RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:       BRANCH OF SERVICE:  AIR FORCE
CASE NUMBER:  PD1000093      SEPARATION DATE:  20011106
BOARD DATE:  20110209


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual (CI) was an Air  National  Guard  SSgt
(4A071, Health Service Manager) medically separated from the  Air  Force  in
2001 after 18 years combined service.  The medical basis for the  separation
was chronic low back pain. The CI had onset of low back pain  after  falling
into a ditch during a military detail in October  2000.   He  had  extensive
physical and aquatic therapy and various  treatment  modalities  to  include
bilateral hemi-laminectomy and discectomy surgeries in March  and  April  of
2001; however, he did not respond adequately to perform within his  military
occupational specialty or participate in a physical fitness  test.   He  was
issued a permanent 4T profile  and  underwent  a  Medical  Evaluation  Board
(MEB).  Chronic low back pain  was  submitted  to  the  Physical  Evaluation
Board (PEB) on the AF Form 618, Medical Board Report.  No  other  conditions
were identified on the MEB’s AF Form 618 submission, the  narrative  summary
(NARSUM),  or  the  Disability  Evaluation  System  (DES)  file.   The   PEB
adjudicated the chronic low back pain condition as unfitting, rated 10%  IAW
with the Veterans Affairs Schedule for Ratings  Disabilities  (VASRD).   The
CI made no appeals  and  was  medically  separated  with  a  10%  disability
rating.


CI CONTENTION:  The CI states: “Was given a rating of 50%  for  degenerative
disease, L5-S1, S/P hemilaminectomy effective  date  of  01  December  2001.
Subsequently was found to be unemployable by VA  disability  standards  with
an effective date of December 2002. Diagnosed with severe depression by  Dr.
Fred Marsh, Iowa Health Physicians dated 21 Mar 02.  Report  from  Catherine
Evans PhD confirmed severe depression dated 9 Jul 02. VA rated  me  30%  for
major  depressive  disorder,  effective  date  of  10  Jun   02.    I   have
approximately 18 years total military service to my country.   So  close  to
fulfilling 20 years of service for retirement.”
____________________________________________________________________________
__

RATING COMPARISON:

|Service IPEB – Dated 20010921  |VA (6 Mo. after Separation) – All       |
|                               |Effective 20011107                      |
|Condition                      |Code                                    |


ANALYSIS SUMMARY:

Chronic Low Back Pain Condition.  The 2001 Veteran  Administration  Schedule
for Rating Disabilities (VASRD) coding and rating standards for  the  spine,
which were in effect at the time of separation, were changed to the  current
§4.71a rating standards in 2004.  The 2001 standards  for  rating  based  on
range of motion  (ROM)  impairment  were  subject  to  the  rater’s  opinion
regarding degree of severity, whereas the current standards  specify  rating
thresholds in degrees of ROM impairment.  When older cases have  goniometric
measurements in evidence, the Board reconciles (to the extent possible)  its
opinion regarding degree of severity for the older spine codes  and  ratings
with the objective  thresholds  specified  in  the  current  §4.71a  general
rating  formula  for  the  spine.    This   promotes   uniformity   of   its
recommendations  for  different  cases  from  the  same  period   and   more
conformity across dates of separation, without sacrificing  compliance  with
the DoDI 6040.44 requirement for rating IAW the VASRD in effect at the  time
of separation.

