RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: AIR FORCE

CASE NUMBER: PD100401 BOARD DATE: 20100728

SEPARATION DATE: 20060828

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SUMMARY OF CASE: This covered individual (CI) was a E-5/Staff Sergeant, Vehicle Operations Craftsman medically separated from the Air Force in 2006 after 8 years of service. The medical basis for the separation was Low Back Pain. The CI was referred to the Physical Evaluation Board (PEB), determined unfit for the Back Condition, and separated at 10% disability using the Veterans Affairs Schedule for Rating Disabilities (VASRD) and applicable Air Force and Department of Defense regulations.

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CI CONTENTION: The CI states: “I am respectfully requesting a review of my discharge disability rating that I was assigned issued upon my discharge from the Air Force in August 2006. I was discharged as Honorable Disability with severance pay. As far as I can tell, I have no disability rating upon being discharged. I currently receive compensation from the VA with a rating of 40%. My medical discharge was due to my status post fusion (3 back surgeries 2004-2005) and degenerative Disc Disease. I believe that I should have been rated to retire when I was discharged. I tried to gain employment but failed. I have also been deemed disabled by Social Security. I have been paying back the VA for my severance pay since my original award date, and will be done re-paying in 2011. I have several service connected disabilities that can be found in VA Medical records, the three major ones are 40% status post fusion DDD, 50% PTSD anxiety disorder, and a pending compensation rating, VA confirmed diagnosis of a mild Traumatic Brain Injury (TBI). MY DDD has moved to my cervical spine C4, C6 and has caused nerve impingement, pain and an increase in migraines. There are current MRI’s on file at the Wichita VA that show significant scarring and damage to nerves in my lower back. I am requesting a review of my file and my discharge rating decision because I am only 30 years old and I have a long road ahead of me. --it is full of assorted therapies for my body and mind. I have been deemed disabled and unemployable by 2 different government agencies. I am asking for a fair and just rating to retire me please. I entered the Air Force at the age of 18, healthy and with every intention of making a career out of the Air Force. Thank you for all of your time and consideration.”

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RATING COMPARISON:

Service PEB	VA (Same Month as and 6 Months After Separation)
Condition	Code	Rating	Date	Condition	Code	Rating	Exam	Effective
Low Back Pain	5241	10%	20060714	Low Back Pain	5241	40%	20060810	20060828
		NARSUM	Surgical Scar Status Post Lumbar Laminectomy	7804	10%	20070208	20060828
		Not in DES	Post Traumatic Stress Disorder (PTSD)	9411	30% 50%	20070208 20081028	20060828 20080829
		Not in DES	Tinnitus	6260	10%	20060817	20060828
		Not in DES	Surgical Scar Anterior Abdominal Area	7804	10%	20070208	20060828
		Not in DES	Allergic Rhinitis	6522	0%	20070608	20060828
TOTAL Combined: 10%	TOTAL Combined (Includes Non-PEB Conditions): 70% from 20060829 80% from 20080829 Individual Unemployability granted 20081230

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ANALYSIS SUMMARY:

Back Pain

The CI had a five year history of back pain and had three back surgeries. She had a Laminectomy and Discectomy at L4-5 and L5-S1 20040707, Revision Laminectomy and Discectomy at the same sites 20050112, and Spinal Fusion 20051108.

The CI's back pain initially started shortly after the birth of her son in March of 2000. While deployed she continued to have pain and it eventually worsened. In September 2003 she was referred to orthopedics and a complete work-up including X-rays, bone scans, and Magnetic Resonance Imagings (MRIs) documented degenerative disc disease as well as impingement of the nerves at the L4-L5 and L5-S1. She was treated with epidural steroid injections but had severe side effects including leg weakness and hives. The treatment was discontinued after two injections. When her pain continued she had her first surgery, laminectomy and discectomy at L4-5 and L5-S1 in July 2004. Her postoperative course was complicated by a seizure attributed to a reaction to nausea medication. Despite physical therapy, she continued to have symptoms after surgery and a revision was done in January 2005. She then moved to a new base and was evaluated by another orthopedic surgeon who recommended lumbar fusion. She saw another surgeon who also recommended the fusion and it was done in November 2005. She appeared to do well with physical therapy after surgery and returned to a four hour workday with a restrictive profile in February 2006. However she continued to have significant back pain and was not able to perform her regular duties or progress to work more than four hours a day.

