RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01413
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20141030
SEPARATION DATE:  20030928

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Air National Guard SSgt /E-5 (3P/Security Forces) medically separated for back condition.  This condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic uncomplicated non-radicular low back pain (LBP) condition was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other condition was submitted by the MEB.  The Informal PEB result was not available in evidence for the Board’s review, but the CI appealed to the Formal PEB, VA Affairs Schedule for Rating Disabilities (VASRD).  The CI made no further appeals and was medically separated.

CI CONTENTION:  The CI attached a single page statement to his application, with 30 pages of service treatment records already in evidence, all of which were reviewed by the Board and considered in its recommendations.

His complete submission, with attachments is at Exhibit A

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 contended neck, irritable bowel/reflux and tinnitus conditions were not identified by the MEB or PEB; and thus are not within the DoDI 6040.44 defined purview of the Board.  These, and any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s contention that suggests a higher rating should have been granted on the unfitting medical condition documented at the time of separation.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

RATING COMPARISON:

Service FPEB – Dated 20030930 | VA* - Based on Service Treatment Records (STR)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Back Pain | 5295 | 10% | Herniated Nucleus Pulposus | 5243 | 10% | STR
Other x 0 (Not in Scope) | Other x 2
Combined:  10% | Combined:  10%
*Derived from VA Rating Decision (VARD) dated 20040513 (most proximate to date of separation (DOS))
ANALYSIS SUMMARY:

Chronic Back Pain.  Review of the service treatment records (STR) reveals the CI with a history of LBP.  Pain started in December 2000 after he fell from some bleachers during a training exercise.   He was seen later for LBP without radiculopathy.  Upon examination, muscle spasm was noted on the right lumbar area, with forward flexion limited to 110 degrees.  Later that month, he was re-evaluated and a normal neurological examination was noted, except for a positive straight leg raise (SLR) test on the left.

During an examination at a VA medical center in 1 March 2001 approximately 3 years prior to separation, the CI noted “constant discomfort at the lower back at 3/10 intensity,” increasing to 6/10 with exacerbations and radiating into the left thigh and knee.  The CI noted “difficulty walking due to instability” and difficulty with stairs.  The examination revealed a non-tender spine and painful limited motion of the lumbar spine.  Radiologic imaging on 8 March 2001 noted a left L5-S1 disc herniation (HNP) with compression of the thecal sac (the membrane surrounding the nerve root) at the left S1 nerve root.”  Neurosurgery evaluation on 11 May 2002 (16 months prior to separation) recommended surgery, which the CI declined, stating later that he had thought he “could go on without surgery.”

The commander’s memorandum to the MEB (12 months prior to separation) stated that the CI was “physically incapable of reasonably performing duties…due to his back problems.”  The CI received a permanent (L3) profile (7 months prior to separation), noting a diagnosis of “herniated lumbar disc L5-S1, chronic low back pain,” limited exercise to “walking at own pace and distance” and limited lifting to 10 pounds.

At the MEB Medical Examination (DD Form 2808 and 2807), dated 7 months prior to separation, the CI reported LBP.  The examination documented a negative SLR test, normal deep tendon reflexes (DTR) and a diagnosis of “Chronic low back pain- HNP L5-S1.”  The MEB narrative summary (NARSUM), approximately 8 months prior to separation, reported stiffness and soreness, especially after prolonged sitting or standing, treated with Motrin (pain reliever) and Flexeril (muscle relaxer).  There were no documented incapacitating episodes.  The examination documented a normal lordotic (lumbar) curve, normal gait and absence of muscle spasm.  After the MEB, the CI was seen several more times for LBP, with intensity up to 9/10, but otherwise unchanged.  The first VA Compensation and Pension exam was conducted approximately five years after separation and had no probative value.

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 chart below.

