RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX. BRANCH OF SERVICE: air force

CASE NUMBER: PD1100308 SEPARATION DATE: 20071105

BOARD DATE: 20120214

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SrA/E-4 (2A551J, Aerospace Maintenance Journeyman) medically separated for chronic low back pain. The condition began in 2006 and was not associated with a surgical indication. He did not respond adequately to treatment and was unable to perform within his Air Force Specialty (AFS) or meet physical fitness standards. He was issued an L4 profile and underwent a Medical Evaluation Board (MEB). Low back pain was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AFI 48-123. No other conditions appeared on the MEB’s submission. The PEB adjudicated the chronic low back pain condition with minimal compression fracture of L1 and congenital stenosis due to short pedicles as unfitting, rated 10% IAW the Veterans Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated with a 10% disability rating.

CI CONTENTION: The CI states: “Lumbar strain/right sciatica associated with lumbar strain have not diminished over the years since Mr. K--- was removed from service. Symptoms of injury have remained consistent and in some cases became worse with increased activity. Upon being released from active duty Mr. K--- remained out of the work force for an additional six months while attending chiropractic and physical therapy. Mr. K--- has spent time seeing massage therapists as well. In November 2009 Mr. K--- was volunteering at a greenhouse for teen criminals and was injured. Mr. K--- received medication from the VA which resulted in adverse reactions to the medication resulting in hospitalization. When I was 15 years old I attended vocational classes for three years to become an aircraft mechanic. After 9/11 I entered service. I hurt myself on the job and it became apparent that I could no longer follow a career in the aircraft maintenance field as I had wished for my future. I have spend [sic] years out of the military and my condition has not improved and has only became [sic] worse over time in most cases. I take it easy physically and have not found a career that suits my conditions. This injury has greatly affected my life and future. I appreciate the opportunity to have my records reviewed in this forum.” He additionally lists all of his VA conditions and ratings as per the rating chart below. A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:

*Right knee patellofemoral syndrome initially rated 0%, increased to 10% effective 26 January 2010

**Combined rating Increased to 40% effective 26 January 2010 with addition of right ulnar neuritis at 10%

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. The Board also acknowledges the CI's contention suggesting that service ratings should have been conferred for other conditions documented at the time of separation and for conditions not diagnosed while in the service (but later determined to be service connected by the DVA). While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. The DVA, however, is empowered to compensate service connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Low Back Condition. After performing strenuous lifting at work in February 2006, the CI developed low back pain with radiation to the right lower extremity. There were two goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation. Both of these exams are summarized in the chart below.

The narrative summary (NARSUM) examiner (27 July 2007) reported that symptoms were intermittent and allowed the CI to stay active. He was able to swim and run up to two miles. Knee boarding, hopping and twisting activities exacerbated the pain while resting or lying down alleviated it. Examination showed normal toe, heel and tandem gait. The spine was non-tender. Sensation, strength and deep tendon reflexes (DTR) were normal. Spinal contour, painful motion and straight leg raise (SLR) testing were not mentioned, but a concurrent outpatient note (8 June 2007) documented the absence of lumbar muscle spasm, non-painful spinal motion and a negative SLR. X-rays showed lumbar scoliosis (developmental condition; no muscle spasm present at time of x-ray), but there was disagreement between physicians about the presence of an L1 minimal compression fracture. Magnetic resonance imaging (MRI) showed minimal congenital stenosis and minimal L5-S1 central disc bulge that resulted in neuroforaminal abutment, but no compression fracture. A physical therapy assessment (9 August 2007) reported that the CI was currently asymptomatic. A normal gait with normal spinal contour was observed. Lumbosacral muscle strength testing was performed without pain. The ROM measurements obtained for the PEB at this exam did not include right or left lumbar rotation, thus an accurate combined ROM could not be calculated. Extension was 25⁰ (normal to 30⁰), right lateral flexion 20⁰ (normal 30⁰) and left lateral flexion 25⁰ (normal 30⁰). The VA Compensation and Pension (C&P) examiner, six months after separation, reported persistent soreness, aching and tenderness. Associated right leg pain occurred occasionally. Incapacitating episodes during the prior year were denied. Examination revealed normal ambulation and normal sensation and strength. Some pain at extremes of ROM was noted but no change with repetitive use was evident. Some right sided back tenderness was present. The PEB and VA chose different coding options for the condition, but this did not bear on rating. The absence of rotational measurements on the MEB exam did not affect the PEB’s determination because completely absent or completely normal rotations still resulted in a combined ROM that justified a 10% rating (i.e. between 120⁰ and 235⁰). The VA based its 10% rating decision on likely application of §4.40 (pain with use) or §4.59 (painful motion), since ROM assessments by the C&P examiner were normal. The Board considered if the mild lumbar scoliosis in evidence on x-ray warranted a higher rating, but noted that this finding was not secondary to muscle spasm as required under the 20% rating, but was more likely a developmental condition. The Board also considered whether a higher rating could be achieved under the formula for rating intervertebral disc disease based on incapacitating episodes. However, not even the minimum rating under that formula was met. The Board further deliberated if additional disability was justified for radiculopathy in this case. The VA assigned a 10% rating for right sciatica based on the occurrence of occasional radiation of pain to the right lower extremity. However, the presence of functional impairment with a direct impact on fitness is the crucial factor in the Board’s decision to recommend any condition for rating as additionally unfitting. While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” The lower extremity pain components in this case have no functional implications. There was no motor impairment that could be linked to any functional deficit or limitation of specific physical requirements. The condition was not profiled and was not identified as an impairment in the commander’s statement. The Board therefore concludes that additional disability rating was not justified on this basis. All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s rating decision for the low back pain condition.

Other Contended Conditions. The CI’s application suggests that compensable ratings should be considered for right knee patellofemoral pain syndrome, tinnitus and right ulnar neuritis. All of these conditions were reviewed by the action officer and considered by the Board. There was no evidence for concluding that any of the conditions interfered with duty performance to a degree that could be argued as unfitting. The Board determined therefore that none of the stated conditions were subject to service disability rating.

Remaining Conditions. No other conditions were noted in the NARSUM, identified by the CI on the MEB physical or found elsewhere in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board thus has no basis for recommending any additional unfitting conditions for separation rating.

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 chronic low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the right knee patellofemoral pain syndrome, tinnitus and right ulnar neuritis conditions or any other medical conditions eligible for Board consideration, the Board unanimously agrees that it cannot recommend any findings 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 therefore recommends that there be no recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110420, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans' Affairs Treatment Record

xxxxxx

President

Physical Disability Board of Review

SAF/MRB

1500 West Perimeter Road, Suite 3700

Joint Base Andrews MD 20762

Dear xxxxxxxxxxxxx:

Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. §  1554a), PDBR Case Number PD-2011-00308

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,

xxxxxxxxxxx

Director

Air Force Review Boards Agency