At the time  of  the  MEB  examination  the  CI  had  persistent  back  pain
associated with confirmed disc  disease  despite  two  surgical  procedures.
While the  surgeries  had  relieved  the  radiating  leg  pain  the  CI  had
experienced, the  residual  back  pain  resulted  in  significant  work  and
activity restrictions.   A  functional  capacity  evaluation  was  performed
which confirmed the CI’s physical limitations.  The NARSUM examiner noted  a
normal motor and neurological exam, decreased lumbar ROM  due  to  pain  and
paraspinous tenderness, but no abnormal gait or  contour.   Entries  in  the
service treatment record include a physical therapy note  two  months  prior
to the MEB that recorded the spine ROM as  forward  flexion  to  “¾  range”,
lateral bending “> ½ range” and rotation “¾ range.”   A  neurosurgeon  noted
that his “gait, station, tone and strength are  satisfactory.”   At  the  VA
examination (six months after  separation)  the  CI  reported  that  he  was
working half days as a service representative.  He stated that  even  modest
activities such as “prolonged sitting,  prolonged  standing,  squatting,  or
lifting of any weight intensifies his low back pain.”  He  denied  radicular
symptoms and bowel or bladder dysfunction.  He was taking very  little  pain
medication.  He stated that his back pain  had  intensified  over  the  past
three months, but mentioned no incapacitating  episodes.   The  VA  examiner
noted a slow, cautious gait, paraspinous tightness  and  tenderness,  and  a
normal motor and sensory exam.  The CI frequently had to  get  up  from  the
exam table or change position to relieve  the  back  pain  that  intensified
during the exam.  The measured ROMs  were  70⁰  flexion  and  180⁰  combined
which approximated the pre-separation physical  therapy  exam  noted  above.
Radiographs showed degenerative changes in the lower lumbar spine.

The Board must correlate the  above  clinical  data  with  the  2001  rating
schedule which, for convenience, is excerpted below:

       5292 Spine, ankylosis of, lumbar:
            Unfavorable …………………………………………………..……….…………....     50
            Favorable …………………………………….……………….…….…………...….      40


       5292 Spine, limitation of motion of, lumbar:
            Severe ………………………………………………………..……….…………....  40
            Moderate …………………………………….……………….…….…………...…. 20
            Slight ………………………………………………………..…………………..….   10

       5293 Intervertebral disc syndrome:
            Pronounced; with persistent symptoms compatible with: sciatic
                neuropathy with characteristic pain and demonstrable muscle
                spasm, absent ankle jerk, or other neurological findings
               appropriate
                to site of diseased disc, little intermittent relief
               ………………..….……….…..   60
            Severe; recurring attacks, with intermittent relief
       ……………..…….………..….…    40
            Moderate; recurring attacks ……………………………………………............…...
       20
            Mild ……………………………………………………………..…………….….…     10
            Postoperative, cured ……………………………………………..……………....…..      0
5295 Lumbosacral strain:
            Severe; with listing of whole' spine to opposite side, positive
               Goldthwaite's sign, marked limitation of forward bending in
                standing position, loss of lateral motion with osteo-
               arthritic
                changes, or narrowing or irregularity of joint space, or
               some
                of the above with abnormal mobility on forced motion
               …………………..…... 40
            With muscle spasm on extreme forward bending, loss of lateral
       spine
                motion, unilateral, in standing' position
               ……………...…………..…...….…..  20
            With characteristic pain on motion ………………………………..……...…….….  10
            With slight subjective symptoms only ……………………...………………...……. 0

