RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01378
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20140326
SEPARATION DATE:  20040322

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve TSgt/E-6 (8B000/Training Instructor) medically separated for a degenerative disc disease (DDD) condition.  She had a history of lumbar pain since 1990, which was exacerbated in 2000.  The condition could not be adequately rehabilitated to meet the physical requirements of her Air Force Specialty or satisfy physical fitness standards.  She was issued limited restriction P2/L2 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “lumbar spondylosis” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The MEB also forwarded fibromyalgia (FM) and seasonal allergic rhinoconjunctivitis conditions as medically acceptable.  The Informal PEB adjudicated “degenerative disk disease associated with herniated nucleus pulposus L5-S1 with left radicular pain” as unfitting, rated 20%, citing the VA Schedule for Rating Disabilities (VASRD).  The PEB adjudicated FM and seasonal allergic rhinitis as Category II conditions (can be unfit, but not compensable/ratable).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Diagnostic code 5242 for disc disease was/is accompanied by scoliosis of 20% & required a pro-disc spinal implant in 2011 due to fusion & leg pain & numbness.  Fibromyalgia later added after 2004 discharge approved a developed from Golf War-but did not include an increase in VA Compensation though 20% compensable percentage was assigned, the % assigned by the V.A. was only 10% then combined w/`10% for fibromyalgia which had previously been denied for compensation.  Then compensation was considered at 20% as a combined rating.  Orthopedic MRI’s & x-rays will show scoliosis at 20 degrees even after pro-disc surgery to correct L5-S1 bone on bone, nerve impingement, numbness, gluteus muscle atrophy, nerve damage.  Nerve damage & muscle atrophy, leg pain remains & some range of motion limitations remain, in addition muscle spasms.”

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.  The fibromyalgia and seasonal allergic rhinitis conditions are also addressed below.  Any conditions outside the Board’s defined scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20040205 | VA - (Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
DDD Associated with Herniated Nucleus Pulposus L5-S 1 with left Radicular Pain | 5242 | 20% | DDD, Lumbosacral Spine | 5243 | 10% | 20040316
Fibromyalgia | 5025 | Cat II | Fibromyalgia | 5025 | 10% | 20040315
Seasonal Allergic Rhinitis | 6522 | Cat II | Chronic Sinusitis | 6512 | NSC
No Additional MEB/PEB Entries | Other x 15 | 20040316
Combined:  20% | Combined:  20%
Derived from VA Rating Decision (VARD) dated 20040420 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Low Back Pain (LBP).  The CI has a history of chronic LBP and left lower extremity (LLE) sciatic pain.  In 2001, magnetic resonance imaging showed marked L5-S1 DDD with small left paracentral herniated nucleus pulposus.  She was treated with multiple non-operative modalities including chiropractic manipulation.  The LBP was refractory to treatment and an MEB was initiated.  Her MEB physical exam (PE) was in November 2003.  Range-of-motion (ROM) tests revealed flexion 90 degrees, extension 15 degrees, rotation 45 degrees (bilateral) and lateral bending 45 degrees (bilateral).  This gives a combined thoracolumbar ROM of 225 degrees.  Neurological exam revealed a decreased left ankle jerk and decreased sensation in the S1 dermatome.  On 16 March 2004, 6 days prior to separation from service, the CI had a VA Compensation and Pension (C&P) exam.  She complained of constant midline LBP and constant numbness in the LLE.  Her gait was normal, and she walked into the clinic without assistance.  PE of the back showed the spine to be essentially midline, with some straightening of the normal lumbar lordosis.  There was significant paravertebral muscle spasm, which increased with active ROM.  Heel-toe walking was intact and straight leg raise was negative.  Lower extremity active ROM was essentially intact throughout.  Neurological exam revealed an absent ankle jerk on the left and decreased sensation in the S1 dermatome.  Motor strength for the LLE was normal throughout.

The Board directs attention to its rating recommendation.  The PEB and the VA chose different coding and rating options for the LBP condition.  At the November 2003 MEB exam, the CI’s combined thoracolumbar ROM was 225 degrees.  IAW the VASRD §4.71a, a 10% rating is warranted when combined thoracolumbar ROM is greater than 120 degrees, but not greater than 235 degrees.  At the March 2004 C&P exam, there was significant paravertebral muscle spasm with some straightening of lumbar lordosis.  IAW VASRD §4.71a, a 20% rating is warranted when there is muscle spasm severe enough to result in abnormal spinal contour.  After a thorough review of the evidence, the Board determined that a disability rating of 20% was appropriate.  The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling spine condition which would justify a rating higher than 20%.

The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with satisfactory performance of military duties.  The CI clearly had radicular symptoms, evidence of muscle atrophy and an abnormal neurological exam.  However, there was no performance-based evidence that the nerve condition impacted her military duties in any way.  The Board concluded that there was no unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the LBP condition.
Other Conditions.  FM and seasonal allergic rhinitis were both adjudicated by the PEB as Category II (conditions that can be unfitting, but are not compensable or ratable).  The Board’s main charge is to assess the fairness of the PEB’s determination that these two conditions were not unfitting.  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 FM and seasonal allergic rhinitis were not specifically profiled, implicated in the commander’s statement or judged to fail retention standards.  They were reviewed by the action officer and considered by the Board.  There was no performance-based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance.  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 these two conditions.  Therefore, no additional disability ratings are recommended.

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 unanimously recommends no change in the PEB adjudication.  In the matter of the FM and seasonal allergic rhinitis, 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.

Exhibit A.  DD Form 294, dated 20130917, 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-2013-01378.

	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-2013-01378