Author: JOHN J. D'ORAZIO
Last saved by: ADA, ROBERT P CIV USAF SAF/MRBD
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX               	                        	BRANCH OF SERVICE:  usaf
CASE NUMBER:  PD12-01412                                                           SEPARATION DATE:  20020903
BOARD DATE:  20130502

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty A1C/E-3 (3PO31, Security Apprentice), medically separated for chronic neck pain and chronic low back pain.  He was treated, but did not improve adequately to fully perform his military duties or meet physical fitness standards.  He was consequently issued a permanent profile and underwent a MEB.  The MEB found two conditions (Status post cervical and lumbar spinal surgery) medically unacceptable and referred him to an informal PEB (I-PEB, 8 May 2002), which adjudicated two Category I conditions “1) Chronic neck pain, status post cervical surgery, and 2) Chronic back pain, status post lumber surgery”. The PEB rated 10% for each condition, combined to 20%.  The CI did not concur with the findings of the PEB and demanded a formal PEB.  The MEB then requested to recall its original package because the CI had been diagnosed with diabetes in the interim.  A new MEB was convened which sent four diagnoses to a new I-PEB (15 Jul 2002); “1) Non-insulin dependent diabetes mellitus, 2) Seizure disorder, 3) Chronic neck pain; status post cervical surgery, and 4) Chronic low back pain; status post lumbar surgery”.  No other conditions were submitted by the MEB.  This PEB adjudicated two Category I conditions “1) Chronic neck pain, and 2) Chronic low back pain” as unfitting and rated 10% each, combined to 20%.  The PEB also adjudicated one Category II condition of “Diabetes mellitus Type II, associated with single seizure”.  The CI made no appeals and was medically separated with that 20% service disability rating.  The CI later appealed to the Air Force Board for Correction of Military Records (BCMR) for a permanent disability retirement which was denied on 15 Feb 2008.  

CI CONTENTION:  The application states “It should be changed because within 12 months of my discharge the VA rated my back condition as 60% disabling.  This is the same condition for which I was released from the military.”  On page 2 of the application the CI wrote in block 13 (continuation of block 4, evidence submitted in support of application) four conditions; 1) Diabetes Mellitus, 2) Scar, Abdomen, 3) Seizure Disorder, and 4) Status post diskectomy of cervical spine.  

SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in Department of Defense Instruction (Do DI) 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 Service ratings for the unfitting neck and back pain conditions are addressed below.  The Diabetes mellitus with seizure was not contended and was therefore outside the scope of review.  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 service Board for the Correction of Military Records.  

RATING COMPARISON:

Service PEB – Dated 20020715 | VA (9 Mo. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam*
Chronic low back pain | 5295 | 10% | Status post lumbar diskectomy for pseudoarthrosis and spondylolisthesis | 5292* | 40%* | 20030602
| | | Tender scar, abdomen (a/w Lumbar Surgery) | 7804 | 10% | 20030522
Chronic neck pain | 5290 | 10% | Cervical Spine, S/P Disckectomy | 5292 | 0% | 20030602
Diabetes mellitus Type II, a/w single seizure | Category II | Diabetes mellitus | 7913 | 20% | 20030522
| | Seizure disorder | 8999-8911 | 10% | 20030508
↓No Additional MEB/PEB Entries↓ | Other x 3 |
Combined:  20% | Combined:  60%*
Derived from VA Rating Decision (VARD) dated 20030717 (most proximate to date of separation [DOS])
* After Notice of Disagreement, VARD dated 20031106 changed the lumbar rating to 5243 at 60% (combined 70%) 

ANALYSIS SUMMARY:  The Board considered the BCMR determination and records of proceedings as part of the record.  The 2002 VASRD coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were updated 23 September 2002 for code 5293 (incapacitating episodes), and then changed to the current §4.71a rating standards on 26 September 2003.  The 2002 standards for rating based on range-of-motion (ROM) impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment.  VASRD normal ROM values were not in effect prior to 20030926, and are for the combined thoracolumbar spine segment, whereas the older spine criteria considered the thoracic and lumbar spine segments separately.  For the reader’s convenience, the 2002 rating codes under discussion in this case are excerpted below.  

