups. On the DD Form 2808, Report of Medical Examination, the MEB physical examination noted decreased range-of-motion (ROM) of the thoracic spine secondary to degenerative disc disease, as noted in the table below. The NARSUM also noted a limitation to lifting less than 10 pounds and inability to build a fighting position or wear required equipment. The report of the VA (QTC) examination, performed 5 months after separation, documents that the CI reported 4 years of constant lumbar pain, 6 out of 10, noted as “stiffness when bending” and “weakness when moving around,” which was “elicited by physical activity,” and relieved by rest and medication (muscle relaxant and narcotic pain medication), which allowed him to function. The CI denied any periods of incapacitation.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.


Thoracolumbar ROM
(Degrees)		 PT ~9 Mo. Pre-Sep
(20060814)
 MEB ~ 2 Mo. Pre-Sep
(20070320)
 VA C&P ~ 5 Mo. Post-Sep
(20071019)
Flexion (90 Normal) fingertips 8” from floor 90 90
Extension (30) 15 20 30
R Lat Flexion (30) n/a 20 30
L Lat Flexion (30) n/a 15 30
R Rotation (30) n/a 10 30
L Rotation (30) n/a 10 30
Combined (240) n/a 165 240
Comment “normal range of motion of the thoracic spine.”
No spine tender ness , N ormal muscle tone
No signs of radiculopathy 		ROM limited due to pain.
Tender to palpation in thoracic area;
No signs of radiculo pathy. 		P ain w / repetitive motion.
No tenderness .
N o spasm .
N o weakness, fatigue, lack of endurance or i ncoordination.
No signs of radiculo pathy.
§4.71a Rating 10% 10% 10%
invalid font number 31502

The Board directs attention to its rating recommendation based on the above evidence. The PEB described this condition as “mid-back pain” with “noncompressive degenerative disc disease at T9-10 and T10-11,” noting that pain causes “limited motion and some localized tenderness.” The PEB rated this at 10% using VASRD code 5237 for lumbosacral strain. In a VARD dated 8 January 2008, based upon a QTC examination 5 months after separation, the VA rated this condition at 10% under VASRD code 5237 for lumbosacral strain, noting “objective factors of abnormal exam with subjective complaints of pain.” The VARD noted the absence of additional limitation due to repetitive movement, incoordination, fatigue, weakness, or lack of endurance, noting also the absence of “any evidence of radiating of pain on movement, muscle spasm or tenderness.” In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. The Board notes that the current VASRD standards for the spine were in effect at the time of this CI’s separation. The Board agreed that the ROM documented at the time of the MEB physical examination, as well as the VA evidence from after the date of separation, supported a rating no higher than 10% for moderate limitation of motion under VASRD code 5237. The Board also considered if an additional disability rating was indicated due to peripheral nerve impairment or incapacitating episodes. However, there was neither evidence of ratable peripheral nerve impairment, which would provide for additional rating, nor documentation of incapacitating episodes, which would provide for a higher rating under that formula. The Board concluded therefore that this condition could not be recommended for additional disability rating. 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 mid back pain condition, rated at 10% and coded 5237, as “lumbar strain.”
Contended Mental Health Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the CI’s MH condition, adjustment disorder with anxiety, 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. The Board also considered the appropriateness of any changes in the MH diagnoses along with the PEB fitness determination; and if unfitting, whether the provisions of VASRD §4.129 were applicable, with a disability rating recommendation in accordance with VASRD §4.130. The Board first considered the appropriateness of any changes in the MH diagnoses. Adjustment disorder not otherwise specified with anxiety was referred into the DES and remained unchanged throughout the DES processing. The Board determined that no MH diagnoses were changed to the applicant's possible disadvantage in the disability evaluation process. This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

On the DD Form 2807, Report of Medical History, dated 5 March 2007, the CI noted “PTSD-like symptoms and insomnia.” The examiner requested an MH consultation. In an “initial psychiatric visit” on 9 March 2007, 4 days prior to the MEB and 2 months prior to separation, the CI noted a lack of energy, irritability and poor sleep. Mental status examination by a psychiatrist at this time revealed a dysthymic mood, a normal affect and a “normal” mental status. The psychiatrist prescribed no medication and recorded the diagnosis of adjustment disorder with anxiety, as a “reaction to stress.” The MEB NARSUM, drafted 3 days later, noted the diagnosis of adjustment disorder with anxiety, noting also that “no profile has been issued” and that the CI “has been released from mental health clinic without limitations.” His permanent profile, dated 12 March 2007, was S1 (without duty limitations or restrictions secondary to a MH condition). The commander’s statement, dated 12 March 2006, noted only physical limitations adding that the CI performed “administrative and official duties expertly.” A VA (QTC) psychiatric examination, dated 28 November 2007, 6 months after separation, concluded that the CI’s symptoms did not “appear to be of such severity to indicate” a MH condition and stated “Axis I: No psychiatric diagnosis.” The VARD, dated 8 January 2008, denied the CI’s application for service-connection status for adjustment disorder with anxiety. The Board’s next considered the fitness of the MH condition regardless of actual diagnostic label based on a preponderance of evidence. As noted above, the adjustment disorder with anxiety was neither profiled nor implicated in the commander’s statement, and was not judged to fail retention standards, but was reviewed by the action officer and considered by the Board. Additionally, the Board notes that the condition of adjustment disorder does not constitute a physical disability, and therefore is not ratable IAW DoDI 1332.38. The Board determined that there was no performance based evidence from the record that any MH 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 determination of unfit for any 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 chronic mid back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended MH condition (adjustment disorder), 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 recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION VASRD CODE RATING
Chronic Mid Back Pain Condition 5237 10%
Adjustment Disorder with Anxiety Not Unfit
COMBINED 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130718, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record

                 
XXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SFMR-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 , AR20140008191 (PD201301034)

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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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