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AF | PDBR | CY2013 | PD2013 02110
Original file (PD2013 02110.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1302110
BRANCH OF SERVICE: Army  BOARD DATE: 20140327
SEPARATION DATE: 20091116


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (44B/Metal Worker) medically separated for lumbar strain. Onset of back pain occurred while deployed to Iraq in 2006 without specific injury. He was treated with medications and epidural steroid injections without benefit. He also had chronic right knee pain which was determined to meet retention standards by orthopedics in May 2009. His also complained of sleep issues, which were considered to meet retention standards. The CI underwent a mental health (MH) evaluation in August 2009 and was diagnosed with a single episode of major depressive disorder (MDD). The psychiatrist stated the CI was psychiatrically fit for duty and met retention standards; and no profile was issued. The lumbar 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/S1 profile and referred for a Medical Evaluation Board (MEB). Chronic thoracic and lumbar spine pain, MDD, chronic pain of multiple joints (right knee, shoulder, wrist and ankle), hypertension, hyperlipidemia, gastroesophageal reflux disease (GERD), migraine headaches and chronic insomnia were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated the lumbosacral strain as unfitting, rated 10%, citi ng criteria from the VA Schedule for Rating Disabilities (VASRD). The remaining conditions were found not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “I feel that my PTSD was not correctly diagnosed during my MEB/PEB. The DR that was gathering my history for my PEB/MEB was the only DR on Ft Bliss at the time and she only had limited time with me. I was also separated pending a divorce and was away from my son, so waiting 6-9 more months to set up appointments with Mental Health was at the bottom of my list. Both of my knees are in constant pain. The only way I can sleep is with sleep medication and a CPAP for sleep apnea. My back is constantly hurting. The Army Dr. would not request an upright MRI so I had 2 of them done. I had multiple injections and nerve burns while awaiting MEB/PEB and still have them. I rely on pain medication to get through my normal daily activities.”


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 (BCMR).
The Board acknowledges the CI's contention that his MH condition should have been diagnosed as posttraumatic stress disorder (PTSD) and the assertion that his service disposition was rushed. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system. The Board also acknowledges the CI's information regarding the significant impairment with which his service-connected conditions continue to burden him. IAW DoDI 6040.44, the Board's authority is limited to making recommendations on correcting disability determinations. The Board's role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.


 RATING COMPARISON :

Service IPEB – Dated 20091022
 VA* - (4 days Pre-Separation & 1 month Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Lumbosacral Strain 5237 10% Mild Lumbosacral Disc Bulging w/mild Foraminal Stenosis 5295-5292 10% 20091112
Major Depressive Disorder Not Unfitting Post-Traumatic Stress Disorder 9411 30% 20101221
Chronic Multiple Joint Pain: Right Knee, Shoulder, Wrist and Ankle Not Unfitting Right Knee Residuals, S/P Resection of Bipartite Patella 5299-5262 10% 20091112
Scar, S/P Surgery, Right Knee 7804 10% 20091112
Right Shoulder Strain 5201 10% 20091112
Bursitis, Right Wrist 5019 NSC 20091112
Mild Right Ankle Osteoarthritis 5010-5271 10% 20091112
Hypertension Not Unfitting Hypertension 7101 0% 20091112
Hyperlipidemia Not Unfitting No VA Entry 20091112
GERD Not Unfitting Acid Reflux 7399-7346 0% 20091112
Migraine Headaches Not Unfitting Migraine Headaches w/ Aura 8100 0% 20091112
Chronic Insomnia Not Unfitting Sleep Apnea 6847 50% 20091112
No Additional MEB/PEB Entries
 Other x 13 20091112
Rating: 10%
 Combined: 90%
* Derived from VA Rating Decision (VARD) dated 20110428 (most proximate to date of separation (DOS))


ANALYSIS SUMMARY:

