RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01251
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20140513
Separation Date:  20050906

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Guard Reserve (AGR) SSgt/E-5 (3E351/Civil Engineer Structural Journeyman) medically separated for a back condition.  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 L4 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic lower back pain (LBP) with right lower extremity radiculopathy,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The Informal PEB adjudicated “chronic low back pain secondary to L3-4 and L4-5 disc disease” as unfitting, rated 10% with application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes:  “When I was discharged my back condition had been getting worse & has continued to get worse since then. I have had numerous secondary conditions develope [sic] due to my injury, some caused by the medication to treat my service connected conditions.  I was awarded IU 100% P&T from the VA on 05/20/2013, with an effective date of 10/08/2010. I would like all my evidence submitted be reviewed according to Title 10, Section 1222 of the U.S. Code.  I would like the following conditions (listed in box 14) to be reviewed under 10 USC 1222a, and I expect all the issues to be addressed as part of your decision rationale, as required by law.  Also, I would like the following to be considered: I was wrongfully taken off orders before the "Final Disposition" of the PEB on 07/22/2005 & I have enclosed copies from The Department of the Air Force & AFBCMR stating that my military records were to be corrected.  Due to being wrongfully taken off orders on 04/15/2005 before the PEB finalized my claim, I was unable to file a disagreement with the PEB's finding of a 10% rating, I was later medically discharged on 09/06/2005.  My "C" file at the Department of Veteran Affairs contains all my medical evidence since my discharge.  I have provided copies of several MRI's, but there is others in my "C" file”.  Box 14 of the application listed the following conditions:  Adjustment Disorder with depressed mood; Migraines; Radiculopathy right lower extremity, nerve damage to right leg associated with L4-5 disc herniation post microdiscectomy with residuals; Cervical Strain with degenerative changes; Residuals, surgical scar; Gynecomastia (Pending); GERD (Pending); Splenic Flexure Syndrome (Pending); Lumbar Degenarative Disc Disease.

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, along with the contended right lower extremity radiculopathy is addressed below; no additional conditions (to include those listed in the CI’s contention paragraph above) 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 (BCMR).

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 has neither the role nor the authority to compensate 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 Veterans Affairs, 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.

The Board also acknowledges the CI’s assertions that his disability disposition did not include all of the conditions listed in the PDBR application.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system.

RATING COMPARISON:

Service IPEB – Dated 20050722 | VA - (12 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic LBP Secondary to L3-4 and L4-5 Disc Disease | 5243 | 10% | L4-5 Disc Herniations S/P Microdiscectomy w/Residuals | 5243 | 10% | 20060921
Other x 0 (Not in Scope) | Other x1 | 20060921
Combined:  10% | Combined:  20%
VARD dated 20070423 (most proximate to Date of Separation)

ANALYSIS SUMMARY:  The Board acknowledges that the commander’s statement and the MEB narrative summary (NARSUM) could not be located after the appropriate inquiries.

Chronic LBP Secondary to L3-4 and L4-5 Disc Disease Condition.  The CI initially strained his lower back when he was trying to pull a post out of the ground a few years prior.  X-ray’s performed in April 2004 were negative for sacroiliac joint sclerosis and a normal lumbar spine.  He reinjured his lower back when while directing traffic as a security police officer; fell down an 8 to 12 inch hole that was covered with grass.  He presented to the emergency room (ER) 2 days later with LBP, numbness and tingling in his lower extremities.  He was put on 24 hour limited duty (LIMDU) for the LBP.  A lumbar spine magnetic resonance imaging (MRI) demonstrated a large central disc protrusion at L3-4 and a large extruded disc on the right at L4-5.  The CI was evaluated in the ER for back pain 8/10- with 10 being the worst, numbness and tingling in his right leg and reported that his back had become progressively worse.  The CI was placed on Quarters for 72 hours due to his LBP symptoms.  The Quarters authorization was then changed to 48 hours only on 12 August 2004.  The neurosurgery consult documented constant LBP, right upper buttock and sole of foot without leg involvement, no true weakness; however, there was an occasional sharp leg pain which caused his leg to buckle.  The physical exam findings were normal power, normal sensation, preserved ankle reflexes, negative straight leg raises though full hip flexion and knee extension, increased discomfort in buttocks and low back and a minimally antalgic gait which favored the right side.  The CI was seen in neurosurgery follow-up and noted to have findings of reflexes 1+ on the patellar and left Achilles and absent reflex in right Achilles, marked right straight leg raise and 4+/5 weakness of a right foot extensor muscle.  The examiner diagnosed right L5 radiculopathy secondary to enlarged right L4-5 disc.  The CI underwent a minimally invasive right L4-5 back surgery on 16 December 2004.  The neurosurgeon noted that the CI fell down stairs after his surgery and reported reoccurring LBP; however, the motor and sensory exams were normal.  The civilian neurosurgeon noted that the CI reported a popping in his lower back, dull leg pain involving the right thigh, calf and foot.  The physical exam findings were diminished range-of-motion (ROM), no sciatic tension signs, good strength, no focal deficits, reflexes diminished in lowers, and a “popping in back.”  Flexion/extension X-rays showed a transitional segment at L5-S1 with a bat wing deformity with the transverse process on the right.  The CI was given a permanent L4 profile with specific restrictions related to the LBP condition.  A repeat lumbar spine MRI showed a mild acquired canal stenosis at L3-4 related to disc bulge and central disc extrusion.  The VA Compensation and Pension (C&P) exam approximately 12 months after separation documented continuous LBP with leg pain and he avoids lifting over 50 pounds.  The physical exam findings were full flexion, normal gait and minor decrease in ROM left/right lateral bending after repetitive motion.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the chronic LBP secondary to L3-4 and L4-5 disc disease condition as 5243 (intervertebral disc syndrome) and rated at 10% - with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  The VA coded the L4-5 disc herniation status post micro-discectomy w/residuals as 5243 and rated at 10%.  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.”  The MEB NARSUM exam is missing so the Board was unable to review the spine exam results.  The civilian ortho exam was proximate to separation; however, this exam only documented that the ROMs were diminished, there were no quantifiable measurements to review.  The C&P exam was 12 months remote from separation and there were goniometric ROM measurements obtained.  The C&P exam also documented that the CI had “…1 day of incapacitation relative to his spine in the past 12 months.”  Although that was 12 months after separation, the evidence documented that the CI was placed on a total of 5 days of LIMDU during the time period of 6 July 2004 to 12 August 2004.  The Board considered the criteria for “Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.”  The Board agreed that the CI met the 10% criteria for “with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.”  Additionally, the Board also recognized that the C&P ROM of 90 degrees was normal, but there was a decreased in ROM on repetitive testing which is also consistent with a 10% rating with consideration of DeLuca v. Brown (1995), the United States Court of Appeals for Veterans Claims ruled that the VA must separately consider any additional functional loss due to pain, flare-ups, deformity, tenderness, arthritis, loss of motion on repetitive use, weakened movement, excess fatigability or incoordination when rating disabilities.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no functional implications.  The motor impairment was either relatively minor or cannot be linked to significant physical impairment.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  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 secondary to L3-4 and L4-5 disc disease condition without the addition of a peripheral nerve condition IAW VASRD 4.124a.

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 secondary to L3-4 and L4-5 disc disease 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 re-characterization of the CI’s disability and separation determination, as follows:

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130906, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAF/MRB

Dear XXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2013-01251.

	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-2013-01251