RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-02612
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20140409
SEPARATION DATE:  20041129

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E-5 (2W171/Aircraft Armament Technician) medically separated for a back condition.  He had a history of low back pain reported to have started in late 2001 following a car accident and later exacerbated by a recreational accident in 2007.  This condition was treated with nonsurgical measures, but could not be adequately rehabilitated to meet the requirements of his Air Force Specialty or physical fitness standards, so he was referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other conditions were submitted by the MEB.  The PEB adjudicated “chronic back pain” as unfitting, rated 10%, referencing the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION: “Have increased conditions resulting from lower back which I have seen civilian doctors for & also civilian chiropractors, PT.”   

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 low back condition is addressed below; 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.  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 future severity or complications of conditions that resulted in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

RATING COMPARISON:

Service PEB – Dated 20040910	VA - (3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5237	10%	Degenerative Joint Disease of Lumbar Spine	5242	10%	20050222	
No Additional MEB/PEB Entries	Other x 1		
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20050322.

ANALYSIS SUMMARY:

Low Back Condition.  The narrative summary (NARSUM) notes the CI developed low back pain after an automobile accident in 2001.  Routine X-rays of the low back and a total body bone scan in March 2002 revealed no bony pathology.  The CI’s back pain continued and the CI developed intermittent radiation of the pain to the left mid-thigh.  Lower extremity nerve conduction studies in June 2002, revealed no evidence of sensory neuropathy.  Magnetic resonance imaging (MRI) of the low back in May 2002 revealed broad based discs at the lower spine level without compression of the spinal cord.  This bulging disc condition was improved on follow-up MRI study performed in June 2004, 5 months before separation.  Orthopedic surgical consultation on 16 July 2004, recommended no surgery.  At the MEB/NARSUM evaluation in August 2004, 3 months prior to separation, the CI reported daily back pain described as “muscle soreness” with occasional radiation into the legs, but was able to “do his job” as a support custodial technician.  He reported improvement in symptoms with non-narcotic medication.  The MEB physical exam noted the CI to be able to flex his back to his toes with some pain but no spasm or tenderness to palpation by the examiner.  Motor strength and reflexes were normal.  A slight decrease in touch was present over the mid right calf.  At the VA Compensation and Pension exam in March 2005, 3 months after separation, the CI reported occasional radiation of the back pain to his mid-calf but “only two flares of pain lasting 1-2 hours where he couldn’t walk.”  However, the CI reported no episodes of incapacitation, over the last 12 months.  He reported no difficulties with daily activities when there were no “flare-ups” and was walking 1 to 2 miles a day.  On examination, gait and posture were normal.  Forward flexion of the spine was normal without pain or Deluca signs.  Reflex, sensory and motor exams of the legs were normal.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back condition 10% for painful motion using different codes IAW §4.71a and §4.59; the PEB using code 5237, lumbosacral strain and the VA using 5242, arthritis of the spine.  The Board unanimously agreed that the record in evidence did not support a compensable rating for the back condition using range-of-motion criteria.  The Board agreed that the MEB and VA examinations were equivalent and both supported a 10% rating for the back condition at time of separation for painful motion.  The Board then reviewed other avenues for appropriate rating.  There was no evidence for ratable peripheral nerve impairment in this case, since no motor weakness was present, nerve conduction studies were negative and sensory symptoms had no functional implication.  There was no evidence of incapacitating episodes for a higher rating under code 5243 (incapacitation, back).  The Board found no other appropriate codes for consideration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back pain 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.  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 back pain 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 recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131126, 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-2013-02612.

	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