RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01588
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20140807
SEPARATION DATE:  20040621

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty TSgt/E-6 (3P071/Security Forces Craftsman) medically separated for a back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty or satisfy physical fitness standards.  He was issued an L4 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The Informal PEB (IPEB) adjudicated “chronic back pain status post (s/p) discectomy and fusion” as unfitting, rated 10%.  The CI appealed to the Formal PEB which affirmed the IPEB findings and rating.

CI CONTENTION:  “I was separated under Code 5237, my doctor that performed the surgery also stated I was able to claim VA Code 5241 Spinal fusion and 5243 intervertebral disc syndrome.  I continue pain management and have limited mobility.  I was denied the opportunity to cross train even though others in my unit had similar conditions.  A review of my records will show I was an asset to the USAF.  I was also placed on an Air Force vulnerability list as reductions were occuring.  I believe this was an easy reductions as I was well on way to having a successful career.  Please consider all of the attached documentation for a minimum of a 30% disability rating.  Thank you.”

The CI also attached a one-page statement to his application which was 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; 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 FPEB – Dated 20040413	VA - (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, s/p Discectomy and Fusion	5237	10%	Lumbosacral Degenerative Disc/Joint Disease, s/p Rod Replacement and Fusion	5243	20%	20040818	
Other x 0 (Not in Scope)	Other x 5/NSC x 3	20040818	
Rating:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20041026 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  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’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

Chronic Back Pain Status Post Discectomy and Fusion.  Service treatment records (STR) show that the CI complained of gradual progression of chronic low back pain (LBP) since 1996.  Radiographic evaluation in 2001 and 2002 revealed degenerative changes at L4-5 and L5-S1 and a mild L4-5 disc bulge with encroachment of the foramina bilaterally.  Failing conservative management, which included activity modification, physical therapy, oral medications and epidural injection, the CI elected to have surgery.  In September 2002, surgical removal of herniated disc material and spine fusion of L4-5 and L5-S1 was performed.  Neurosurgical follow-up through May 2003 indicated the CI was doing very well post-operatively and was only experiencing occasional back pain.  However, by July 2003 pain was not very well controlled and an L4 profile was required.  The commander’s statement on 2 December 2003 (6.5 months prior to separation) related that the CI was non-deployable but was qualified for assignments/duties that permitted activity restrictions consistent with his profile.  At the MEB narrative summary, the CI reported his back pain was improved after surgery, but it continued at a severity level of 2-4/10 pain scale.  Physical examination was silent regarding range-of-motion (ROM), tenderness, painful motion, spinal contour or gait.  Lower extremity strength and sensation was normal.  A primary care clinic examination on 17 February 2004 (4 months prior to separation) reported that the back was straight.  Review of the STR found no instances of physician-prescribed bed rest for the lumbar spine condition during the year prior to separation.  At the VA Compensation and Pension (C&P) examination on 24 August 2004 (2 months after separation), the CI reported constant 2-3/10 middle LBP with occasional radiation down the leg.  Pain was aggravated by bending and turning and relieved with medication and heat.  The CI walked with a slightly stiff gait but did not use a brace or walker for ambulation.  Physical examination revealed muscle spasms in the lumbar spine.  Measured lumbar spine ROM showed flexion to 45 degrees with painful motion, extension to 10 degrees with painful motion, right and left lateral flexion to 30 degrees and right and left lateral rotation to 30 degrees.  Combined ROM was 175 degrees.  Lower extremity strength was normal.  Straight leg raises were negative bilaterally.  An X-ray showed surgical changes consistent with fusion of L4-5 and L5-S1.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5237 code (lumbosacral strain), while the VA rated the condition 20% under the 5243 code (intervertebral disc syndrome).  The Board emphasizes that the General Rating Formula for Diseases and Injuries of the Spine applies the same criteria IAW §4.71a regardless of the specific VASRD spine code; although an alternative formula for intervertebral disc disease may be considered (see below).  Although Board members agreed the PEB’s 10% rating was reasonably conceded with application of §4.40 (functional loss) or §4.59 (painful motion), routes to a higher rating were considered.  The only measured lumbar ROM in evidence proximal to separation was from the C&P examination 2 months after separation.  A 20% rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or if muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour is present.  The Board concluded that the C&P examiner’s findings of flexion of 45 degrees justified a 20% rating, but no higher.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet even the 10% criteria under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic back pain s/p discectomy and fusion condition.

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.  In the matter of the chronic back pain s/p discectomy and fusion condition, the Board unanimously recommends a disability rating of 20% coded 5237 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Back Pain, Status Post Discectomy and Fusion	5237	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 201230921, 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-2013-01588.

	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
DFAS-IN