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AF | PDBR | CY2013 | PD2013 01693
Original file (PD2013 01693.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1301693
BRANCH OF SERVICE: Army          BOARD DATE: 20140430
SEPARATION DATE: 20051219


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (13B/Field Artillery) medically separated for a back condition. He experienced low back pain (LBP) in 2004 while deployed to Iraq and received a L5-S1 fusion in 2005. Despite narcotic pain relievers and physical therapy his 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/H3 profile and referred for a Medical Evaluation Board (MEB). Lumbar fusion with residual back pain was forwarded to the Physical Evaluation Board (PEB) as not meeting medical standards IAW AR 40-501. The MEB forwarded three other conditions as medically acceptable. The Informal PEB adjudicated chronic LBP status post L5-S1 fusion condition as unfitting, rated 10%; with application of VA Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI initially appealed, but withdrew his appeal and was medically separated.


CI CONTENTION: “Residuals lumbar spine injury postoperative”


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 20051012
 VA - (3.3 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back…Fusion 5241 10% Residuals, Lumbar Spine Injury… 5237 20% 20060317
Other x 3 (Not in Scope)
 Other x 0 20060317
Combined: 10%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 60615 (most proximate to date of separation ( DOS ) )





ANALYSIS SUMMARY:

Chronic LBP Status-Post L5-S1 Fusion Condition. The CI first suffered LBP in December 2003. Painful symptoms were intermittent until March 2004 when he experienced an acute, severe exacerbation during heavy lifting while deployed and required medical evacuation. After an L5-S1 fusion surgery on 7 January 2005, his back pain improved, but he still experienced pain with prolonged sitting, standing or walking. At the narrative summary examination on 27 July 2005, (4 months prior to separation and 6 months after surgery) the CI reported LBP despite treatment with narcotic pain medication and transcutaneous electrical nerve stimulation. Range-of-motion (ROM) was limited by pain, as reflected in the table below. At the VA Compensation and Pension exam on 17 March 2006, (3 months after separation), the CI reported using a low back brace for walking long distances. Examination showed a normal gait and mild lumbar flattening, but muscle spasm and guarding were absent. There was no additional limitation of motion with repetition. 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)
 MEB 4.5 Mo. Pre-Sep VA C&P 3.3 Mo. Post- Sep
Flexion (90 Normal)
 55 45
Extension (30)
 15 10
R Lat Flexion (30)
 20 30
L Lat Flexion (30)
 20 20
R Rotation (30)
 25 20
L Rotation (30)
 25 20
Combined (240)
 160 14 5
Comment
 +painful motion +p ainful motion, tenderness
§4.71a Rating
 20% ( PEB 10 % ) 20% (VA 20%)

The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under the 5241 code (spinal fusion), while the VA rated the condition at 20% under the 5237 code (lumbosacral strain). The Board agreed that both of the examinations reported lumbar flexion that justified a 20% rating (i.e. forward flexion greater than 30 degrees but not greater than 60 degrees). Under the general spine formula, criteria for a 40% rating were not present. The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet a minimal rating under that formula. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic LBP condition.


Contended Mental Health Condition. As previously elaborated, it is presumed that the CI has elected review by the PDBR for a MH condition. On a post-deployment health assessment in September 2004 the CI indicated that he saw wounded, killed or dead people during deployment, and that he felt in great danger of being killed. He endorsed nightmares, feeling detached, avoidance and hyper-startle. He did not intend to seek care for MH issues. A record review shows that on the MEB (DD Form 2807) on 27 July 2005, the CI checked “No” for “nervous trouble of any sort,” and “depression or excessive worry.” He also denied ever receiving counseling or any evaluation or treatment for a MH condition. Careful review of the entire service treatment record found no MH diagnosis in evidence. The Board determined therefore that no MH diagnoses were changed or eliminated in the disability evaluation process, and thus this applicant did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The Board next considered whether any mental symptoms, regardless of the presence of a diagnosis, were unfitting for continued military service. The Board’s first charge with respect to these conditions is an assessment of fitness based on a preponderance of evidence. All Board members agreed that the preponderance of evidence of the record reflected non-limiting symptoms (as related to mental functioning) in the period of time leading into the MEB. At no time during the applicant’s military service did he require a psychiatric hospitalization or emergency care. The commander’s statement implicated only physical limitations as an impediment to duty performance. No MH condition was profiled or was judged to fail retention standards by the MEB. There was no indication that a MH problem limited his ability to perform his job. The Board concluded therefore that there was insufficient cause to recommend the addition of a MH condition as unfit for rating at the time of separation.


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 LBP status post L5-S1 fusion condition, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a. In the matter of any contended MH condition, the Board unanimously recommends no 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 Status-Post L5-S1 Fusion 5241 20%
COMBINED
 20%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131693, 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, AR20140013860 (PD201301693)


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 20% 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)

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