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AF | PDBR | CY2014 | PD-2014-00674
Original file (PD-2014-00674.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2014-00674
BRANCH OF SERVICE: NAVY  BOARD DATE: 20150108
SEPARATION DATE: 20070522


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Hospital Corpsman) medically separated for chronic low back pain (LBP). The condition could not be adequately rehabilitated to meet the physical requirements of her rating or satisfy physical fitness standards. She was placed on limited duty and referred for a Medical Evaluation Board (MEB). The condition, characterized as “lumbago” and “degeneration of intervertebral disc, site unspecified,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The MEB also identified and forwarded two other conditions (obesity and depression) for PEB adjudication. The Informal PEB adjudicated lumbago; degeneration of intervertebral disc, site unspecified; obesity, depressive disorder and major depressive disorder (MDD) as fit to continue active duty. However, a Reconsideration PEB was convened that adjudicated chronic LBP as unfitting, rated 10% with application of the VA Schedule for Rating Disabilities (VASRD). The lumbago; pain disorder associated with intervertebral disc degeneration and lumbago; degenerative disease; and intervertebral disc degeneration conditions were determined to be C ategory II (contributing to the unfit condition ). The obesity; avoidance and dependent traits; esophageal reflux; acne; and MDD conditions were determined to be C ategory III (not separately unfitting and do not contribute to the unfitting condition). The CI made no appeals and was medically separated.


CI CONTENTION: The CI attached a two page statement to her application which was reviewed by the Board and considered in its recommendations.


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. The rating for the unfitting back condition and contended Category II and III mental health conditions and contended Category III reflux condition are addressed below. The Category III obesity and acne conditions were not contended and therefore not within the Boards purview. The CI also contended insomnia, cardio and migraine conditions, but these were not identified by the MEB, PEB and therefore not within the Boards purview. Those, and any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records.


 RATING COMPARISON :

Service Recon IPEB – Dated 20070221
 VA* - (1 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5299-5003 10% Lumbosacral Spine Strain… 5237 10% 20070613
Lumbago Category II
Degenerative Disease Category II
Intervertebral Disc Degeneration Category II
Pain Disorder associated with Intervertebral Disc Degeneration and Lumbago Category II
Major Depressive Disorder 9434 10% 20070613
Avoidance and Dependent Traits Category III
Major Depressive Disorder Category III
Esophageal Reflux Category III GERD 7399-7346 0% 20070613
Other x 2 (Not in Scope)
 Other x 2
Rating: 10%
 Combined: 30%
*Derived from VA Rating Decision (VARD) dated 20071009 (most proximate to date of separation (DOS))


ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests a higher rating should have been granted on the medical conditions documented at the time of separation. 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.

Chronic Low Back Pain Condition. The narrative summary (NARSUM), supported by the service treatment record (STR), noted that the CI had ongoing LBP for over 2 years. Imaging (magnetic resonance imaging) 7 months prior to separation showed four mild to moderate lumbar disc extrusions with no high-grade neural foraminal stenosis (narrowing of the bony canal that could cause pressure on the nerves or spinal cord). She was determined not to be a surgical candidate, failed conservative therapy (including narcotics, chiropractic care and epidural steroids), had been on limited duty for over 6 months, and was thought to have limited potential to return to full duty. At the MEB exam 6 months prior to separation, the CI had paresthesias on the bilateral thighs and normal strength of the extremities. At the NARSUM exam (Addendum to Report of Medical Board) 6 months prior to separation, the CI complained of swelling on both sides of her lumbar area, but the examiner noted no edema (or tenderness) in those areas, and the consistency was consistent with subcutaneous fatty tissue. She had no sensory or motor abnormalities and strength was normal (5/5). At a NARSUM addendum exam 5 months prior to separation, the CI normal strength of the extremities, intact sensation to touch, and intact gait. She had forward lumbar flexion of 75 degrees (normal 90) and combined range-of-motion (ROM) of 225 degrees (normal 240).

At the VA Compensation and Pension (C&P) exam performed a month after separation, the CI reported pain, numbness, and tingling on the lateral side of both knees that occasionally radiated to the feet. The CI was able to function with her usual occupation, but she missed approximately 20 days of work over the past 12 months because of her back pain, but no flare of her pain lasted more than 24 hours and she denied any incapacitating episode of back pain that required physician-prescribed bed rest. On examination, her gait was normal, sensory exam was intact, and no focal weakness was noted.
Forward lumbosacral flexion was 90 degrees (normal 90) which went to 80 after 3 repetitions, and combined ROM was 230 degrees (normal 240), and 220 after 3 repetitions.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition with analogous code 5299-5003 (arthritis, degenerative) at 10%. The VA rated the condition with code 5237 (lumbosacral strain) at 10%, citing the combined ROM. On a remote decision, 3 years after separation, the VA continued the rating at 10%. Although the PEB and VA used different codes, both codes are rated under the general rating formula for diseases and injuries of the spine, based on limitation of thoracolumbar ROM. The Board found that both examinations above led to a 10% rating based on lumbar forward flexion and combined ROM. The Board did not see any evidence of more limited ROMs, abnormal spinal contour, abnormal gait, incapacitating episodes (physician prescribed bed rest), or other evidence that would support a higher rating. The Category II conditions (conditions that contribute to the unfitting condition but are not separately ratable) of lumbago (LBP), pain disorder associated with intervertebral disc degeneration and lumbago, degenerative disease, and interverterbral disc degeneration all are variations of the LBP diagnosis and do not represent separate conditions and are therefore not ratable (§4.14 avoidance of pyramiding). 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 back condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that these conditions were not unfitting. The Board’s threshold for countering fitness determinations is preponderance of evidence, which 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.

