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AF | PDBR | CY2013 | PD2013 02083

Original file (PD2013 02083.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX CASE: PD1302083
BRANCH OF SERVICE: Army BOARD DATE: 20140617

SEPARATION DATE: 20040611

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV2/E-2 (92F/Petroleum Supply Specialist) medically separated for chronic back pain. The CI entered active duty on 8 November 2001. He deployed to Iraq from March to August 2003. The CI’s back 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 profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded: neck pain, erectile dysfunction, and adjustment disorder with depression, all deemed medically acceptable. The PEB adjudicated “chronic subjective back pain without neurologic abnormality” as unfitting, rated 10% citing criteria of the VA Schedule for Rating Disabilities (VASRD). The remaining conditions were not adjudicated. The CI made no appeals and was medically separated.

CI CONTENTION: “I have an injury report after the rollover in Iraq stating that I did get whiplash of the neck and it needs to be reviewed.”

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 20040323	VA - (1 Mos. Post-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Chronic Subjective Back Pain, Without Neurologic Abnormality	5299-5237	10%	Lumbosacral Strain	5237	0%	20040707
Neck Pain	Not adjudicated	Neck Condition	5237	NSC	20040707
Adjustment Disorder with Depression	Not adjudicated	Posttraumatic Stress Disorder	9411	30%	20040707
Other x 1 (Not in Scope)	Other x 8	20040707
Combined: 10%	Combined: 50%

Derived from VA Rating Decision (VA RD ) dated 200 41120 ( most proximate to date of separation [ DOS ] ).

VARD 20101103 increased DC 9411 to 50% from 20100510; and increased DC 5237 to 10% from 20100510. VARD 20130507 increased DC 9411 to 70% from 20130104; and awarded DC 8045 (Cognitive Disorder Secondary to Traumatic Brain Injury) rated 40% from 20101203.

ANALYSIS SUMMARY:

Low Back Condition. The narrative summary (NARSUM) and treatment record noted onset of intermittent low back pain due to trauma during training (AIT). The CI had additional low back and neck trauma from a rollover accident during deployment to Iraq in 2003. He was hospitalized and had consultations to orthopedic surgery, neurosurgery and physical therapy. Magnetic resonance imaging (MRI) documented lumbar spine herniated disk and degenerative disease and he was not considered a surgical candidate. There was no motor or sensory radiculopathy noted. At the MEB exam, the CI reported daily lower back pain causing him to be depressed. He indicated feeling weakness on a daily basis. Medications included muscle relaxants and anti-inflammatories. The MEB physical exam noted normal sensory and motor exams. Provocative testing for radicular symptoms was negative. There was no spine tenderness and range-of-motion (ROM) using a goniometer documented forward flexion of 85 degrees (normal 90 degrees) and combined ROM of 225 degrees (normal 240 degrees).

At the VA Compensation and Pension (C&P) exam performed a month after separation, the CI reported achy burning mid lumbar back pain which was “worsened by lifting heavy objects or twisting or bending or stooping, is improved by non-steroidal (medication) and rest and lying down.” Exam demonstrated that “there was very minor tenderness to percussion over the lower lumbar area.” ROM was to at least VASRD normal limits in all planes (combined 240 degrees). The examiner stated “mild amount of discomfort was reported at the extreme of the arc in all of those planes.” Gait was normal and there were no spasms, abnormal spine contour or abnormal motor or sensory findings.

The Board directs attention to its rating recommendation based on the above evidence. Both the PEB and VA used disability code 5237 for lumbosacral strain and applied the general rating formula for diseases and injuries of the spine. There were no incapacitating episodes (physician prescribed bed rest) to provide any higher rating under the formula for rating intervertebral disc syndrome. The general spine ratings include symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. There was no indication of any unfitting peripheral nerve condition. The decreased ROM from the MEB exam meets the 10% rating criteria for either forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or for combined ROM greater than 120 degrees but not greater than 235 degrees. The VA exam which was closer to the date of separation would also warrant a 10% rating due to localized tenderness not resulting in abnormal gait or abnormal spinal contour, although no decreased ROM or painful motion was documented.

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 lower back condition. The Board concluded therefore that this condition could not be recommended for additional disability rating.

Contended PEB Conditions (Neck Pain and Adjustment Disorder With Depression). The Board’s main charge is to assess the fairness of the PEB’s implied determination that the neck pain condition and/or adjustment disorder with depression (or any MH condition) was not unfitting. The Board’s threshold for adding an unfit condition, or changing a not unfitting determination, 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.

Neck Condition. The neck condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards by the NARSUM examiner or the MEB. The neck condition was reviewed and considered by the Board. Profile was L3 with upper extremity profile of U1; wearing of helmet was not profile restricted. The commander’s statement noted duty impairment specifically to the chronic back problems and did not implicate any neck condition as duty limiting. There was no performance based evidence from the record that the neck 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’s implied fitness determination for the contended neck pain condition and so no additional disability rating is recommended.

Adjustment Disorder with Depression. The adjustment disorder with depression condition was not profiled and was not judged to fail retention standards by the NARSUM examiner (recommended S2 profile), the Behavioral Health memo or by the MEB. The commander’s statement dated 2 February 2002 stated “His physical condition has cause stress on him that is evident in his duty performance.” The 26 February 2004 psychiatrist’s memo indicated that the CI was seen in Behavioral Health Clinic that day and did “not have a boardable psychiatric condition. (The CI’s) emotional condition does not meet the qualifications according to DSM-IV for a significant psychiatric condition. (CI) is fit per AR 40-501 and is deployable. He reports depression in the mornings, occasional nightmares (combat related-Iraq) and easily angered. These symptoms do not cause significant impairment.” The CI had not had any other MH evaluation or treatment since his return from deployment, and was not taking any psychotropic medications. The diagnosis was adjustment disorder, with depression.

The VA C&P exam a month after separation diagnosed posttraumatic stress disorder (PTSD). Exam indicated mild symptoms that had included outbursts with his girlfriend that started after separation from the service. The CI was not employed, but indicated he felt that he could at least work part-time. The psychiatrist indicated overall “symptoms appeared to be fairly mild.” Occupational impairment and social impairment were estimated as mild. VA treatment notes, including emergency department assessment in November 2004, short-term intensive treatment program progress notes indicating a week in jail by December 2004 and a psychiatrist’s evaluation in February 2005 were assessed and indicated anxiety symptoms predominately related to relationship problems and adjusting to civilian life. Remote VA evaluation led to increased PTSD ratings of 50% effective May 2010 and then to 70% effective January 2013.

At the time of processing through the military DES, no change in diagnosis was made at any time. The SRP determined that the MH diagnoses were not changed to the applicant’s possible disadvantage in the disability evaluation. This applicant therefore did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

The Board considered that there was significant progression of MH symptoms post-separation with progression of MH diagnosis as well. There was not a preponderance of evidence to change the service’s adjustment disorder with depression diagnosis to PTSD or any other MH diagnosis. Adjustment disorder is not considered a condition constituting a physical disability IAW DoDI 1338.39, Enclosure 5 in effect at the time. There was not a preponderance of performance based evidence from the record that any MH conditions 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 that the diagnosis of adjustment disorder with depression be changed or that any MH condition be added as an unfitting condition. Therefore, no additional disability rating is 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 back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended neck pain and adjustment disorder with depression conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting (although adjustment disorder would be a condition not constituting a physical disability IAW DoDI 1332.38, Enclosure 5, in effect at the time). 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 20131006, 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 , AR20140019493 (PD201302083)

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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AF | PDBR | CY2013 | PD2013 02083

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