The PEB’s AF Form 356, Findings and Recommended  Disposition  of  USAF  PEB,
references  application  of  the  VASRD  and  its  10%   determination   was
consistent with the existing §4.71a standards.  The Board  acknowledges  the
MEB exam was poorly documented in terms of ratable data, but notes that  the
CI’s overall condition and described physical findings as described  in  the
pre-separation medical records and the VA  Compensation  and  Pension  (C&P)
exam were highly congruent.  The VA rated the spine under the previous  code
5289 as unfavorable ankylosis of the lumbar  spine,  acknowledging  that  it
was doing so on the basis of  functional  impairment  rather  than  clinical
accuracy.  The ROMs  and  exam  in  evidence  do  not  remotely  approach  a
clinical correlation with ankylosis.  The degree  of  functional  impairment
described in the examination does not remotely approach that which would  be
expected from unfavorable ankylosis of the spine.  The  authority  for  this
approach cannot be derived from §4.40 (functional loss) or elsewhere in  the
VASRD.  The Board concludes that the VA’s coding  and  rating  determination
invoked a misapplication of the VASRD and derived a  rating  unsupported  by
the quoted evidence.  The Board considered the PEB’s rating under  the  5295
code.  The 20% rating for 5295  is  fairly  specifically  defined  as  noted
above.  The CI’s condition clearly did not meet those 20% criteria prior  to
separation or at the post-separation VA examination.   Likewise,  the  Board
considered a rating under the 5292 code  for  limitation  of  spine  motion.
The minimally impaired ROMs in evidence at the MEB examination  and  at  the
VA  C&P  exam  were  not  sufficient  justification  for   a   20%   rating.
Additionally, under the current, more  objective  VASRD  standards,  neither
exam could support a 20% rating under a thoracolumbar  ROM  code.   Finally,
the Board considered the 5293 code for intervertebral  disc  syndrome  which
fit with the CI’s underlying pathology.  The Board  debated  whether  a  20%
rating for ‘moderate, recurring attacks’  could  be  justified  under  5293,
based on exam  findings  and  the  activity  modifications  and  disruptions
secondary to the condition.  The Board could find  no  justification  for  a
“severe”  rating  under  any  of  the  above  mentioned  codes.   After  due
deliberation, considering all of the evidence  and  mindful  of  VASRD  §4.3
(reasonable doubt),  the Board recommends a separation  rating  of  20%  for
the back pain condition.  The Board  considers  the  VA’s  rating  approach,
coding and rating the CI’s back condition analogous to  favorable  ankylosis
of the entire thoracolumbar spine despite  absolutely  no  evidence  of  any
degree of ankylosis, to be a gross misapplication of the VASRD.

Other Contended Conditions (Severe Depression).  The Board acknowledges  the
presence of Major Depressive Disorder (MDD) as a currently  rated  condition
by the VA, but notes that the scope of its recommendations does  not  extend
to conditions which were not  diagnosed  or  in  evidence  at  the  time  of
medical separation.  The CI was diagnosed with severe  depression  in  March
2002, four months after separation.  The VA appropriately judged the MDD  as
secondary to the CI’s back pain condition and awarded a  compensable  rating
effective June 2002.  This condition  was  not  present  in  the  DES  file.
Therefore, the Board does not have  the  authority  under  DoDI  6040.44  to
render fitness or rating recommendations for this 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 back pain condition, the Board  unanimously
recommends a rating of 20% coded 5293 IAW VASRD §4.71a.  In  the  matter  of
the MDD condition, the Board unanimously agrees that it cannot  recommend  a
finding  of  unfit  for  additional  rating  at   separation.    The   Board
unanimously agrees that there were no other conditions  eligible  for  Board
consideration which could  be  recommended  as  additionally  unfitting  for
rating at separation.


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  |
|Back Pain Condition                               |5293        |20%     |
|COMBINED    |20%     |


The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20100216, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.





                                        Deputy Director
                                                                    Physical
Disability Board of Review
SAF/MRB
1535 Command Drive, Suite E-302
Andrews AFB, MD  20762-7002



      Reference your application submitted under the provisions of DoDI
6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2010-00093.

      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 Administration 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







                                       Director
                                       Air Force Review Boards
                                       Agency

Attachments:
1.  Directive
2.  Record of Proceedings

cc:
SAF/MRBR
DFAS-IN

PDBR PD-2010-00093




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Physical
Disability Board of Review and under the authority of Section 1554, Title
10, United States Code (122 Stat. 466) and Section 1552, Title 10, United
States Code (70A Stat. 116) it is directed that:

      The pertinent military records of the Department of the Air Force
relating to xxxxxxxxxxxx, be corrected to show that the diagnosis in his
finding of unfitness was Back Pain Condition, VASRD Code 5293, rated at
20%; rather than Chronic Low Back Pain, VASRD Code 5295, rated at 10%.






  Director

  Air Force Review Boards Agency