RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02144
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20150506
SEPARATION DATE:  20050628

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Aerospace Maintenance Journeyman) medically separated for low back pain (LBP) with degenerative disease.  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 a temporary P4U4L4 profile and referred for a Medical Evaluation Board (MEB).  “Chronic back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The MEB also identified and forwarded asthma for PEB adjudication.  The Informal PEB (IPEB) adjudicated “asthma” and “low back pain with herniated disk, L4-5” as unfitting, rated 10% and 10%, with likely application of Department of Defense Instruction (DoDI) 1332.39 and the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB (FPEB) which adjudicated “low back pain with degenerative disease” as unfitting, rated 20%, with likely application of Department of Defense Instruction (DoDI) 1332.39 and the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining asthma condition was determined to be Category II, a condition that can be unfitting, but is not currently compensable or ratable.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board gives consideration to DVA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

FPEB – Dated 20050513 | VA* - (~14 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
LPB w/DD Disease | 5242 | 20% | DDD, Thoracolumbar Spine w/Herniated Nucleus Pulposus at L4-5 | 5242 | 20% | 20060823
| | | Radiculopathy, Sciatica, Right Lower Extremity (RLE) | 8620 | 10% | 20060823
Asthma | CAT II | Asthma | 6602 | 10% | 20060823
Tympanic Membrane Perforated, Left Ear | CAT II | Perforated Typmpanic Membrane, Left | 6211 | 0% | 20060823
Other x 0 (Not In Scope) | Other x 7
RATING:  20% | COMBINED:  70%
*Derived from VA Rating Decision (VARD) dated 20070828 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

LBP w/DD Condition.  The narrative summary (NARSUM) notes the CI developed back pain (BP) in 2000 while lifting a heavy toolbox and had a history of intermittent BP since that incident.  In April 2003 magnetic resonance imaging (MRI) of the thoracic spine (T-spine) showed a small disc herniation at T7-8 and MRI of the lumbar spine (L-spine) noted a small disc bulge at L5-S1, without evidence of nerve root impingement or spinal stenosis.  Notes in the service treatment record (STR) indicated the CI was referred to pain medicine (PM) for management for persistent symptoms despite physical therapy.  Lumbar facet syndrome (pain due to degenerative changes of the facet joints of the spine) was diagnosed and a lumbar MRI was repeated 5 April 2004 with no change.  The CI had multiple facet joint injections with only temporary relief provided.  Another lumbar MRI was performed on 9 July 2004 and there was no significant change in the findings.  Primary care notes in July and August 2004 indicated that the CI’s BP continued.  He was placed on desk duty due to the asthma condition (discussed further below), which initially helped, but then aggravated his BP due to increased sitting.  At a PM visit 19 October 2004 the CI reported acute worsening of BP and the exam noted muscle spasm with an antalgic gait.  The follow up PM visit on 4 November 2004 also noted muscle spasm with antalgic gait.  Electrodiagnostic studies (electromyelogram (EMG) and nerve conduction velocity (NCV)) were performed on 2 December 2004 to evaluate reported bilateral lower extremity (LE) radicular symptoms and the results showed evidence of a moderately severe right L4 L5 radiculopathy.  At an orthopedic evaluation on 25 January 2005, 5 months prior to separation, the CI reported LBP that radiated down the right leg and the exam noted full flexion and extension with stiffness.  Straight leg raise (SLR) testing was negative bilaterally, but there was tenderness to palpation of the sciatic nerve in the right buttock.  Lower extremity reflexes were normal and there were no neurological or sensory deficits noted.  The examiner noted subjective RLE radiculopathy.  The orthopedic examiner did not recommend surgery, but advised the CI continue with PM and recommended permanent activity restrictions.  Five PM evaluations in the record between December 2004 and April 2005 indicated intermittent decreased lumbar range-of-motion (ROM) with normal strength, sensation, and reflexes, and muscle spasm and antalgic gait were noted on 3 out of 5 evaluations.  No muscle spasm was noted at the orthopedic evaluation in January 2005, which occurred between three PM evaluations when spasm and abnormal gait were noted.  The NARSUM stated that the CI had been placed on convalescent leave on several occasions from a few days to 2 weeks in duration.

At the MEB NARSUM examination performed 6 February 2005, 5 months prior to separation, the CI reported chronic BP with bilateral LE symptoms.  The exam cited the January 2005 orthopedic exam noted above.

