RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: AIR FORCE CASE NUMBER: PD1200416 SEPARATION DATE: 20050318 BOARD DATE: 20121204 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-5 (2W071/Munitions Systems Craftsman), medically separated for chronic low back pain (LBP). The CI stated that he injured his back from a fall down a flight of stairs in January 2004. Despite narcotic medications, non steroidal anti inflammatory drugs (NSAIDS), neurosurgery consults, physical therapy (PT) and a transcutaneous electrical nerve stimulation (TENS) units. The CI failed to meet the physical requirements of his Air Force Specialty (AFS) or satisfy physical fitness standards. The CI was issued a permanent P4U4L4 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded right knee degenerative joint disease(DJD), painful hydrocele, hyperlipidemia, irritable bowel syndrome (IBS), periodic limb movements, mild obstructive sleep apnea (OSA), major depressive disorder (MDD) with anger management issues, benign thyroid nodules, history of right knee arthroscopy for medical issues, history of hypertrigliceridemia, resolved to the Physical Evaluation Board(PEB). The PEB adjudicated the chronic LBP condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD) and Department of Defense Instructions (DoDI). The PEB also adjudicated DJD Right knee, status post (s/p) arthroscopy surgery, post surgical hypothyroidism, IBS, and mild OSA associated with periodic limb movements as Category II (“Conditions that can be unfit, but not compensable or ratable”) and hyperlipidemia Category III (“Conditions that are not separately unfit, compensable or ratable”). The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “I believe the original rating of 10 % was too low. The Air Force has stated, according to AF form 356 OCT 95, that the only condition that was rateable (sic) was the lower back issues. They did not rate the Degenerative Joint Disease of right knee, and spinal injuries to my neck for which I still have the MRI copies). When I was discharged, I was lead believe that I was evaluated for my neck and lower back degenerative disk disease, but according to the AF 356 the neck injuries are not even listed. Both of the spinal injuries contributed to the inability to run which is why they said I was unfit to continue in the AF. I believe if one federal agency (VA) states 60% disability the other should be close to that rating.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The not unfitting right knee condition as requested for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview and is addressed below, in addition to a review of the rating for the unfitting chronic LBP condition. The neck condition is not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Air Force Board for Correction of Military Records. RATING COMPARISON: Service IPEB – Dated 20050203 VA (2 Wks. Pre-Separation) – All Effective Date 20050319 Condition Code Rating Condition Code Rating Exam Chronic LBP 5243 10% Diffused Disc Herniation T-Spine 5243 10% 20050301 Right Knee DJD S/P Arthroscopy Category II S/P Right Knee Surgery 5299- 5259 0% 20050301 Hypothyroidism S/P Surgery Category II Hypothyroidism 7903 10% 20050301 IBS Category II IBS 7319 0% 20050301 Mild OSA with Limb Movements Category II OSA 6847 30% 20050301 Hyperlipidemia Category III No Corresponding VA Entry 20050301 .No Additional MEB/PEB Entries. Cervical Strain 5237 10% 20050301 CTS, Lt Wrist 8515 10% 20050301 CTS, Rt Wrist 8515 10% 20050301 0% X 4 (Includes Above) / Not Service- Connected x 3 20050301 Combined: 10% Combined: 60%* *Original VARD 20050407 granted combined rating @30%. Charted conditions / ratings based on VARD 20060919 after De Novo Review by DRO. ANALYSIS SUMMARY: The Board acknowledges the CI's contention suggesting that ratings should have been conferred for other conditions documented at the time of separation, some of which were evaluated and determined not to be individually unfitting for continued service. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should his degree of impairment vary over time. The Board notes the current DVA ratings listed by the CI for all of his service- connected conditions, but must emphasize that its recommendations are premised on severity at the time of separation. The DVA ratings which it considers in that regard are those rendered most proximate to separation. The 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. The Board is empowered to evaluate the fairness of fitness determinations, and to make recommendations for rating of conditions which it concludes would have independently prevented the performance of required duties (at the time of separation). The Board’s threshold for countering MDES 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. Chronic LBP Condition. There were two range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. Thoracolumbar ROM MEB ~4.5 Mo. Pre-Sep VA C&P ~ 17 Days Pre- Sep Flexion (90° Normal) “Limited” 90° Ext (0-30) “Limited” 30°* R Lat Flex (0-30) “Mild Pain” 30° L Lat Flex 0-30) “Mild Pain” 30° R Rotation (0-30) Not Noted 30° L Rotation (0-30) Not Noted 30° Combined (240°) unk 240° Comment: MRI diffuse disc bulge, moderate neuro foraminal narrowing, mild central canal narrowing L4-5/early facet osteoarthritis L4-S1 Limited ROM due to pain; tenderness to palpation (TTP); gait nml “states cannot do heel walking due to poor balance”; motor/sensory intact *Pain significant but not limiting ROM; Gait nml; no assistive device needed; * with DeLuca applied §4.71a Rating 10% 10% The CI had lumbar spine pain with TTP