RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-01051
COUNSEL: NONE
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
1. His spinal fusion with Upper Right Radiculopathy, rated at
20 percent under the Veterans Administration Schedule for Rating
Disabilities (VASRD, 5241), be changed to two separate unfitting
conditions of spinal fusion, (VASRD 5241) with a 30 percent
disability rating, and right lower radicular group, (VASRD 8512)
with a 40 percent rating.
2. His chronic left shoulder pain (VASRD 8719) rated at
10 percent, be changed to left upper radicular group, (VASRD
8510) with a 30 percent disability rating.
_________________________________________________________________
APPLICANT CONTENDS THAT:
On 11 Mar 10, the Air Force Formal Physical Evaluations Board
(FPEB) determined he was unfit and permanently retired him with a
30 percent disability rating. He was awarded a 20 percent
disability rating for spinal fusion under VASRD 5241 and ten
percent for chronic left sided pain under VASRD 8719.
He requested a 30 percent disability rating for VASRD 5241, based
on his limited cervical spine flexion of 15 degrees. However,
the range of motion (ROM) examination dated 12 Feb 10, of his
cervical spine was not allowed as evidence. Therefore, the FPEB
was unable to grant a 30 percent increase because the ROM test
conducted on 12 Feb 10, was missing critical information.
Subsequently, he underwent a second physical therapy evaluation
to provide the missing information. On 22 Feb 11, he underwent a
complete medical examination by the Department of Veterans
Affairs (DVA). Based on their findings of limited forward
flexion of the cervical spine, 15 percent or less, he was awarded
a 30 percent disability rating.
He also requested a 30 percent rating for left side
radiculopathy, (VASRD 8510). However, the FPEB awarded a ten
percent rating for long thoracic nerve (VASRD 8719). The DVA
awarded him 20 percent for left upper extremity peripheral
neuropathy and radiculopathy based on civilian medical records
and the DVA medical examination on 22 Feb 11.
He requested a separate and unfitting condition of 30 percent for
right side radiculopathy VASRD 8516. However, the FPEB stated
The Board does not find any medical evidence of an abnormal
nerve conduction study or EMG results which warrant a separate
and unfitting condition of Cervical Radiculopathy.
On 15 Mar 10, he underwent a nerve conduction study and
Electromyogram (EMG). The neurologists conclusion suggested a
long-standing/chronic C6-C7 radiculopathy. The neurologist also
documented findings of weakness in C6-7, C7-8 and T1 muscles with
neck pain. The DVA awarded him 20 percent for right sided upper
extremity peripheral neuropathy and radiculopathy based on
civilian medical records and the DVA medical examination. The
medical examiner opined his bilateral upper extremity pain
stemmed from his neck and discs above and below the fusion site.
In addition, weakness, decreased sensation, diminished reflexes
and peripheral neuropathy and radiculopathy resulted from
cervical degenerative disc disease and post cervical fusion.
The applicants complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 8 Jan 10, the IPEB reviewed his case and recommended discharge
with severance pay with a 10 percent disability rating.
On 15 Jan 10, the applicant non-concurred and requested a formal
hearing with counsel.
On 11 Mar 10, the FPEB determined that based on a limited ROM and
right radicular pain, the FPEB rated his spinal fusion at
20 percent and considered his chronic left shoulder pain to also
be unfitting and best rated at 10 percent. The FPEB recommend
permanent retirement with a combined disability rating of
30 percent.
On 15 Mar 10, the applicant concurred with the recommendation.
On 28 Jun 10, he was released from the Air National Guard for
diagnosis of spinal fusion with upper right radiculopathy and
chronic left shoulder pain.
On 29 Jun 10, the applicant was permanently disability retired in
the grade of lieutenant colonel with a compensable percentage for
physical disability of 30 percent.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSD states the preponderance of evidence reflects no error
or injustice occurred during the disability process. Based on
documents submitted by the applicant, it appears a cervical range
of motion supports limited movement to 15 degrees. However, this
test was performed after the formal board hearing and was not
reviewed by the FPEB. DPSD states there does not appear to be
clear evidence of two separate unfitting conditions as a result
of cervical spine fusion that supports moderate, incomplete
paralysis involving the right lower radicular group or moderate
incomplete paralysis of the right upper radicular group.
The Department of Defense and the DVA disability evaluation
systems operate under separate laws. Under Title 10, USC,
Physical Evaluation Boards must determine if a members condition
renders them unfit for continued military service relating to
their office, grade or rating. The fact that a person may have a
medical condition does not mean that the condition is unfitting
for continued military service. To be unfitting, the condition
must be such that it alone precludes the member from fulfilling
their military duties. If the board renders a finding of unfit,
the law provides appropriate compensation due to the premature
termination of their career. Further, it must be noted the USAF
disability boards must rate disabilities based on the members
condition at the time of evaluation; in essence a snapshot of
their condition at that time. It is the charge of the DVA to
pick where the AF must, by law, leave off. Under Title 38, the
DVA may rate any service-connected condition based upon future
employability or reevaluate based on changes in the severity of a
condition. This often results in different ratings by the two
agencies.