Lumbosacral Strain Condition. After being rated by the VA for low back pain (LBP) for a prior term of service, the CI returned to active duty in 2004. Review of the service treatment record noted a visit in December 2005 for mid to LBP present for 6 months; there was no history of trauma. In 2008 he presented with complaints of back pain ongoing since deployment to Iraq in 2006, attributed to wearing gear while on guard duty and jumping in and out of vehicles. X-rays were normal, but magnetic resonance imaging showed degenerative changes of the thoracic spine and disc bulge at L4-L5 and L5-S1 with mild to moderate neuroforaminal narrowing. Surgery was not indicated. The MEB separation examination on 5 May 2009 (6 months prior to separation) noted no back tenderness or muscle spasm. Gait was normal. An orthopedic examination on 14 May 2009 noted a normal gait and spinal contour. Lumbosacral tenderness and painful motion were present. Muscle spasm was absent. Spinal motion was “normal” and straight leg raise (SLR) testing did not suggest radiculopathy. The narrative summary (NARSUM) on 10 September 2009 (2 months prior to separation) reported worsening of pain with standing or sitting; he could not lift his child. Physical exam showed a straight spine without deformity. Tenderness was present; motion was painful during extension and flexion. SLR was negative bilaterally and muscle strength was normal.

At the VA Compensation and Pension (C&P) exam performed 4 days prior to separation, the CI reported ongoing pain that was not relieved by steroid injections. Exam showed no signs of radiculopathy and no additional loss of motion after repetitive motion. The goniometric range-of-motion (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 PT ~ 5 Mo. Pre-Sep VA C&P ~ 4 days Pre-Sep
Flexion (90 Normal) 65 * 90
Extension (30) 10 * 30
R Lat Flexion (30) 15 30
L Lat Flexion (30) 10 30
R Rotation (30) 45 (30) 45 (30)
L Rotation (30) 55 (30) 45 (30)
Combined (240) 160 240
Comment + Pain ful motion , g uarding; no spasm; normal gait; no abnormal spine contour +Painful motion; no spasm or abnormal spine contour; normal gait
§4.71a Rating 10% 10%**
invalid font number 31502         invalid font number 31502 *Denotes measurement after 3 repetitions; first flexion invalid font number 31502 was invalid font number 31502 90 invalid font number 31502 ⁰ invalid font number 31502 , first ex invalid font number 31502 tension was invalid font number 31502 20 invalid font number 31502 ⁰ invalid font number 31502
invalid font number 31502          invalid font number 31502 **Conceding painful motion invalid font number 31502

The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating for limitation of motion under the 5237 code (lumbosacral strain). The VA also rated the condition at 10%, but under an older VASRD spine code: 5295-5292 (lumbosacral strain, limitation of lumbar motion) carried over from a previous rating. Board members agreed that the service exam showed limitation of motion sufficient to justify a 10% rating. A 10% rating was also justified by the VA exam, but IAW §4.59 (Painful motion), since compensable limitation of motion was absent. It was agreed that there was no evidence of altered gait or abnormal spinal contour due to guarding or muscle spasm, thus the next higher 20% rating was not justified on this basis. The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet even the 10% criteria under that formula. Finally, the application of VASRD §4.45 was debated, which allows for a higher rating if evidence of additional functional loss is present. The Board considered that the MEB physical therapist documented additional limitation of motion after repetitive motion in the context of some guarding. However, the additional limitation supported 10%; and there was no mention of other causes of limitation, such as fatigue or loss of endurance. The VA examination meanwhile showed completely normal ROM and no additional limitation after repetition. The Board thus concluded that there was insufficient evidence to justify the next higher 20% rating on the basis of §4.45. 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 lumbosacral strain condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that MDD, right knee pain, and chronic insomnia were not unfitting. The Board’s threshold for countering 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.

