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AF | PDBR | CY2013 | PD2013 01140

Original file (PD2013 01140.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX CASE: PD1301140
BRANCH OF SERVICE: Army BOARD DATE: 20140415

SEPARATION DATE: 20081127

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SSG/E-6 (21B30/Combat Engineer) medically separated for a low back pain (LBP) condition. The condition was treated with conservative measures, but could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The LBP condition, characterized as “bulging lumbar disc,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded three other conditions (see rating chart below), listed as medically acceptable, for PEB adjudication. The PEB adjudicated “lumbar degenerative disc disease (DDD)” as unfitting, rated 10%, citing criteria of the VA Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting . The CI appealed to the Formal PEB, and a reconsideration PEB convened to consider his written submission, but rendered the same disability rating for the condition. The CI concurred, submitting no further appeals and was medically separated.

CI CONTENTION: “My military career was great and had no medical issues prior to my deployment. During deployment my physical abilities were damaged which forced my military career to come to an end and not allow me to continue toward retirement as I wanted. Along with me not being physically able to continue, my mental being also changed for the worse. My life has been nothing but doctor visits to the VA along with daily medications since 2006. It has been a total strain on myself and my family. My rating should be changed because my life has totally reflected it. I was not allowed to continue and it is not my fault. Please review my case and take into consideration what my family and I have gone through. SSG 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. The rating for the unfitting low back condition is addressed below. Based upon the contention above, the not unfitting posttraumatic stress disorder (PTSD) is within the scope of this Board and is also addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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. The Board also acknowledges the impairment with which the CI’s service-connected condition continues to burden him but must emphasize that 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, operating under a different set of laws.

RATING COMPARISON :

Service Recon PEB – Dated 200	VA - (2 Days Pre-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Lumbar DDD	5299-5242	10%	Degenerative Disc Disease L4-L5	5243	20%	20081125
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea	6847	50%	20081205
Chronic PTSD		PTSD	9411	NSC	20090102
Chronic Alcohol Abuse		Alcohol Abuse	9499-9410	NSC
No Additional MEB/PEB Entries	Other x 4	20081205
Combined: 10%	Combined: 70%

Derived from VA Rating Decision (VA RD ) dated 200 91228 .

ANALYSIS SUMMARY:

Chronic Low Back Pain. The CI’s LBP symptoms were intermittent in nature and he did not seek medical treatment until returning home from a deployment in 2006. An orthopedic examination in April 2006 revealed he also had pain extending from his back down to the level of his right knee. Radiology tests revealed an L5-S1 disc protrusion without “spinal cord or nerve compression.” His motor and sensory examination was normal. The diagnosis was discogenic LBP with right leg radiculopathy. Nerve conduction studies were normal and surgery was not indicated. His mainstay of treatment continued to be physical therapy (PT) which intermittently was successful in achieving complete pain control. Multiple service treatment record (STR) entries documented the presence of back spasms, but not to the degree of producing an abnormal gait or spinal contour. There was limited painful motion. There were no periods of incapacitation. At the MEB narrative summary (NARSUM) examination, performed 5 months prior to separation, the CI endorsed “tolerable back pain (with medication use), unless exacerbated by activity.” The examination was limited and revealed tenderness and guarding. There were no spasms present. Leg strength, reflexes and sensation were normal. At the VA Compensation and Pension (C&P) examination performed 2 days prior to separation, the CI reported chronic LBP for 12-16 hours per day with occasional pain radiating down to both knees. Pain was increased with activity such as bending as well as prolonged sitting, standing or walking. He endorsed back pain flare-ups once or twice a month each lasting up to 4 days. The examination revealed a slow, but normal gait. Range-of-motion (ROM) was limited with pain and was without decrement on repetitive testing. The neurologic examination was normal. There was no tenderness or back spasms present. His diagnosis was DDD of L4-L5. The examiner noted, “Regarding functional statement, [the CI] is independent in his activities of daily living (ADLs).” 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.

