RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX	CASE:  PD-2013-02133
BRANCH OF SERVICE: AIR FORCE	BOARD DATE:  20141003
SEPARATION DATE:  20050411

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty A1C/E-3 (2FO51/Fuels 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 “lower back pain,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The Informal PEB adjudicated “low back pain (LBP)” as unfitting, rated 10%, citing the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION: The CI writes: “Initial MEB Board had a disability rating of 50%.”

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 20041214	VA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	Mechanical Low Back Pain	5299-5237	10%	20060215	
Other x 0 (Not in Scope)	Other x 1		
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 2010818 as original VARD not in evidence.

ANALYSIS SUMMARY:

Low Back Pain.  The CI experienced chronic recurring LBP following a strain in July 2002 changing a tire on an air refueling unit.  The service treatment records reflect treatment with physical therapy, medication and frequent duty limiting profiles over the ensuing months leading to referral for MEB.  Magnetic resonance imaging (MRI) on 2 May 2003 was normal.  Clinic evaluations recorded back pain without radiation and examinations showing no findings of radiculopathy (normal strength, reflexes, sensation and negative provocative maneuvers).  Although muscle spasm was noted on some examinations, gait was normal.  Range-of-motion (ROM) was noted to be reduced due to pain.  A treatment record entry dated 18 August 2003 recorded his supervisor’s concern regarding the apparent conflict between medically recommended duty limitations and observations that the CI was lifting weights in the gym and playing basketball without apparent difficulty.  The CI’s back pain was aggravated by a motorcycle accident in December 2003.  A MEB narrative summary (NARSUM) addendum dated 16 April 2004 noted significantly improved back pain since removal from regular duties in fueling.  Clinic examination on 29 June 2004 noted tenderness without spasm, normal gait, normal reflexes and negative provocative maneuver for radiculopathy.  The MEB NARSUM on 2 August 2004 recorded pain with extension and lateral bending.  Strength, reflexes and sensation were normal.  Straight leg raising was negative for signs of radiculopathy.  Physical therapy ROM examination for the MEB on 19 August 2004, recorded flexion of 40 degrees, extension 30 degrees, left lateral flexion 20 degrees, right lateral flexion 15 degrees and rotation of 30 degrees in both directions.  At the time of the VA Compensation and Pension (C&P) examination on 15 February 2006, 10 months after separation, the CI reported he was employed full-time as a concrete dump truck driver for 8 months and experienced continued low back pain with lifting, carrying, prolonged sitting and driving.  On examination, gait and posture were normal.  There was mild guarding and tenderness with spasm but not severe enough to cause abnormal spinal contour or gait.  Thoracolumbar ROM was flexion 80 degrees (normal 90), extension 28 degrees (normal 30), lateral flexion 30 degrees in both directions (normal 30) and rotation 30 degrees in both directions (normal 30).  Provocative maneuver for signs of radiculopathy was negative.  Strength, sensation and reflexes of the lower extremities were normal.  X-rays of the thoracic and lumbar spines performed at the time of the C&P examination were normal.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the LBP 10% (coded 5237, lumbosacral strain) noting a lack of objective findings.  The VA rated the back condition 10% based on the post separation VA C&P examination.  The MEB physical therapy examination and the VA C&P examination were approximately equidistant from the date of separation.  The limitation of motion recorded by the physical therapist on 19 August 2004, correlates with a 20% rating while the VA C&P examination 10 months after separation supports a 10% rating.  The Board noted the MRI showed no abnormalities associated with the CI’s low back pain and the command’s observation of recreational activities inconsistent with the CI’s complaint of back pain and profile limitations.  However the Board also noted a motor vehicle accident following that observation associated with increased back pain.  Service treatment record entries noted limitation of motion but without quantification to compare with the MEB physical therapy examination.  The Board majority concluded a 20% rating was supported giving the benefit of reasonable doubt (§4.3) to the CI.  There was no evidence of intervertebral disc syndrome for consideration of rating under the alternate formula for intervertebral disc syndrome and no evidence of radiculopathy for consideration of a separately unfitting peripheral nerve impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 20% for the LBP condition (5237).

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 low back pain condition, the Board by a vote of 2:1 recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent 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 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	
Low Back Pain 	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131028, 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-2013-02133.

	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