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AF | PDBR | CY2013 | PD2013 01157
Original file (PD2013 01157.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1301157
BRANCH OF SERVICE: Army  BOARD DATE: 20140612
SEPARATION DATE: 20081226


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (52C/Utility Equipment Repairer) medically separated for a lumbar spine condition. The non-surgical lumbar condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent L3/S1 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded acquired Lumbar L5, bilateral spondylolysis, acquired grade L5-S1 anterior spondylolisthesis, and bulging lumbar and thoracic intervertebral discs for Physical Evaluation Board (PEB) adjudication IAW AR 40-501. The MEB also identified and forwarded adjustment disorder as meeting retention standards. The Informal PEB consolidated the MEB submitted lumbar spine diagnoses as a single unfitting condition, rated 20%, citing criteria of the VA Schedule for Rating Disabilities (VASRD). The adjustment disorder was determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “Was never rated for depression and lower back pain. Still continues. Also dental condition exists from orthognathic surgery performed while enlisted.”


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.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continue to burden him; but, must emphasize that the Disability Evaluation System (DES) has neither the role nor the authority to compensate service 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 IPEB – Dated 20080612
 VA - (~7 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Back Pain… 5239 20% Mild DJD, Lumbar Spine 5010-5242 10% 20090714
Adjustment Disorder Not Unfitting Depression 9434 50% 20090717
Other x 1 (Not in Scope)
 Other x 2 20090714
Rating: 20%
 Combined Rating: 60%
VARD 20090817 (most proximate to Date of Separation)


ANALYSIS SUMMARY:

Thoracolumbar Spine Condition. The CI reported an acute onset of back pain with heavy lifting in March 2007, with a subsequent history of chronic intermittent back pain. Imaging demonstrated the findings elaborated in the MEB diagnostic submissions, which represent degenerative changes of spinal joints and mild disc disease (L4/5) without nerve root impingement. There were some sporadic bilateral radicular symptoms reported by the CI; but, there were no objective neurological findings and surgery was not recommended. There was a poor response to routine conservative measures and an adverse response to a steroid spinal injection. There were two entries in the service treatment record (STR) which documented grossly normal range-of-motion (ROM) and none which implicated significant ROM limitations, abnormal gait or spinal contour, or periods of physician directed quarters or bed rest. The narrative summary (NARSUM) noted “constant sharp, throbbing [back] pain with an underlying dull ache,” rated 4-9/10, associated with “weakness, numbness and paresthesias radiating from both of his feet to both lower extremities;” and, exacerbated by prolonged walking, standing, sitting, lifting and bending. The physical exam noted a normal gait without guarding, a mild abnormality of curvature (thoracic hyper kyphosis), spinal tenderness and spasm and normal neurological findings. The NARSUM ROM measurements were flexion 50 degrees (normal 90 degrees) and combined ROM of 160 degrees (normal 240 degrees). At the VA Compensation and Pension (C&P) evaluation (7 months post-separation) the examiner characterized the back pain as a “moderate” constant “dull cramping ache” without radiation, with “flare-ups every 2-3 weeks,” and exacerbated by prolonged walking or standing, sudden movement, bending or stooping. The VA physical exam noted a normal gait, the absence of tenderness, spasm or guarding and normal neurologic findings. The VA ROM measurements were flexion 80 degrees and combined 220 degrees.

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s 20% rating under 5239 (spondylolisthesis) was consistent with VASRD §4.71a criteria for both the flexion of 50 degrees and abnormal spinal curvature cited in the NARSUM. The VA 10% rating was consistent with the ROM and findings cited in the post-separation C&P exam, quite possibly reflecting interim improvement since separation. There are no §4.71a criteria for higher rating in evidence. The Board additionally considered if the radicular component in this case warranted an additional disability rating under peripheral nerve coding. Members agreed that the requisite link with functional impairment was not in evidence and there was no evidence for incapacitating episodes that would support a higher rating under that formula. 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 thoracolumbar spine condition.

Contended MH Condition. The CI had no pre-enlistment MH history or issues and did not deploy or engage in hazardous duty; thus, posttraumatic stress disorder is not under consideration in this case. The STR documents that in June 2007 the CI described insomnia for the preceding 14 months since basic training and, although he denied depression, he stated that he felt “under stress” and “down” approximately once per week. A periodic health assessment 5 months later contained a specific entry denying depression and no subsequent STR entries documented active MH complaints. The pharmacy profile notes that an antidepressant (Zoloft) was prescribed in July 2007 and Trazodone (for sleep) was added in January 2008. A diagnosis of depression appears on automated problem lists in the STR, but there is no MH entry in evidence which provides any formal Axis I diagnosis. The diagnostic summary on the MEB’s DD Form 2808, Report of Medical Examination, dated 7 April 2008 lists “depression;” adding “likely meets retention standards;” and, notes a referral to the Soldier Assistance Center (SAC). Although the SAC consultation is not in evidence, the 7 May 2008 NARSUM documents a SAC diagnosis of “adjustment disorder.” There is no STR evidence of suicidal ideation or attempts, serious disciplinary or legal issues, alcohol/substance abuse or psychiatric crisis/hospitalization. The profile was designated S1 throughout service. The commander’s performance statement implicated only the physical limitations from the spine condition as interfering with MOS requirements, made no reference to MH conditions or issues and documented intact abilities in the areas of cognition and interpersonal functioning. The VA psychiatric C&P (7 months post-separation) recorded an Axis I diagnosis of “adjustment disorder with depressed mood;” and, stated specifically, “Mental Disorder symptoms are not severe enough to interfere with occupational and social functioning.” The post-separation VA rating decision, referencing this C&P and VA outpatient records, arrived at a diagnosis of depression and conferred a 50% rating.

The Board directs attention to its recommendation based on the above evidence and, its first assessment with regard to the MH condition, under MH Review Project guidelines, is to judge (based on a preponderance of evidence) whether a diagnosis was changed to the disadvantage of the applicant during DES proceedings. Although there are references to a diagnosis of depression in evidence, including in DES documents, the only formal MH diagnosis before the PEB was adjustment disorder. This case does not meet the inclusion criteria in the Terms of Reference of the MH Review Project. Considering that adjustment disorder does not constitute a service ratable condition IAW Department of Defense Instruction (DoDI) 1332.38 (E5.1.3.9.4.), a guidance also applicable to Board proceedings, the Board deliberated a recommendation for a change in service diagnosis to depression. Members agreed that there was not a preponderance of evidence to support said recommendation. It was likewise agreed that even if a recommendation for a change in service MH diagnosis was conceded, there would be insufficient evidence for recommending it as unfitting and eligible for rating; noting that no psychiatric impairment was judged to fail retention standards, that the profile was S1, that the commander did not identify any MH limitations on performance, and that there is a lack of any performance-based evidence in the service record suggesting that such limitations existed. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in diagnosis or the PEB’s fitness determination for the MH condition.


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 in diagnosis or PEB fitness determination. 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 20130822, 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 , AR20140012262 (PD201301157)

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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