DOS 20081127

Thoracolumbar ROM (Degrees)	MEB ~9 Mo. Pre-Sep (20080215)	VA C&P ~2 days Pre-Sep (20081125)
Flexion (90 Normal)	90	45
Extension (30)	30	25
R Lat Flexion (30)	30	20
L Lat Flexion (30)	20	20
R Rotation (30)	30	25
L Rotation (30)	2 5	25
Combined (240)	22 5	160
Comment	painful motion guarding (not sig degree)	painful motion
§4.71a Rating	10%	20%

The Board directs attention to its rating recommendation based on the above evidence. Although the service and VA titled the unfitting back condition differently, they both used similar codes of 5242 (degenerative arthritis of the spine) at 10% and 5243 (intervertebral disc disease) at 20%, citing the combined ROM by the PEB and limited ROM by the VA. Board members agreed that sufficient evidence of painful motion was present to justify the 10% rating IAW §4.59 and only the VA examination alone showed a 20% compensable limitation of motion. Board members acknowledged that the temporal relationship of the VA examination clearly represents the CI’s condition near the time of separation; however, there is a significant disparity in ROM measurements between the MEB and VA examinations with implications for the Board's rating recommendation. The Board deliberated the probative value of these conflicting ROM evaluations and carefully reviewed all available records for corroborating evidence from the period preceding separation. There is no record of recurrent injury or other development to explain the more marked impairment reflected by the VA measurements. The poorer ROM values based on subjective pain responses as recorded by the VA examiner are not consistent with the objective absence of back spasms or tenderness which was documented in the same examination. Therefore, based on the absence of examination findings just elaborated, members agreed that the preponderant ROM probative value should be assigned to the MEB evaluation. Board members also considered application of §4.40 (functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled,” and clearly, the persistence of painful motion was such the case in this condition. There are no available alternative or analogous coding options which are applicable and or more advantageous to the CI. Therefore, members agreed that §4.59 or §4.40 was supported by the evidence to achieve the minimum compensable rating of 10%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded there was insufficient cause to recommend a change in the PEB adjudication for the LBP condition.

Contended Psychiatric Condition. The CI was deployed during 2005. His initial Behavioral Health intake report of April 2006 noted a traumatic exposure history of “one of his soldiers was killed” in a camp bombing; this was not witnessed by the CI. He endorsed significant sleep problems, increased irritability without anger outbursts, decreased interest, and discomfort being around people. There were no intrusive thoughts or depression. His Global Assessment of Functioning (GAF) was 64, indicating “mild” impairment. His Axis I diagnosis was primary insomnia. The next recorded psychotherapy encounter was 3 months later in July 2006 where he subjectively reported “witnessed 17 death exposures” and the diagnosis was changed to anxiety disorder, not otherwise specified (NOS) and PTSD [deferred pending further evidence]. The CI’s brief description of his deployed events is excerpted below.

“The event of experiences in Iraq has changed my life terribly. Witnessing death and bomb explosions have caused depression. Soldiers being blown-up, constant incoming fire to my patrols and base.”

In late July 2006, the examiner noted that “the [CI] was being vague in his reporting” and that psychophysiologic testing results did not support a diagnosis of PTSD. He received extensive psychotherapy from July 2006 to December 2007 with the persistent diagnoses of anxiety disorder and primary insomnia with the majority of subjective complaints surrounding sleep concerns and social relationship with a girlfriend. During this period, his GAF ranged from 62 to 75 (March 2007) and back to 62 (December 2007), connoting “moderate” impairment to “mild/transient” impairment and back to “moderate.” The medical board psychology evaluation, conducted by a mental health (MH) counselor on 8 January 2008 (10 months prior to separation) diagnosed the CI with chronic PTSD and depression based upon valid scores of various “screening tests.” The CI endorsed depression, irritability with angry outbursts, social withdrawal, insomnia, difficulty concentrating, decreased energy, decreased appetite, decreased interest, excessive worry and inability to relax. He stated symptoms had been present since his 2005 deployment after coming “under fire a number of times and witnessed explosions and people killed.” He experienced occasional distressing memories of the events and distress in reaction to reminders of combat. He takes considerable effort to avoid thinking about the events and to avoid things that might trigger thoughts about them. He endorsed frequent disturbing nightmares related to same. He reported hypervigilance, heightened startle response, social detachment and emotional numbing. His examination revealed a mood that was depressed, anxious and irritable with an appropriate affect. His concentration, immediate memory, energy level, pleasure level, and appetite were decreased. Delusions, disorientation, confusion or perceptual disturbances were not present. The recommendation was to continue outpatient (psychology) treatment. The disposition was to refer to psychiatry only “if needed.”