The complete DPSD evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
In his four-page rebuttal, the applicant reiterates many of his
earlier contentions. He discusses the events leading up to the
FPEB.
He also states the FPEB had clear documentation of his cervical
spine from a physical evaluation conducted on 12 Feb 12, which
documented cervical flexion at 15 degrees. However, the board
claimed they could not use the evaluation as it incorrectly
documented the technique of using a goniometer and failed to
document in detail how the measurements were obtained. On 14 Mar
10, a subsequent evaluation was performed to satisfy the
requirement.
He believes his disability forced him to give up the career he
worked so hard to attain as well as a large part of his civilian
life. He is no longer able to lift or carry heavy objects, lift
his arms over head, jog swim, and play racquetball, rake, shovel,
sweep or vacuum. He needs cervical spine injections to tolerate
the pain in his upper extremities.
The applicants complete submission is at Exhibit E.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing
law or regulations.
2. The application was timely filed.
3. Sufficient relevant evidence has been presented to
demonstrate the existence of error or injustice warranting
partial relief. After thoroughly reviewing the evidence of
record and noting the applicants contention, we find that he
should be assigned a separate disability rating for his cervical
spine and his right [dominant] upper extremity radicular
symptoms. In this respect, we note that Stating both conditions
separately is consistent with former DoD and current DVA policy,
when cervical disc surgery results in a radiculopathy. Although
the applicants cervical spine flexion measurement of 15 degrees
have been implicitly suspect by a previous board, the sustainment
of this range of motion finding upon repeat assessment by a
physical therapist, utilizing proper established tools and
techniques, and its persistence at a subsequent DVA evaluation,
lends some credence to the authenticity of these findings. In
addressing the specific disability rating for the applicants
cervical spine, it is noted the cervical spine forward flexion of
15 degrees or less is consistent with an evaluation of 30
percent, under the General Rating Formula for Diseases and
Injuries of the Spine. With respect to his upper extremity
radicular symptoms, although his initial complaints appeared to
be limited to the left upper extremity, an impartial review of
the MEB, a physical examination, and repeat electrodiagnostic
studies confirmed the presence of a right [dominant] upper
extremity radiculopathy as well. While the FPEB found the left
shoulder unfitting, under neurological VASRD code (8719), we
believe a 20 percent rating for left upper extremity radicular
symptoms, under VASRD code 8510, is more appropriate.
Although a 40 percent rating is desired by the applicant for what
he characterizes as moderate impairment involving his right upper
extremity, it is our opinion that substantial evidence suggests
that an assignment of an evaluation of 20 percent, for bilateral
mild disease is more appropriate. This is also consistent with
the 20 percent rating assigned by the DVA for each of the
applicants right and left upper extremity radicular symptoms.
When combining [not adding] the newly recommended disability
ratings, to include a bilateral factor for the upper extremity
radiculopathies, a combined compensable rating of 60 percent is
achieved. In view of the above, we recommend the applicants
record be corrected to the extent indicated below.
4. The applicant's case is adequately documented and it has not
been shown that a personal appearance with or without counsel
will materially add to our understanding of the issue involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT be corrected to show that:
a. On 11 Mar 10, the Formal Physical Evaluation Board,
found the applicant unfit to perform the duties of his office,
rank, grade, or rating by reason of physical disability, incurred
while he was entitled to receive basic pay; that the diagnoses in
his case were cervical spine degenerative disc disease, status-
post laminectomy and cadaveric graft arthrodesis, a condition
which is rated at a compensable percentage of 30 percent under
Veterans Administration Schedule for Rating Disabilities (VASRD)
code 5241; right upper extremity radicular symptoms, a condition
which is rated at a compensable percentage of 20 percent rating
under VASRD code 8512 and left upper extremity radicular
symptoms, a condition that is rated at a compensable percentage
of 20 percent rating under VASRD code 8510; that the degree of
impairment was permanent; that the disability was not due to
intentional misconduct or willful neglect; that the disability
was not incurred during a period of unauthorized absence; that
the disability was received in the line of duty as a direct
result of armed conflict or caused by an instrumentality of war;
and that the disability was the direct result of a combat related
injury.
b. On 28 Jun 10, he was relieved from active duty and on
29 Jun 10, he was placed on the Permanent Disability Retired List
with a combined compensable disability rating of 60 percent,
rather than 30 percent.
_________________________________________________________________
The following members of the Board considered this application in
Executive Session on 15 Jan 13, under the provisions of AFI 36-
2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered in AFBCMR BC-
2012-01051:
Exhibit A. DD Form 149, dated 31 Jan 12, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, HQ AFPC/DPSD, dated 26 Jun 12.
Exhibit D. Letter, SAF/MRBR, dated 2 Jul 12.
Exhibit E. Letter, Applicant, dated 26 Jul 12.
Panel Chair
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