RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2012-01311
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20140124
SEPARATION DATE:  20031202

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E-6(2W171, Aircraft Armament Team Chief) medically separated for a back condition.  The CI had a 3-year history of back pain starting in August 2000 after moving a heavy object.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty or satisfy physical fitness standards.  He was issued a temporary P4 profile and referred for a Medical Evaluation Board (MEB).  The CI met an MEB twice.  The first was for gastro-esophageal reflux disease (GERD), status post (s/p) laparoscopic nissen fundoplication (a procedure to restrict the flow of stomach contents into the esophagus) for which he was returned to duty.  The second only identified his chronic low back pain (LBP).  The back condition, characterized as “chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) in accordance with (IAW) AFI 48-123.  The PEB adjudicated “chronic low back pain s/p endoscopic annuloplasty for L4-L5 herniated nucleus pulposus” as unfitting rated at 10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The PEB also adjudicated GERD as a Category II condition, one that can be unfitting but is not currently compensable or ratable. The CI made no appeals, and was medically separated.

CI CONTENTION: The CI writes: “Back is worse and getting worse all the time.”

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 is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The not unfitting GERD condition was not contented; and there, not within the Board’s purview.  This, 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 Military Records.

RATING COMPARISON:

Service PEB – Dated 20030923 | VA* – Records Not Available
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Low Back Pain | 5295 | 10% | Lumbar Disc Disease, s/p Discography | 5243 | 10%** |
GERD | Category II | GERD | 7346 | 0% |
No Additional MEB/PEB Entries | Other x 5 |
Combined:  10% | Combined:  40%
* Derived from VA Rating Decision (VARD) dated 20070731, information from VA indicated the original VARD not available
** Spine rating increased to 20% from VARD dated 20101018 based on C&P 20100917 effective 20100811 (date of claim)

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System (DES) has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veteran Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

CHRONIC LOW BACK PAIN. The CI first presented with LBP on 14 August 2000 after lifting a heavy object.  He was managed conservatively over the next few months, but had persistent pain.  A magnetic resonance image (MRI) on 15 September 2000 was remarkable only for mild lumbar spondylosis (degenerative spine disease, a common finding with age).  He was apparently able to return to full activity until he had recurrent back pain in September 2002.  He was referred to orthopedics due to radiation of the pain down both legs.  He denied any specific trauma.  On examination, he had some limitation in the range-of-motion (ROM) of the back and paraspinal spasm.  The neurological examination was normal.  An MRI, performed a  week later on 1 November 2002, was positive for bulging discs at L3-4, L4-5 and L5-S1.  No frank herniation was noted and it was thought to be stable from the prior MRI 2 years earlier.  The CI continued to have LBP and right lower leg radiculopathy for which he had evocative discography on 6 January 2003.  The discogram was positive at L4-5 with reproduction of his LBP.  At surgery, that disc was found to be herniated and repaired (annuloplasty) with removal of the disc fragments.  At follow-up, he had full ROM and normal reflexes.  However, it was recommended that he no longer lift heavy objects.  Consequently, he was issued a profile restricting him from lifting over 10 pounds and referred for an MEB.  The narrative summary was undated, but noted that the CI was improving in his lower extremity power and had been discharged from physical therapy.  No examination was appended.

There was no VA Compensation and Pension (C&P) examination proximate to separation.  Attempts to obtain the initial VA rating decision were unsuccessful.  The 31 July 2007 VA rating decision referenced two examinations dated 22 November 2006 and 14 March 2007.  The history and physical findings from these examinations were not separated in the report.  However, the CI reported that he had quit two jobs due to continued pain, but was now able to work delivering pizzas.  He denied incapacitation.  He had incontinence twice while sleeping, but this reported to not be related to his back condition.  He was able to get on and off the examination table with ease, but got up and down from a sitting position slowly.  Spasm was absent.  No objective neurological or muscular abnormalities were observed.  Gait and contour were normal.  The ROM was reduced in extension and right lateral flexion, but otherwise normal.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back at 10%, but coded it 5295 (lumbosacral strain), and 5243, (intervertebral disc syndrome), respectively.  The VA continued the 10% rating on its review in 2007.  The Board noted that the PEB utilized an older code.  The CI entered the DES process under the old spine rules; however, the new spine rules were in effect at the time of separation and utilized by the Board in the adjudication.  The CI had normal ROM on the post-operative examination and had been released from physical therapy.  There is no evidence of a neurological deficit or incapacitation.  Although the ROM was reduced in subsequent VA examinations, this is still consistent with a 10% disability rating.  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 pain condition.
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.  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, as follows:

UNFITTING CONDITION | VASRD CODE | RATING
Chronic Low Back Pain | 5295 | 10%
COMBINED | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120722, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAF/MRB

XXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. §  1554a), PDBR Case Number PD-2012-01311

	After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

	I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

							Sincerely,

XXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings

PD-2012-01311