Thoracolumbar ROM
(Degrees)

VA Exam
~3 Yrs. Pre-Sep (20010301)

NARSUM
~8 Mo. Pre-Sep
(20030205)

Flexion (90 Normal) | “limited” | 70
Extension (30) | 20 | 30
R Lat Flexion (30) | 30 | 20
L Lat Flexion (30) | 30 | 20
R Rotation (30) | 20 | Not recorded
L Rotation (30) | 20 | Not recorded
Combined (240) | Not available | Not available
Comment | 4/5 left leg weakness, +SLR, normal gait, sensation and reflexes. | Normal gait, normal lordotic (lumbar) curve, no muscle spasm
§4.71a Rating | 10% | 10%

The Board directs attention to its rating recommendation based on the above evidence.  The PEB awarded a 10% rating utilizing VASRD code 5295 (intervertebral disc syndrome) IAW the interim spine rating rules, which were superseded by the new spine rules on 26 September 2003.  The VA awarded a 10% rating utilizing VASRD code 5243 (intervertebral disc syndrome), IAW the new spine rating rules; based on the CI’s STR.

The Board noted that the current VASRD §4.71a rating standards for the spine went into effect prior to the DOS and IAW DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  The Board deliberate and determined that the forward flexion of 70 degrees, as noted in the NARSUM exam in the chart above qualifies for a 10% rating under code 5243 via VASRD §4.71a with application of the General Rating Formula for Diseases and Injuries of the Spine.  There was no documentation of ankylosis of the spine, or incapacitating episodes (physician prescribed bed rest) approximating 4 weeks, or other evidence that would support a higher rating.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.59 (painful motion), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic back pain.  The Board also notes that, under the new spine rules in effect at the time of separation, VASRD code 5295 was no longer applicable and therefore recommends changing the VASRD code to 5243 at 10%, with application of the current General Rating Formula for Diseases and Injuries of the Spine, for the chronic low back pain condition.

Peripheral Neuropathy:  The Board considered whether an additional rating could be recommended under a peripheral nerve code for a left S1 radiculopathy.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The pain component of the neuropathy was appropriately subsumed in the spine rating, IAW VASRD §4.71a, and no sensory component was identified.  However, the Board members deliberated whether the left leg weakness, noted in evidence early in the course of this condition, had impacted fitness to an extent that would justify a separate rating.

In a follow-up examination after his injury, the CI was noted to have constant pain radiating into his left leg with decreased strength (4/5) in the left leg.  Radiographic imaging noted a left L5-S1 disc herniation with compression of the thecal sac [the membrane surrounding the nerve root] at the left S1 nerve root.”  An electromyogram, used to measure the functional condition of the nerves of the lower extremities, was performed 8 months prior to separation was “suggestive of left L5 nerve root irritation.”  A permanent L3 profile issued on 7 February 2003, listed the diagnosis of “herniated lumbar disc L5-S1, chronic low back pain,” outlined numerous restrictions as noted above.  The commander’s memorandum to the MEB noted only the CI’s impairment due to back pain.  A physical therapy note (8 months prior to separation) noted normal gait, “no loss” of sensation and full strength (“5/5”) in the lower extremities with “no evidence of radiculopathy.”  The MEB NARSUM noted that the CI denied “any lower extremity radiculopathy.”  The NARSUM examination noted normal sensation, strength and reflexes, in the lower extremities, with a normal gait and normal “heel and toe walk” (a test for neuropathy).

After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of the left leg weakness demonstrated that the condition was neither sufficiently profiled nor implicated in the commander’s statement and was not judged separately to fail retention standards.  This condition was reviewed by the action officer and considered by the Board.  There was no performance-based evidence from the record that this condition independently or significantly interfered with satisfactory duty performance.  The Board concluded that there was insufficient cause to recommend a left leg radiculopathy as an additionally unfitting condition for disability rating, and no additional disability rating is 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 low back pain with herniated disc condition, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB rating, but recommends a change to VASRD code 5243, IAW the VASRD rating standards for the spine that were in effect at the time of separation.  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, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Chronic Low Back Pain Condition | 5243 | 10%
COMBINED | 10%

The following documentary evidence was considered:

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-2013-01413.

	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 Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended modification of your assigned disability rating without re-characterization of your 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 direct that your records be corrected as set forth in the attached copy of a Memorandum for the Chief of Staff, United States Air Force.  The office responsible for making the correction will inform you when your records have been changed.

							Sincerely,

XXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachments:
1.  Directive
2.  Record of Proceedings

cc:
SAF/MRBR

PD-2013-01413