At the VA Compensation and Pension (C&P) examination on 23 August 2006, 14 months after separation, the CI reported LBP that radiated down the RLE with muscle spasms, paresthesia and constant leg/foot weakness, without other neurological problems.  He reported weekly flare-ups for 2 to 3 days.  The exam noted a normal gait without muscle spasm or guarding.  There was tenderness of the lumbar region with painful motion noted.  Thoracolumbar (TL) flexion was 55 degrees (normal 90), with a combined ROM of 160 degrees (normal 240).  Exam of the RLE noted mildly decreased strength throughout (more than the L5 dermatome distribution).  Sensation of the LLE was normal and decreased sensation of the right leg and right great toe was noted with a positive SLR on the right and normal reflexes bilaterally.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and the VA both rated the back condition 20%, coded 5242 (spinal arthritis).  The VA also rated the RLE radiculopathy 10%, coded 8620 (sciatic neuritis).  The Board noted the VA C&P examination was 14 months after separation, just beyond the 12-month interval specified by DoDI 6040.44 for special consideration to after-separation evidence which is deemed probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.  In this case the Board concluded that the evidence of frequent muscle spasm severe enough to result in an abnormal gait in the STR and the evidence at the remote C&P of TL flexion less than 60 degrees provided consistent support for a 20% rating according to VASRD rules for rating the spine in effect at the time of separation, but there was no evidence of TL flexion of 30 degrees or less for the next higher rating.  The Board reviewed to see if a higher evaluation was achieved coding the back condition based upon incapacitating episodes.  Although the MEB examiner documented frequent absences of days to a couple weeks in length due to the back condition, there was no clear documentation in evidence of the total duration of incapacitating episodes in the past 12 months to provide greater than a 20% rating.

The Board also considered if there was evidence in the record to support recommending the RLE radiculopathy as a separately unfitting condition eligible for additional disability rating.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  Proximate to separation the CI had reported bilateral LE radicular symptoms and there was EMG evidence of a RLE radiculopathy, but LE strength, sensation, and reflexes were normal throughout the STR.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a and there was no evidence of a motor or sensory deficit associated with functional impairment proximate to separation.  Therefore, the Board agreed that no additional disability rating could be recommended based on peripheral nerve impairment.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.

Contended PEB Conditions (Asthma and Left Ear).  The Board’s main charge is to assess the fairness of the PEB’s determination that the asthma and left ear conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  

Asthma Condition.  The NARSUM noted the CI underwent an MEB for asthma in March 2003 and was returned to duty with assignment limitations.  A full NARSUM was submitted when the condition was due for periodic review because it had worsened in the interim.  Notes in the STR indicated that following the initial diagnosis the CI was treated with multiple medications for asthma and acid reflux, which were helpful but the CI continued to report difficulty breathing with exertion, especially running.  Pulmonary notes indicated a pulmonary function test (PFT) dated 18 June 2003 and a CT scan of the lungs in 2002 were normal.  In June 2004 the pulmonary specialist recommended that the CI’s work environment be changed.  A profile dated 30 June 2004 noted, “Must avoid prolonged exposure to dust, chemical fumes, bird droppings” and the next profile in the record dated 15 October 2004 noted, “Please remove from hangar and place in administrative duty.”  At a follow-up pulmonary visit in November 2004, the CI reported that he had been moved to a different work environment and noted “some chest tightness with exertion with a little bit of cough.”  Repeat PFT on 17 December 2004 noted a normal FEV1 and FEV1/FVC.  The IPEB performed on 12 April 2005 adjudicated the asthma condition unfitting and rated 10%.  The CI appealed the rating of the back condition and requested an FPEB.  The FPEB adjudicated the asthma condition as Category II (a condition that can be unfitting, but is not currently compensable or ratable).  In the remarks section the FPEB noted that the CI stated, “my back has a bigger impact than asthma” and noted that the CI was able to perform his duties without significant problems after the asthma diagnosis.

Left Ear Tympanic Perforation Condition.  Notes in the STR indicated the CI experienced exposure to loud noise 17 May 2004 that caused the left tympanic membrane (TM) to rupture, associated with noise-induced hearing loss (HL) and dizziness (vertigo).  The TM healed but the moderate HL persisted and the CI also reported vertigo associated with head movement.  Brain MRI was negative for any abnormalities.  The otolaryngology MEB summary on 2 February 2005 indicated the CI would need a hearing aid and therapy for his vertigo symptoms.  The NARSUM examiner indicated that the ear condition “does not require a MEB,” but noted the CI requested that it be included in the NARSUM.

The commander’s statement noted the limitations due to the asthma condition and referenced convalescent leaves (due to the back condition) and frequent absences due to medical appointments, but did not discriminate between the asthma and back condition.  The asthma was profiled and the CI’s duties were changed due to the asthma condition.  However, the Board noted CI was moved to an administrative position with minimal asthma symptoms reported thereafter, and normal pulmonary testing.  There was no performance-based evidence from the record that the asthma significantly interfered with satisfactory performance of the newly assigned administrative duties at the time of separation.  Additionally, the left ear condition was not profiled, mentioned in the commander’s statement or judged to fail retention standards and there was no performance-based evidence from the record that the left ear condition significantly interfered with satisfactory performance.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determinations for the asthma and left ear 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 back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended asthma and left ear 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, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140502, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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

Dear XXXXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-02144.

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,

XXXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings

cc:
SAF/MRBR

PD-2014-02144