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AF | PDBR | CY2013 | PD2013 01713
Original file (PD2013 01713.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX          CASE : PD13 0 1713
BRANCH OF SERVICE: Army   BOARD DATE: 201 4 0611
Separation Date: 20041022


SUMMARY OF CASE : The evidence of record indicates this covered individual (CI) was an active duty SSG/E-6 (31B/Military Police) medically separated for a low back condition. Despite treatment the back condition 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 back condition, characterized as “low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501, with no other conditions submitted by the MEB. The PEB adjudicated “chronic low back pain (LBP) status post (s/p) L5/S1 fusion” as unfitting, rated 10%, citing criteria of the VA Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION : “I don’t feel that the 10% rating in which I was awarded upon exiting the military was fair for my condition. There were other conditions that should have been held in account that was not reviewed that I feel that would have made me unfit for service. I am currently being treated for those condition that steadily keep getting worse. I currently have cronick [sic] back problems that will never get better.”


 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. In addition, the CI was notified by the Army that his case may eligible for review of the military disability evaluation of any mental health (MH) condition in accordance with the Secretary of Defense directive for a comprehensive review of cases referred to a disability evaluation process between 11 September 2001 and 30 April 2012 in which MH diagnoses were changed or eliminated during that process. Since the CI responded to this mailing, it is presumed that he elected review of a MH condition though he did not specifically contend for it on the DD Form 294. In accordance with the Secretary of Defense directive, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of unfitting MH diagnoses in accordance with the VASRD §4.129 and §4.130. The CI is also eligible for review of other conditions evaluated by the PEB and has elected review by the PDBR. The rating for the unfitting low back condition and any MH conditions are 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 consideration by the Board for Correction of Military Records.


 RATING COMPARISON :
Service PEB – Dated 20040914
 VA - (~13 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic LBP, S/P L5/S1 Fusion… 5241 10% Lumbosacral Spine Strain 5241 20% 20051202
Left Lower Extremity Sciatica 8599-8520 10%
Right Lower Extremity Sciatica 8599-8520 10%
No Additional MEB/PEB Entries
 Other x 1
Combined: 10%
 Combined: 40%
Derived from VA Rating Decision (VARD) dated 20060301


ANALYSIS SUMMARY : The Board acknowledges the CI’s information regarding the significant impairment with which his various conditions burden him, but must emphasize the Disability Evaluation System (DES) has neither the role nor authority to compensate for later severity or complications of conditions that resulted in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. Post-separation evidence is probative to the Board’s recommendations only to the extent it reasonably reflects the disability at the time of separation. The Board acknowledges the CI’s contention for ratings of his conditions, but also emphasizes that service disability compensation may only be offered for conditions that cut short the member’s career. Should the Board judge that a condition was most likely incompatible with the specific duty requirements, a disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.

Chronic LBP, S/P L5/S1 Fusion Condition . The CI gradually developed a traumatic LBP in 2001 without any associated symptoms of leg pain, weakness, numbness or incontinence. He was seen by a civilian o rthopedist who noted that an X -ray demonstrated a pars defect (stress fracture or congenital vertebral body defect) at L5 and very minimal spondylolisthesis (movement of a vertebral body out of its normal alignment) at the same level. Based on his symptoms and X - ray confirmation, a spinal fusion was advised. The CI underwent a lumbar fusion at L5 - S1 with a bone graft harvesting from the right hip on 12 December 2002 . The CI was followed by p hysical t herapy ( PT) for strengthening. In 2003, the o rthopedist noted a normal range-of-motion ( ROM ) . The p rimary c are physician noted that the CI complained of back pain with decreased ROM with flexion to 60 degrees, tenderness to palpation over the scar on the lumbar spine and a positive test for sacroiliac joint p ain . The m edical provider diagnosed chronic LBP secondary to surgery , ordered medication and issued a P3 Profile. In May , 2004 , the provider noted radicular symptoms that radiated down the left leg; however , no examination was done at th at visit. A civilian p ain m anagement specialist noted th e radicular pain with no loss of strength or sensation. The physical exam is summarized on the chart below . A magnetic resonance imaging study performed 4 months prior to separation demonstrated mild L4- L 5 degenerative disc disease. The CI was given a permanent L3 p rofile for chronic LBP. The MEB n arrative s ummary (NARSUM) exam approximately 2 months prior to separation documented chronic back pain and functional limitations of an inability to wear body armor or a weapon belt ; he was unable to run, perform sit-ups or lift greater than 20 pounds. The CI was also unable to flex or extend his back and was unable to stand for a prolonged period of time. The pertinent physical exam findings are summarized in the chart below . The VA Compensation and Pen sion (C&P) exam approximately 13.5 months after separation documented intermittent severe LBP aggravated by weather changes, overexertion, walking ( especia lly uphill ) , bending, twisting, stress and fatigue. The physical exam findings are summarized in the chart below .

There were two ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the following chart :


Thoracolumbar ROM (Degrees)
 Pain Clinic ~5 Mo s . Pre-Sep MEB ~ 2 Mo s . Pre-Sep VA C&P ~ 13.5 Mo s . Post-Sep
Flexion (90 Normal)
 “ Normal ” 80 70
Combined (240)
 240 190 165
Comment
 Normal g ait; Neg. Straight leg raise (SLR) bilaterally; Normal strength, sensory & reflexes Normal g ait , strength & reflexes; non-tender to palpation ; Neg. SLR Pos. painful motion; Normal gait & sensory; equal reflexes; slight decreased left great toe extension; Pos. muscle spasm; Pos. decreased motion with repetitive testing
§4.71a Rating
 0% 10% 20%
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Contended Mild Depression Condition. The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military DES and determined that no MH diagnosis was changed to the applicant's possible disadvantage. This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project. The Board’s charge with respect to the MH condition referred for review that was determined to be not unfitting by the PEB is an assessment of the appropriateness of the PEB’s fitness adjudication. The Board’s threshold for countering PEB not-unfit determinations requires a preponderance of evidence. On the MEB History and Physical exam DD Form 2807-1 the CI checked yes to depression or excessive worry and then noted that he had been treated for minor depression. The examiner noted that the CI had been treated for minor depression , tried various m edications during his back surgery problem and no longer required treat ment . The MEB NARSUM exam noted in the “All Other Conditions” section - m ild d epression; however , there was no discussion of a depression condition with in the NARSUM. This condition was not profiled and was not implicated by the c ommander’s s tatement. Th is condition was not judged to fail retention standards . The evidence was reviewed by the a ction o fficer and considered by the Board. There was no indication from the record that this 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 change in the PEB fitness determination for the mild d epression condition ; therefore, no additional disabili ty 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 LBP s / p L5- S1 f usion condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended mild depression condition , the Board unanimously recommends no ch ange 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 separ ation determination.


The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 131021 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record








                          
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review
invalid font number 31502


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 , AR20140019331 (PD201301713)

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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