5285 Vertebra, fracture of, residuals:
With cord involvement, bedridden, or requiring long leg braces........100
Consider special monthly compensation; with lesser involvements rate for limited motion, nerve paralysis.
Without cord involvement; abnormal mobility requiring neck brace (jury mast)....... 60
In other cases rate in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body.  
5290 Spine, limitation of motion of, cervical:
Severe.......................................................................................30
Moderate..................................................................................20
Slight.........................................................................................10
5292 Spine, limitation of motion of, lumbar: 
Severe.......................................................................................40
Moderate..................................................................................20
Slight.........................................................................................10
5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief....................................................... 60
Severe; recurring attacks, with intermittent relief......................... 40
Moderate; recurring attacks....................................................... 20
Mild......................................................................................... 10
Postoperative, cured.................................................................... 0
5295 Lumbosacral strain:
   Severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.......................................................................................40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position......................................................................................20
   With characteristic pain on motion..............................................10
   With slight subjective symptoms only............................................0

Chronic Low Back Pain Condition.  After initial indications of back pain in October 2000, the CI was treated with three surgeries, including fusion of L5-S1, medication and physical therapy.  Despite these courses of treatment, the condition persisted.  Neurosurgery noted on 14 May 2002 that the CI did not have sciatica, but had been having additional pain and had been walking with a cane.  The MRI of lumbar spine September 2001 revealed L5-S1 spondylolysis with grade I-II spondylolisthesis and severe L5-S1 foraminal narrowing.  Neurosurgery performed a procedure 26 September that improved his symptoms but not completely.  December 2001 he developed radiation to l. leg and increased low back pain.  Imaging showed fusion was not maturing and diagnosis of pseudoarthrosis was made.  Surgical revision occurred 9 February2002, resulting in improved condition but duty limitations and opioid pain medications.  The commander’s statement 14 January 2002 indicated the CI was unable to work in his primary position, was restricted to light duty/administrative duty, cannot lift over 5 lbs., and was restricted to a 4 hour duty day.  

At the 25 June 2002 MEB Exam the CI reported daily low back pain that seemed to be improving.  On exam, he had positive straight leg raise (SLR), forward flexion to 30⁰ with onset of pain, limited extension, and lateral flexion to 30⁰.  Gait and cerebellar function were normal, no muscle atrophy or weakness were noted.  He took Robaxin and MS-Contin (narcotic) medication for pain.  The MEB exam including range of motion (ROM) measurements is summarized in the chart below.  Two days after the MEB exam, the CI had a seizure and went to emergency room complaining of severe back pain after a seizure with shooting pain down left leg.  Exam showed no numbness or weakness of legs, but pain was worse with movement and ambulation.  Neurological exam was normal with non-ataxic gait.  

During the VA Compensation and Pension (C&P) general exam 22 May 2003 the CI reported main problem was low back.  He had chronic pain of the low back with radiation to both legs, left worse than the right for which he took pain medication.  The exam with ROMs is summarized in the chart below.  X-ray of lumbar spine 12 February 2003 demonstrated: pedicle screws at L4, L5, and S1 in proper alignment, dorsal column stimulator present.  

At the VA Compensation and Pension (C&P) spine exam 2 June 2003, 9 months post-separation) CI complained of pain in low back and both legs, mostly the left leg with flare-ups 2-3/week, many functional limitations, and totally incapacitating back pain April 2003 that persisted for several weeks. He does not work.  Exam showed he walks with limp of left leg, an abdominal and lumbar scars well healed, pain on palpation of lower lumbar paravertebral musculature bilaterally, and no gross deformity of lumbar curve.  SLR was 10⁰ on the left and 30⁰ on the right with back pain, no sensory or motor deficit in lower extremity, DTRs +1 in lower extremity, and can tandem toe and heel walk with difficulty.  Diagnostically there was no evidence of pseudoarthrosis of the fusion mass.  

The 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.  

Lumbar ROM
(In degrees)

MEB ~2 Mo. Pre-Sep
(20020625)

VA C&P ~8 ½ Mo. Post-Sep
(20030522)

VA C&P ~9 Mo. Post-Sep
(20030602)

Flexion | “Fwd flexion to 30⁰ with onset of pain” | 15 | 25 (of 50 normal)
Ext | “limited” | 0 | 0 (of 20)
R Lat Flex | 30 | 15 | 15 (of 30)
L Lat Flex | 30 | 10 | 15 (of 30)
R Rotation | - | - | -
L Rotation | - | - | -
Comment: Revision surgery ~7 Mo. Pre-Sep: Seizure 1.5 Mo. Pre-Sep | Normal gait; positive SLR at 15⁰ | Limps favoring right leg, slightly antalgic gait; L. DTR 2/3 infrapatellar and Achilles w/ 3/3 R. side; sl. atrophy of L. thigh and calf muscles; SLR to 15⁰ bilateral | SLR 10⁰ left/30⁰ right; No abnormal contour; difficult toe and heel walks; reflexes 1+ symetric
§4.71a Rating | 10%-40% (PEB 10%) | 40% (VA 40%-60%) | 40% (VA 40%-60%)

