RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD1201972
BRANCH OF SERVICE: AIR FORCE	BOARD DATE:  20130905
SEPARATION DATE:  20070319

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty TSGT/E-6(4N071, Aerospace Medical Service Craftsman) medically separated for a back condition.  The CI was first seen for back pain in 1998 when she reported an 18-month history of back pain.  The back could not be adequately rehabilitated to meet the physical requirements of her Air Force Specialty or satisfy physical fitness standards.  She was issued a temporary L4 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as lower back pain (LBP), was forwarded to the Physical Evaluation Board (PEB) IAW AFI 41-210 by the MEB.  No other conditions were submitted by the MEB.  The PEB adjudicated LBP due to degenerative disc disease (DDD) status post (s/p) microdiscectomy L4-5 as unfitting rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB also adjudicated tobacco abuse as a Category III condition, one that is not separately unfitting and is not compensable or ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes: “I was found unfit but only given 10% rating for my back problems.  When I submitted the same package to the VA for disability, they gave me 40%.  Same rating scale was used.  Percentage given at time of Medical Evaluation Board does not correlate with medical problem/degree of injury.  When medical board was deciding to separate me, I had a back surgery scheduled.  They refused to wait for the outcome before deciding my fate.  They allowed me to get my surgery while still active duty, but not factor that into their decision at all.”

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; and no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20070126	VA - (2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP DUE TO DDD S/P MICRODISCECTOMY L4-5	5243	10%	IVDS W/DEGENERATIVE ARTHRITIC CHANGES, L-SPINE	5243	40%	20070530	
			RADICULOPATHY, LLE, ASSOCIATED W/IVDS	8520	10%	20070530	
TOBACCO ABUSE	Category III	No VA Entry				
No Additional MEB/PEB Entries	Other x 7	20070530	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20080111 (most proximate to date of separation [DOS]).
ANALYSIS SUMMARY:

Low Back Pain.  The CI had longstanding LBP dating back to 1998, 7 years after enlistment and almost 8 years prior to separation.  She was initially treated conservatively with success, but her pain progressed and she underwent a left L4-5 microdiscectomy in November 2003.  She then enjoyed 6 months of pain relief before her symptoms recurred.  A magnetic resonance imaging (MRI) performed on 28 November 2005 showed a 7mm recurrent left L4-5 protrusion with lateral recess stenosis, but without central canal narrowing.  She was treated with duty restriction, physical therapy, medial branch blocks, epidural steroid injections and a neurostabilizer drug with only partial relief.  A repeat MRI on 8 September 2006 showed persistent DDD.  She was prescribed a Duragesic (fentanyl–an opioid) patch by pain management; this provided significant benefit.  She was noted to have hyperesthesia on the left L5 distribution and slight reduced strength at 5-/5 of the left extensor hallucis longus.  Her flexion was normal at 90 degrees, but reduced in other planes secondary to pain.  There was tenderness bilaterally at the sacroiliac notches.  Her examination was otherwise normal including deep tendon reflexes.  During a follow-up a month later, her range-of-motion (ROM) was improved to 90% of normal in all planes.  Her physical examination was noted as unchanged.  She was seen again on 8 November 2006 by neurosurgery and noted to have a normal station and gait, but markedly restricted voluntary flexion.  Her neurological examination was normal.  She was advised to have a posterior interbody fusion.  She was then seen the next day in pain management where she reported good results from the Duragesic patch.  She had tenderness of the left lumbosacral region and left sciatic notch.  The physical examination was noted as unchanged.  Flexion was limited to 60 degrees.  She was then seen on 4 December 2006 by a different neurosurgeon for a second opinion about the surgery.  She reported that 80% of her pain was on the left and 20% centered with almost none on the right.  She was noted to have flexion reduced to 75% of normal (90 x .75 = 67.5) and a calculated 153 degree combined ROM.  Her gait and heel to toe walk were normal.  Sensation was diminished in the L5 distribution on the left.  Motor loss was present on the left at 4/5 in muscles innervated by L5, the affected nerve root on MRI.  Ankle reflexes were diminished bilaterally.  The Board noted the inconsistencies in this examination from the prior pain management examinations and the neurosurgical examination a month earlier.  The action officer opined that this can be explained by a variable degree of impingement on the nerve root by the herniated disc.  The CI was advised that fusion might be required in the future, but elected to undergo micro-decompression.  This was accomplished in February 2007.  