As shown in the chart below, the CI’s thoracolumbar range-of-motion (ROM) was improved after her third surgery in November 2005. In April and May of 2006 she had near normal flexion on three exams performed by two different providers. This was three and four months prior to separation from service in August 2006. At the VA Compensation and Pension (C&P) examination approximately six months after separation from service, her ROM was significantly more limited. It appears her condition worsened after she separated. Although the range of motion exams from April and May 2006 do not include all the measurements, flexion was consistently documented at slightly less than 90 degrees. The exams were done on separate days by two different providers. Also the measurements did show improvement over those done in 2004 and 2005.

However, the Board must rate her condition as it was when she separated from service. At the time of separation from service, more likely than not, her thoracolumbar flexion was less than 90 degrees but not 60 degrees or less based on the preponderance of evidence available.

Separated 20060828; surgery April 2004, January 2005, and November 2005; birth in Oct 2007

Thoraco-lumbar ROM	Normal	PT 20041029	MEB 20050526	Progress Note 20060411	NARSUM 20060503	PT 20060504	VA C&P 20070208	VA C&P 20090227
Flexion	90	30	5	About a little less than 90	About 90	Fingers to ankles	20, pain at 18 (20)	38, pain at 20
Extension	30	15	0		About 5		7, pain at 7 (5)	20 pain
Right Lateral Flexion	30	30			Not Measured		9, pain at 6 (5) (Decreased to 6 with repeated motion)	20 pain
Left Lateral Flexion	30	30			Not Measured		9, pain at 7 (5)	25 pain
Right Lateral Rotation	30			Able to rotate	No problems or increased pain		16, no pain (15)	25 pain
Left Lateral Rotation	30			Able to rotate	No problems or increased pain		20, no pain (20)	25 pain
Total	240				(95-205)		70	135
		Guarding and muscle spasm	Antalgic gait		Ambulating with steady gait; tender to palpation; reflexes 2+; scar well healed; reflexes 2+; back pain 4/10		Normal gait; no guarding or spasm; normal posture; motor 5/5 bilateral; motor 5/5 bilateral; decreased light touch and pinprick in LEFT: lat aspect of thigh and tip of great toe and RIGHT: tip of great toe; Reflexes 2+ bilateral	No increase in symptoms with repeated motion
§4.71a Rating		0%			10%		40%

Other Conditions

Surgical Scar Status Post Lumbar Laminectomy

No evidence this condition was unfitting. No interference with required duties. No duty restrictions attributable directly to this condition.

Other Conditions Not in the Disability Evaluation System (DES):

Post Traumatic Stress Disorder (PTSD); Tinnitus; Surgical Scar, Anterior Abdominal Area; and Allergic Rhinitis

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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. After careful consideration of all available information the Board unanimously determined that the CI’s back condition is most appropriately rated as 10% for 5241 Low Back Pain.

Although a VA C&P examination done six months after separation documented thoracolumbar range of motion (ROM) limited to a compensable level, the preponderance of evidence demonstrates that prior to separation from service the CI’s ROM limitation, more likely than not, was less than the minimal compensable level. It appears that her condition worsened after she separated. However, VASRD §4.59 Painful Motion notes that the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Therefore a 10% rating should be applied.

The Board also considered the condition of Surgical Scar Status Post Lumbar Laminectomy and unanimously determined that this condition was not unfitting at the time of separation from service and therefore no disability rating is applied. This condition did not interfere with performance of any required duties and no duty restrictions were attributable to this condition.

The other diagnoses rated by the VA (Post Traumatic Stress Disorder (PTSD); Tinnitus; Surgical Scar, Anterior Abdominal Area; and Allergic Rhinitis) were not mentioned in the Disability Evaluation System (DES) package and are therefore outside the scope of the Board. The CI retains the right to request her service Board of Correction for Military Records (BCMR) to consider adding these conditions as unfitting.

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RECOMMENDATION: The Board therefore recommends that there be no recharacterization of the CI’s disability and separation determination.

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The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20100407, 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-2010-00401.

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 with severance pay.

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

Director

Air Force Review Boards Agency

Attachment:

Record of Proceedings

cc:

SAF/MRBR

Whichita VFW