RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02779
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20141014
SEPARATION DATE:  20060227

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-5 (3A071/Information Management 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 “lumbar disk disease, chronic low back pain and left lower extremity radiculopathy,” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic back pain, status post L5-S1 discectomy and fusion” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB also adjudicated the “overweight” condition, as Category III (not separately unfit & compensable/ratable).  The CI made no appeals and was medically separated.

CI CONTENTION:  “1. How McGuire AFB handled the MEB process 2. MEB processed was rushed after I had to get a letter from then Sen. Jxx Cxxx to just start my MEB 3. 2 doctors recommended retirement not separation.”

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 and radiculopathy condition and left lower extremity radiculopathy are 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 (BCMR).  

RATING COMPARISON:

Service IPEB – Dated 20060110	VA - (6 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, Status Post L5- S1 Discectomy And Fusion	5241	10%	Degenerative Disc Disease Lumbar Spine s/p Fusion L5-S 1 with Left Lower Extremity Sciatic
Radiculopathy	5299-5242	20%	20060816	
Other x 0 (Within Scope)	Other x 6		
Combined:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20061206 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertions that his disability disposition was rushed and unfair.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system.

Chronic Back Pain Condition.  The CI was seen by a private spinal surgeon in consultation on 29 August 2003 for a history of progressively problematic sciatica for a number of months.  During the consultation, the CI complained of low back pain as well as left sided leg pain, numbness and tingling in the sciatic distribution towards the calf.  Physical examination revealed antalgic gait, slightly flexed at the waist, limited and painful range-of-motion (ROM), flexion caused sciatica, decreased pinprick noted in the S1 distribution along the left side, positive straight leg raising test and Lesegue’s signs on the left, decreased reflexes on the left ankle (S1) more than the right.  Motor strength examination was intact.  Magnetic resonance imaging study (MRI) was abnormal with findings of a large herniated disc at L5-S1 and an 8mm ependymoma (slowly growing, low-grade tumor) at the L2 cauda equina level.  He proceeded to have the first of two back surgeries on 29 September 2003 for the disk and tumor, with significant improvement but worsening leg numbness after the surgery.  An electromyogram (EMG) was performed at the time was negative for radiculopathy.  A repeat MRI found a recurrent disk herniation, without recurrence of ependymoma.  He had a second back surgery on 18 November 2004.  Upon surgical follow-up, he was doing extraordinarily well.  There was a physical therapy (PT) exam that documented decreased “trunk” ROM performed on 13 April 2005, 12 months prior to separation that documented flexion of 30 degrees and combined ROM of 88 degrees, without specifying normal values, instrument or technique used.  Another PT evaluation on 31 October 2005 found he had some limitation in trunk flexion and extension and was able to touch his knees with hands, and complained of pain at end ranges (no goniometric or inclinometer measurements indicated).

The narrative summary (NARSUM) dictated on 2 November 2005, 3 months prior to separation, notes the CI continued to have pain on a daily basis and he could not do computer work or stand for prolonged periods.  The NARSUM physical examination found a non-tender spine, negative straight leg raising test, and normal deep tendon reflexes.  There was decreased ROM secondary to pain documented but without goniometric measurements.

The VA Compensation and Pension (C&P) exam performed on 16 August 2006, 6 months after separation, cited in the VARD, noted no flare-ups or incapacitating episodes within the past year, no significant left leg pain, but the posterior left calf numbness persisted.  The examination noted normal gait, normal spinal contour and no tenderness.  There were moderate muscle spasms from L3-S1.  ROM was noted by the examiner to be somewhat limited with flexion to 40 degrees, and combined ROM of 140 degrees, without additional limitations with repetition.

The Board directs attention to its rating recommendation based on the above evidence.  The Board considered VASRD diagnostic code 5241 (spinal fusion) used by the PEB for a 10% rating.  This condition is rated according to the General Rating Formula for Diseases and Injuries of the Spine.  The Board found evidence of trunk limitation of motion throughout the clinical history.  There was one decreased “trunk” ROM, which is usually performed with dual inclinometer or bubble goniometer technique, 12 months prior to separation.  The Board determined that this measurement was not a goniometric thoracolumbar ROM as required for a rating using the VASRD (§4.46 accurate measurement).  The Board thus determined that the VA C&P ROM was the most probative for a rating recommendation at the time of separation.  The exam was 6 months after separation, in accordance with VA standards and consistent with the prior limitations of motion documented in the clinical record.  The Board found the examination met the general rating formula’s rating criteria of 20% by flexion greater than 30 degrees, but not greater than 60 degrees (measured at 40 degrees).  The Board considered codes 5299 (rated analogously to) – 5242 (degenerative arthritis of the spine, see also diagnostic code 5003) used by the VA for a 20% rating.  There was no evidence in the record for a higher rating using this alternate code.  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 condition.

Sciatic Nerve Radiculopathy Condition.  The Board considered whether an additional rating could be recommended under a peripheral nerve code, as the 0% conferred by the VA, for the associated sciatic radiculopathy at separation.  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 a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component of calf numbness in this case had no functional implications.  There was no motor weakness in evidence from examinations and EMG testing was negative for radiculopathy.  There was thus no evidence of a separately ratable functional impairment (with fitness implications) from the residual left lateral calf numbness (radiculopathy); and, the Board cannot support a recommendation for an additional disability rating on this basis.

BOARD FINDINGS:  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, status post L5-S1 discectomy and fusion condition, the Board unanimously recommends a disability rating of 20%, coded 5241 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 Low Back Pain Condition	5241	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131218, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear XXXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2013-02779.

	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,

XXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachments:
1.  Directive
2.  Record of Proceedings

cc:
SAF/MRBR