The Board carefully reviewed all evidentiary information available.  The VASRD coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were modified in September 2002, and then were changed again in September 2003.  The older standards were based on the rater’s opinion regarding degree of severity, whereas current standards specify certain rating thresholds, with measured degrees of ROM impairment.  IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation.  The PEB and VA chose different coding and rating options for the condition.  The PEB coded chronic low back pain 5295 (lumbosacral strain and pain on motion) and rated it 10% based on IAW DOD and VASRD guidelines.  The VA applied the 5243 code (intervertebral disc syndrome) and rated the condition at 60%, referencing the revised VASRD rating criteria.  The Board considered rating under 5295, 5292 (limited motion), and 5293 Intervertebral disc syndrome.  All three exams document significant limitations of forward flexion and extension, and the Board considered the back symptoms had worsened with back spasm and radicular symptoms after the MEB exam following a generalized seizure.  Two different examiners documented marked limitations of lateral motion bilaterally.  The Board adjudged that the limited motion was at the “moderate” 20% level and that back spasm with motion under the 5295 rating criteria would also warrant a 20% rating, with 5295 coding being predominate.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separation rating of 20% for the low back pain condition.  

Chronic Neck Pain:  On October 2000, the CI experienced the sudden onset of shooting pain in his neck and shoulders.  MRI of the cervical spine revealed herniation of C5-6 disc.  Neurosurgery performed several procedures and the CI recovered and returned to full duty 7 March 2001.  However, 6 months following surgery shooting pain of the neck and left arm occurred.  MRI of C-Spine showed post-surgical changes with moderate C5-6 with foraminal narrowing.  At the MEB exam of 25 June 2002 the CI reported no neck pain or cervical paresthesias.  Exam revealed full neck ROM without pain or paresthesias, but there was pain with forward flexion to 30⁰ and limited extension.  Findings are in cervical chart below.  

VA Compensation and Pension (C&P) exam 22 May 2003 revealed no left arm weakness and normal strength in left arm.  The CI had full ROM without pain or paresthesias.  

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 charts below.  

Cervical ROM 
(In degrees)

MEB ~2 Mo. Pre-Sep
(20020625)

VA C&P ~8 ½ Mo. Post-Sep
(20030522)

Flex (45 Normal)* | “neck full ROM without pain or paresthesia” | 45
Ext (0-45) | | 45
R Lat Flex (0-45) | | 45
L Lat Flex (0-45) | | 45
R Rotation (0-80) | | 45
L Rotation (0-80) | | 45
COMBINED (340) | | 270
Comment:  *Normal values are listed for VASRD 200309 | See text | “ROM entirely normal”: see text
§4.71a Rating | 0%-10% (PEB 10%) | 0%-10% (VA 0%)

The Board carefully reviewed all evidentiary information available.  The Board considered the VA examiner’s determination of “ROM entirely normal,” despite 45⁰ of rotation measurements, was fairly adjudged as normal; as the current VASRD normal ROMs were not applicable and normal limits were as determined by the examiner under the older VASRD.  Neither charted exam was compensable based on ROM limitations.  The Board looked at the record proximate to separation for either painful motion (§4.59) or radicular symptoms as the CI’s cervical pathology was consistent with intervertebral disc syndrome (5293).  The Board considered that radicular symptoms were clearly present following surgery, and can be intermittent.  Service records including the profile restrictions, underlying pathology, and treatment notes indicated the CI’s disability picture at the time of separation was closer to mild (10%) than “post-operative, cured” (0%) under the criteria of 5293.  Coding at 10% under 5293 was considered predominate and better supported than the PEB 10% coding under 5290 (limited motion).  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’s 10% adjudication of the chronic neck pain condition; however, the code should be modified to 5293.  

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 low back condition, the Board unanimously recommends a Service disability rating of 20%, coded 5295, IAW VASRD §4.71a.  In the matter of the chronic neck pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB’s 10% adjudication, but a modification to coding as 5293 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

UNFITTING CONDITION | VASRD CODE | RATING
Chronic Low Back Pain | 5295 | 20%
Chronic Neck Pain | 5293 | 10%
COMBINED | 30%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120606, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans Affairs Treatment Record.

	           XXXXXXXXXXXXXXXXXXXX
	           Physical Disability Board of Review

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews MD  20762

Dear XXXXXXXXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2012-01412.

	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 not appropriate under the guidelines of the Veterans Administration Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

	I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

	As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.  

							Sincerely,

XXXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings

cc:
SAF/MRBR
DFAS-IN

PD12-01412