The psychiatric NARSUM addendums dated 29 April and 21 May 2008 (28 months after deployment, 6 months prior to separation and 5 months after the report cited above) indicated the CI’s MH condition severity level was currently “clinically stable.”

“Although he meets diagnostic criteria for PTSD…the severity of his condition does not appear to warrant MEB. Typically such soldiers are retained in the Army and seen for continued treatment. His increased level of distress is likely compounded by depression and alcohol abuse.”

Although the DD Form 2808 dated 18 June 2008 indicated the diagnoses of PTSD, insomnia, and anxiety disorder “by history” and an S3 under the P-U-L-H-E-S classification system, the clinical evaluation had “normal” marked off under psychiatry. A 12 May 2008 STR note documented “Discussion with [the psychiatrist] indicates [the CI] should not have an S3 profile. Profile changed this date. (12 May 2008).” The prior permanent profile of 2 October 2006 listing anxiety and insomnia (S3) was changed to a non-MH S1 profile on 12 May 2008. The commander’s letter was written in December 2007 prior to this change and referenced both the CI’s MH and non-MH conditions as restricting him from performing his duties.

At the VA psychiatric C&P evaluation on 2 January 2009 (a month after separation), the CI detailed his deployment experience as having not participated in direct combat, nor was he ever wounded or injured. He reported three separate issues as stressful; being away from home; witnessing wounded soldiers with missing body parts and trying to make one day at a time in Iraq; and recovery efforts involving wounded and dead soldiers where he, himself “was soaked in blood.” He endorsed nightmares, waking up in cold sweats once or twice a month, as well as poor memory, concentration and attention span. He denied having flashbacks other than occasional nightmares. He expressed general frustration in regard to his “unemployed” and social situation, and various challenges with the healthcare system. He denied suicidal or homicidal ideation. Feelings of helplessness or hopelessness were not reported. The examination revealed limited insight and a mood described as “It’s all right.” All other objective MH parameters were intact or normal. Although reporting some PTSD-like symptoms, the criteria level was not met for the diagnosis. His Axis I diagnosis was adjustment disorder with depressed and anxious mood; citing a GAF of 60; connoting “moderate” impairment. The examiner noted that the CI “…did not show any functional limitations that would prevent him from holding an employment.”

The Board directs attention to its rating recommendation based on the evidence just described.

The PEB found the chronic PTSD as not unfitting and the VA originally assigned a 30% rating analogously coded 9499-9434 (major depressive disorder), claimed as adjustment disorder with depression and anxious mood, citing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily). The Board first considered whether the MH condition, regardless of specific diagnosis, was unfitting for continued military service. The Board’s main charge with respect to the MH condition is an assessment of the fairness of the PEB’s determination that it was not unfitting. The Board’s threshold for countering service 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. An established principle for fitness determinations is that they are performance based and, in this case all members agreed that evidence of the record reflected minimal symptoms and reasonably good duty performance (as related to mental functioning) in the period of time leading into the MEB. The Board noted that the few STRs prior to the MEB examination that referenced or mentioned PTSD were in the context of the CI’s provided history and not actually diagnosed by a healthcare provider. The adverse finding of an altered mood with limited decrement in memory and concentration on the MEB does not indicate an MH diagnosis in and of itself and it appeared that the chronic PTSD diagnosis was based upon highly scored “screening checklists” for a variety of MH parameters. Overwhelmingly, the STR reflected the psychiatric diagnosis of anxiety disorder (NOS), whereby the majority of associated symptoms were related to significant sleep disturbances and social relational problems. Despite the diagnosis, the limited symptomatology did not appear to have interfered significantly with duty or with subsequent occupational functioning and thus the chronic PTSD was found by the psychiatrist to be not unfitting. After due deliberation and having reviewed the entirety of the record, the Board concluded that the PEB’s determination that the MH condition of PTSD was not unfitting near the time of separation and not subject to disability rating was correct.

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 lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended MH condition, the Board unanimously recommends no change from the PEB determination 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.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130821, 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 , AR20140019172 (PD201301140)

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 of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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