Major Depressive Disorder: In December 2008 screening tests indicated the presence of MH symptoms. A primary care provider diagnosed PTSD and paced the CI on an antidepressant medication. The separation physical examiner on 4 May 2009 listed diagnoses of PTSD and depression; PTSD was also listed on the profiling portion of the DD Form 2808, and an S1 profile was assigned. The commander’s statement on 4 May 2009 stated: “PTSD does not impact his duty performance.” The MEB psychiatric evaluation performed on 12 August 2009 noted problems with anger, outbursts, insomnia, nightmares and sad mood after deploying to Iraq in 2006 – 2007. Nightmares were infrequent and didn’t cause him problems and he enjoyed recreational activities. The mental status exam was normal. The psychiatrist stated that symptoms consistent with a formal diagnosis of PTSD were denied, and a diagnosis of MDD (moderate, single episode) was rendered. A Global Assessment of Functioning was 75, connoting transient symptoms with no more than slight impairment. The examiner stated there was no impairment for military duty and assigned an S1 profile. The VA MH evaluation was performed in December 2010 (13 months after separation). It noted that following the service the CI took college courses and was employed. Work relationships were described as “good.” The examiner rendered diagnoses of PTSD and depression.

The SRP reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the Disability Evaluation System (DES). Because the separation physical examination listed a diagnosis of PTSD, but the MEB psychiatric evaluation, NARSUM, MEB and PEB listed MDD, the SRP concluded the MH diagnosis was changed in the disability evaluation process and therefore met the inclusion criteria in the Terms of Reference of the MH Review Project. The Board noted that prior to entry in the DES the CI was treated for PTSD. However, at the time of the MEB psychiatric evaluation, criteria for a PTSD diagnosis were not present; and the VA exam performed 13 months after separation held little probative value relevant to the time of separation. The Board therefore agreed with the MEB psychiatric evaluation’s conclusion that an Axis I diagnosis of MDD at the time of the MEB and PEB was correct. The diagnosis of PTSD was therefore appropriately changed.

The Board next considered whether the CI’s MH condition at the time of separation, regardless of diagnosis, was unfitting for continued military service. No MH condition was profiled, implicated in the commander’s statement or judged to fail retention standards. The MH condition was reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that it 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 major depressive disorder condition (or any contended MH condition) and so no additional disability rating is recommended.

Chronic Insomnia: The NARSUM, MEB and PEB did not clarify an etiology of insomnia. It is likely this problem resulted from obstructive sleep apnea (OSA), although a contribution from the MH condition was possible. The separation examiner stated that insomnia was present since 2007. The primary care provider who started the CI on an antidepressant in December 2008 considered that insomnia was likely secondary to the MH condition, and also prescribed a sleeping aid. Ongoing difficulty led to a sleep study in June 2009, which determined that OSA was present and that it responded to continuous positive airway pressure (CPAP). According to the NARSUM examiner, sleep problems were “well controlled.” The VA examiner on 12 November 2009 noted that the CI experienced improvement in snoring, daytime fatigue and insomnia since beginning CPAP.

Right Knee: The CI was given a VA rating for a right knee condition prior to his return to active duty in 2004. The condition was permanently profiled (L2) in June 2005. There were no subsequent clinical visits in evidence until April 2009 when he saw an orthopedist complaining of constant right knee pain exacerbated by kneeling, squatting or prolonged sitting. Except for some tenderness, examination was normal, including the absence of painful motion. The VA C&P examiner reported complaints of occasional pain, stiffness and numbness of the right knee. Occasional Motrin provided a “good response.”
The commander’s performance and functional statement on 4 May 2009 did not cite the insomnia or knee conditions as bases for recommending release from service. The L2 profile for the right knee directed the CI to run only at own pace and distance. A permanent profile for OSA on 5 August 2009 stipulated the use of CPAP nightly, and to avoid driving, operating heavy machinery or handling a weapon if unable to use CPAP for more than 48 hours. There was no evidence that either of these conditions were judged to fail retention standards. The PEB’s finding in the case of the OSA condition was consistent with contemporary PEBs across all of the services that no longer consider sleep apnea syndromes to be unfitting on the basis of impediments to the use of CPAP in the field. The PEB’s fitness adjudication was therefore expected and reasonable. Both conditions were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that either of the 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 a change in the PEB fitness determination for the any of the contended conditions and so no additional disability ratings are 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 lumbosacral strain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended MDD, chronic insomnia and right knee pain conditions, the Board unanimously recommends no change from the PEB determinations 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 20130923, 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 , AR20140012265 (PD201302110)

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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