Esophageal Reflux Condition. The NARSUM noted that the CI was on medication (Omeprazole) daily for her gastroesophageal reflux, and that she currently had no gastrointestinal symptoms. The VA exam noted that the CI had been on Omeprazole for 2 years, that her typical symptoms were chest pain and/or burning sensation, and that it affected her only if she did not take her medication. On examination, her abdomen was soft and non-tender without masses or enlarged organs. This condition was not mentioned in her limited duty report or the non-medical assessment (NMA) summary; it was not mentioned by the MEB and was found to be not unfitting by the PEB. 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 esophageal reflux condition and so no additional disability rating is recommended.

Mental Health Condition. In the psychiatric NARSUM examination, written 4 months prior to separation, the CI noted her first depressive episode upon first joining the Navy (June 2002), which she attributed to being alone and living away from home. She had some mild occupational dysfunction and was prescribed an antidepressant medication (Prozac) by her primary care provider with good results. She apparently did well until about 2 months prior to MEB when she reported experiencing increased depressive symptoms coinciding with the news that she would require a PEB. She had work impairment that was reported as being irritable and “short” with coworkers at times, avoidance of numerous administrative tasks, procrastination, and inability to complete projects. She also complained of displeasure of her weight gain and loss of libido associated with the Prozac, so her medication was changed (to Effexor); she already noticed some improvement by the time of her NARSUM. The examiner stated, “Until recently, the patient had been taking Prozac 20 mg daily and had been functioning well.” The only positive finding on mental status examination (MSE) was mood that was “sad and unmotivated.”
The diagnosis was MDD, recurrent, mild; the Global Assessment of Functioning (GAF) was 65 (“Some mild symptoms”); the degree of industrial and military impairment was moderate; and the degree of civilian performance impairment was mild. The limited duty reports did not mention this condition. In the NMA, 3 months prior to separation, the commander stated that the CI had been an outstanding corpsman and sailor, but her performance had declined in the last year due to her physical illness and pain. “Due to the nature of her condition, she has been limited to tasks which do not require lifting, prolonged standing or sitting, or any activity which will cause undue stress on her medical condition.”

In the VA psychiatric C&P exam a month after separation, the CI was not currently receiving ongoing (psychiatric) care. She worked at a hospital as a medical assistant for the previous month or so, and “There have been no difficulties thus far.” The CI described difficulty with sleep, primarily secondary to winding down, occasionally using a medication (Ambien) to help her fall asleep. Her overall mood tended to be rather irritable; she was easily upset and frustrated with others; and she denied all symptoms of anxiety, including panic attacks. Two months previously she took a knife and tried to slit her wrists, “but did not get very far” and did not report it. On the MSE, the CI was generally polite and cooperative, her affect was restricted, and her mood was rather discouraged. The GAF was 60 (moderate symptoms). The examiner concluded that the CI’s thought processes and communication were not impaired, she was employable from a psychiatric standpoint without limitation, her functioning was only mildly impaired, and that the mental disorder signs and symptoms were mild and might decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.

On a remote VA exam 3 years after separation, the CI was given a provisional diagnosis of bipolar disorder, but review of the STR indicated no evidence of this condition while the CI was on active duty. There were no periods of limited duty for MDD and the condition was not implicated in the commander’s statement. Although the psychiatric NARSUM described the CI’s “sad an unmotivated” mood, it also noted unremarkable thought content, good insight, unimpaired judgment, and grossly intact memory and cognition in the MSE. The VA exam detailed unimpaired thought processes and communication, and employability without limitation. The Board concluded that there was no performance based evidence from the record that the MDD significantly interfered with satisfactory duty performance at the time of separation from service. 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 MDD and so 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 chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication for the unfitting back condition. In the matter of the contended esophageal reflux and mental health 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 re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140202, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record






XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review
MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
 (b) CORB ltr dtd 18 May 15

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC



                           XXXXXXXXXXXXXXX
                          Assistant General Counsel
                           (Manpower & Reserve Affairs)
                                                     

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