The narrative summary (NARSUM) was dictated on 6 November 2006, prior to the final neurosurgery note in evidence (above) and before the micro-decompression.  It noted that all conservative options had been exhausted and that surgery was likely.  On examination, the CI was noted to have limited lumbar ROM (not specified), a decreased patellar reflex on the left (normal on other examinations and not entirely consistent with the underlying pathology as it tests nerves L2, 3, 4), and decreased strength in the left leg, not further specified.  On 6 December 2006, the commander noted that the CI could perform the vast majority of her duties in-garrison with the lifting restriction of 25 pounds.  Retention was recommended.  The CI underwent a second microdiscectomy a month prior to separation, apparently by the same surgeon who rendered the second opinion and in the civilian sector.  These records were not available for review.  However, the Board determined that the case could be adjudicated without them.  At the VA Compensation and Pension (C&P) exam performed on 30 May 2007, 2 months after separation and 3 months after surgery, the CI reported an inability to perform any bending, impact activities, prolonged standing, sitting or lying.  She also reported radiation of pain down her left leg.  On examination, she was still tender and had “tightness” at the incision site consistent with incomplete healing, an expected finding given the recent surgery.  Her posture was normal, but gait was antalgic and she wore a back brace.  There was no muscle spasm and pain radiation was also absent.  Provocative testing for nerve root irritation was negative bilaterally.  She was noted to have an L4 sensory deficit as well noting a sciatic nerve irritation.  The reflexes and strength were normal.  There was no incontinence.  ROM was reduced in all planes and limited to 15 degrees flexion and 70 degrees combined.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the back condition as 5243, intervertebral disc syndrome and rated it at 10% using the pre-operative examination.  The VA based its rating decision in part on the 30 May 2007 C&P examination which was performed 3 months after the surgery and within the recovery period.  The VA also coded the condition 5243, but rated it at 40% due to limited flexion at 15 degrees.  There are no additional examinations available for review until a 16 December 2010 pre-operative examination for the previously recommended fusion, over 3 years after separation.  This examination noted “moderate restriction to voluntary bending at the hips,” but that she did office work and had a normal gait.  There was persistent diminishment of sensation over the dorsum of the left foot and weakness of the left extensor hallucis and ankle dorsi-flexors.  It also noted that she had improvement in her numbness after the surgery, but then had progressive worsening of her back and left sciatic pain.  The Board considered the probative value of the C&P examination.  The Board noted that while the C&P examination was more proximate than either the December 2006 neurosurgical evaluation or the NARSUM examination, it was performed in the post-operative period and the reduced ROM could be explained by the ongoing pain attendant in the healing process.  While a surgical outcome could not be guaranteed, the expectation was that the individual would recover to at least the same level of function as existed pre-operatively, and typically better than before the procedure.  The pre-operative note in 2010 indicates that she did have some improvement in symptoms after surgery and had a normal gait.  Therefore, the Board concluded that the C&P examination demonstrated a greater level of disability than was present after an adequate recovery period from the surgery.  The Board also considered if a 20% disability rating could be supported.  It noted that the CI had an antalgic gait, but no spasm.  In addition, the scar was tender and still healing.  The Board again noted the normal gait when examined 3 years after separation and determined that the antalgic gait was a temporary finding after surgery.  The Board majority opined that the 20% rating could not be supported without resorting to speculation.  Accordingly, a majority of the Board determined that more likely than not, after an adequate period of rehabilitation the permanent disability would not be any worse than documented prior to the surgery at the December 2006 neurosurgical evaluation, and it was assigned the highest probative value.  Using this examination, the CI demonstrated a loss of flexion and combined motion that meets the criteria for a 10% rating.  The Board did note the lumbar fusion in 2010.  It was determined that this represented natural progression of the disease and it was noted that the CI had been recommended to have this surgery in 2006 by the first neurosurgeon and advised by the second, who did the microdiscectomy in 2007, that she might still need the fusion at a later date.

The Board then considered the attendant scar and radiculopathy conditions also rated by the VA.  There is no evidence in the record that the scar interfered with the wear of military clothing or equipment.  Therefore, there is no basis for an unfitting determination.  The radiculopathy findings were not consistent from examiner to examiner.  Regardless, the commander noted that the CI was able to meet in-garrison duty requirements other than a lifting restriction for which a work around had been instituted.  Moreover, the commander recommended retention.  The evidence does not support the addition of the radiculopathy as an additionally unfitting condition.  As neither condition was independently unfitting, the Board concluded that neither condition could be recommended for an additional disability rating.

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 LBP condition and IAW VASRD §4.71a, the Board by a vote of 2:1, recommends no change in the PEB adjudication.  The single voter for dissent (who recommended a 20% disability rating) did not elect to submit a minority opinion.  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	
Low Back Pain Due to Degenerative Disc Disease Status Post Microdiscectomy	5243	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120903, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX, DAF
President
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-2012-01972.

	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,

XXXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings