RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX	CASE:  PD-2013-02664
BRANCH OF SERVICE: AIR FORCE	BOARD DATE:  20150106
SEPARATION DATE:  20050912

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty TSgt/E-6 (2S071/Inventory Management Craftsman) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty (AFS) or satisfy physical fitness standards. He was issued a temporary 4LT profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain (LBP),” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The Informal PEB adjudicated “chronic LBP with degenerative disc disease (DDD) at L5-S1” as unfitting, rated 10%, with application of the VA Schedule for Rating Disabilities (VASRD).  The PEB also adjudicated five conditions as Category II (conditions that can be unfitting but are not currently compensable or ratable) and one condition as Category III (a condition that is not separately unfitting and not compensable for ratable).  The CI initially appealed for a Formal PEB, but withdrew his appeal, and was medically separated.

CI CONTENTION:  The CI included the following note with his application: “Issues why the rating for the condition(s) which rendered the member unfit should be changed.  My rating was for Chronic Low back pain with Degenerative disc Disease at L5-S1, what was not included but could be condition for being unfit.
1. Seasonal Allergic Rhinitis
2. History of Chronic Headaches
3. Bilateral Carpal Tunnel Syndrome
4. Right Patella-femoral Syndrome
5. Tinnitus, Bilateral
Also I requested a Formal Board per form AF IMT 1180 dated 2005-05-11 and signed by MSgt Y--. I never received that board instead it went to an informal so I was never able to bring up the issues that I was supposed to be rated on and also other issues that should have been documented.  Per a phone conversation with Mrs. M-- on 8 Feb 2006 and a follow up letter on March 22 2006 I did question as to why my I did not receive a full board and that she indicated that mistakes were made. I have included the letter that I sent. Some of the other issues that I would have brought up at the formal board would have been my irritable bowel syndrome, my sleep apnea, my high blood pressure, my loss of hearing. Since 2006 the Department of Veterans Affairs has sent out a Public Health announcement dated 06/17 /2013 addressing all those issues plus others. (I have included a copy of that message). As I have stating in all the years that I have been trying to get this changed my medical discharge changed to medical retirement was quite fast less than 6 weeks. I find it rather odd that on 05/12/2005 I requested a formal board and on 05/06/2005 that findings were already determined and signed by Lt Col K—S-- with a rating of 10 percent on 05/12/2005 there was a memorandum by Col S-- that I be separated and by June 9th 2005 I was give out processing/separation instructions by SSgt B--.”

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, based on the CI’s contention, the seasonal allergic rhinitis, history of chronic headaches, bilateral carpal tunnel syndrome, right patello-femoral syndrome and bilateral tinnitus are also within the DoDI 6040.44 defined purview of the Board.  The irritable bowel syndrome, sleep apnea, high blood pressure and hearing loss conditions specified in the application were not identified and adjudicated by the PEB, and therefore do not satisfy scope requirements.  Those, and any other conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records (BCMR).

RATING COMPARISON:

Service IPEB – Dated 20050506 | VA - (4 Mos. Pre-Separation & 3 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic LBP w/DDD at L5-S1 | 5243 | 10% | Chronic LBP w/DDD at L5-S1 | 5243 | 20% | 20050525
Seasonal Allergic Rhinitis | Category II | Allergic Rhinitis | 6522 | 0% | 20050525
History of Chronic Headaches | Category II | Chronic Headaches | 8100 | 10% | 20050525
Bilateral Carpal Tunnel Syndrome | Category II | Carpal Tunnel Syndrome, RUE | 8515 | 10% | 20050525
| | Carpal Tunnel Syndrome, LUE | 8515 | 10% | 20050525
R Patello-femoral Syndrome | Category II | Patello-femoral Pain Syndrome, R Knee | 5299-5260 | 10% | 20050525
Bilateral Tinnitus | Category II | Tinnitus | 6260 | 10% | 20051207
Other x 1 (Not in Scope) | Other x 0 | 20050525
Combined:  10% | Combined:  50%
Derived from VA Rating Decision (VARD) dated 20051213 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention 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 considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

The Board likewise acknowledges the CI’s contention for a rating of the five conditions contended and determined to be Category II by the PEB; and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD and based on the degree of disability evidenced at separation, will be recommended.  Finally, the Board acknowledges the CI’s assertion that a Formal Board was not held, contrary to his request; and that this resulted in mistakes in his medical discharge processing.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations.  These issues may be addressed by the BCMR and/or the United States Judiciary System.

Chronic Low Back Pain Condition.  The narrative summary (NARSUM) on 12 April 2005 (5 months prior to separation) reported a 4-year history of LBP that had significantly worsened.  He was unable to deploy in December 2004 due to the condition.  Imaging studies in 2003 showed DDD at L5-S1 with a herniated disc and left-sided foraminal narrowing.  Follow-up imaging in February 2005 showed disc bulging at the L5-S1 level with some involvement of the foramina bilaterally.  Electrophysiologic studies showed “slightly reduced nerve velocities bilaterally.”  Treatment included pain medication, physical therapy, osteopathic manipulation and epidural steroid injections.  Pain severity was now rated 7-8/10, with pain flares to a “14.”  The LBP was associated with pain in the tail bone.  He could only sit for 5 minutes at a time, could not lift more than 10 pounds and walked one mile with difficulty.  Left leg pain also occurred, but there were no complaints of weakness or numbness.  Physical examination showed bilateral lumbar tenderness and significant muscle spasm.  “Diminished range of motion secondary to discomfort” was present, but measurements were not provided.  The exam was silent regarding gait or spinal contour.  Lower extremity neurologic findings, including muscle strength, were normal.

At the VA Compensation and Pension exam performed 4 months prior to separation, the CI reported no history of specific back injury.  Pain was localized over the lower lumbar spine.  Sitting for more than an hour, bending and running aggravated his pain.  Lifting was limited to 15-20 pounds.  Pain radiated from the left buttock to the knee.  A neurosurgical consultation was reportedly performed, and lumbago and lumbar radiculopathy were diagnosed.  Examination revealed a normal gait.  Lower extremity neurologic findings, including muscle strength, were normal.  Lumbar flexion was 44 degrees (normal to 90 degrees) and extension was 10 degrees (normal 30 degrees).  Rotation and lateral flexion were not reported.  The examiner was silent regarding muscle spasm, guarding or spinal contour.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under code 5243 (intervertebral disc syndrome), while the VA assigned a 20% rating under the same code.  Although a 10% rating was justified on the basis of VASRD §4.59 (painful motion), the NARSUM exam was silent regarding details that could support a higher rating.  Such items included sufficiently reduced (measured) range-of-motion, and spasm severe enough to cause an abnormal gait or spinal contour.  While the VA exam performed a month after the NARSUM also lacked some rating details, it documented measured flexion that warranted 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 criteria for a higher rating under that formula.

The Board finally deliberated if an additional disability was justified for a history of lower extremity radiculopathy.  The CI complained of intermittent radiating pain to the left lower extremity.  Electrodiagnostic studies were reportedly slightly abnormal and a neurosurgeon diagnosed radiculopathy.  However, the CI denied muscle weakness, and examinations recorded normal neurologic findings, including muscle strength.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  While the CI experienced some radiating pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The Board therefore concludes that additional disability was not justified on this basis.  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 LBP condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that seasonal allergic rhinitis, history of chronic headaches, bilateral carpal tunnel syndrome, right patello-femoral syndrome and bilateral tinnitus 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 NARSUM examiner reported a history of allergic rhinitis which required the occasional use of over-the-counter medication and for chronic daily headaches for which no medication was taken.  Bilateral carpal tunnel syndrome was treated with wrist splints.  Right knee pain was chronic since 1988 and reportedly required hospitalization after an injury in 1991.  His knee problem contributed to his inability to exercise regularly.  Tinnitus (sensation of ringing in the ears) was present since 1995.  The commander’s statement did not specify any of the above conditions as impediments to duty performance.  They were not profiled and were not judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that any 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 the any of the contended conditions and so 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 chronic LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended seasonal allergic rhinitis, chronic headaches, bilateral carpal tunnel syndrome, right patello-femoral syndrome and bilateral tinnitus conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 with Degenerative Disc Disease | 5243 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, date stamped received, 20131112, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

				
XXXXXXXXXXXXXX
President
DoD 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-2013-02664.

	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-2013-02664