from L1-to S1 and left lower extremity straight leg pain which caused radiation through the left buttocks and thigh. A magnetic resonance imaging (MRI) exam performed in April 2004 demonstrated diffuse disc bulge with moderate neuro foraminal narrowing at L4-5 and early facet osteoarthritis at L4-S1. The Neurosurgery examination indicated negative exam findings and the examiner opined that there was no surgical intervention warranted. The MEB examination 4.5 months prior to separation noted a response failure to intravenous narcotics (IV Morphine) and a narcotic patch (Fentanyl); occasional paresthesias in the lower extremities and pain with any bending or any jarring movement; and pain with movement during the night. The MEB exam findings are summarized in the chart above. The commander’s statement indicated that the CI could not bend at the waist and consistently lift fifty pounds. The VA Compensation & Pension(C&P) examination 17 days prior to separation noted functioning with the use of medication, sharp daily non-radiating pain, no periods of incapacitation; however there was a functional impairment of an inability to do any significant bending or lifting. The VA C&P exam findings are in the chart above. The Board directs attention to its rating recommendation based on the above evidence. The PEB and the VA chose the same disability code 5243 (Intervertebral disc syndrome) and both rated at 10%. The VA initially rated the LBP condition 0%; however the September 2006 VARD Decision Review Officer (DRO) De Novo decision increased the disability rating to 10% with additional application of DeLuca criteria. The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with or without 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 evidence of fixed neurologic deficit impacting duty performance. All exams proximate to separation met the 10% rating criteria for “localized tenderness not resulting in abnormal gait or abnormal spinal contour”, or for painful motion IAW VASRD §4.59. 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 chronic LBP condition. Contended PEB Conditions. The contended condition adjudicated as not unfitting by the PEB was right knee DJD, s/p arthroscopy surgery. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. 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. The CI injured his right knee by twisting the knee as he was getting up from a lying to standing position approximately 7 years prior to separation and underwent a partial medial menisectomy at that time. Worsening symptoms led to a MRI documenting chondromalacia and indeterminate finding of a medial meniscus tear or scar. The MEB examination was prior to surgery and noted chronic right knee pain associated with popping and cracking. The physical exam findings are in the chart below (MEB exam before surgery) and the examiner indicated an orthopedic consult was pending. The CI subsequently underwent a second arthroscopic surgery with medial meniscus trimming and debridement prior to separation. Operative reports and follow on notes indicated an acute meniscal tear. The commander’s statement was post- surgery and indicated that the CI missed a substantial amount of duty due to surgeries and recuperation time and could not lift fifty pounds consistently. Right Knee ROM MEB ~4.5 Mo. Pre- Sep* VA C&P 17 days Pre- Sep Flexion (140° Normal) Not Recorded 140° Extension (0° Normal) Not Recorded 0° Comment: Surgery 5 Mo. Pre- Sep *Positive crepitus on patellar grind; mildly atrophied medial compartment Crepitus throughout ROM; no pain on motion §4.71a Rating 10% (PEB Category II) 10% (VA 0%) *MEB exam was prior to repeat surgery (although NARSUM post-dated surgery date). Surgery noted in NARSUM Addendum without knee exam. The C&P exam 17 days prior to separation noted a diagnosis of DJD right knee; a functional impairment of inability to perform functions that required bending the knee and a loss of twenty days of work due to the right knee pain. The C&P physical exam findings are noted in the chart above. The Board deliberated if the right knee condition was unfitting given the chronic knee pain and continued accomplishment of AFSC duties. The CI’s unfitting LBP condition and the knee pain may have exacerbated each other. Offsetting this was a significant worsening of symptoms and an additional knee surgery. However, it appeared that the knee condition exacerbation occurred during the MEB processing. Right knee surgery was noted in the NARSUM addendum, without a detailed exam of the knee, and the VA exam was post-surgery and pre-separation. Although there was some reasonable doubt, the evidence that the right knee was not unfitting upon entry into the MEB process and that the knee exam improved following surgery during the DES process, the preponderance of the evidence was that there was only temporary duty impairment with expected improvement following surgery. 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 right knee 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. In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended right knee condition, the Board unanimously recommends no change 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 separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Chronic LBP 5243 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120509, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxx, DAF President Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxx, AR20130006257 (PD201201416) 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 xxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)