RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: air force

CASE NUMBER: PD1100604 SEPARATION DATE: 20060905

BOARD DATE: 20120209

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Air National Guard member, Staff Sergeant/E-5 (2A571, Aircraft Mechanic), medically separated for low back disc disease. The CI was diagnosed with degenerative disc disease (DDD) and had a history of prior back surgery (1998); and, suffered a recurrence of back pain during deployment in 2005. After redeployment he underwent a trial of conservative management, which included an L5/S1 spinal block and a series of epidural steroid injections; but, did not respond adequately to fully perform within his Air Force Specialty (AFS) or meet physical fitness standards. He was issued a temporary P4 profile and underwent a Medical Evaluation Board (MEB). Lumbosacral intervertebral disc disease was forwarded to the Informal Physical Evaluation Board (IPEB) as medically unacceptable IAW AFI 48-123. No other conditions appeared on the MEB’s submission. The IPEB adjudicated the low back condition as unfitting, rated 0%, referencing the Veterans Administration Schedule for Rating Disabilities (VASRD). The CI appealed to the Formal PEB (FPEB) and Secretary of the Air Force Personnel Council (SAFPC), which resulted in an increase of the rating to 20%. He was then medically separated with that disability rating.

CI CONTENTION: Summary: “Rating level does not reflect actual condition. Numerous errors and oversights were made by the Physical Review Board when my Air Force discharge was processed. Appropriate/required testing was not done, medical opinions were not sought from qualified medical personnel, and existing medical records were neither fully reviewed nor obtained. . . . I feel that my disability discharge proceedings were rushed in an attempt to save the government money. . . . I was not given the opportunity to contest the decision of the Board, and the severance was inequitable and unjust.” 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:

ANALYSIS SUMMARY: The Board acknowledges the CI’s assertions that errors and oversights were made in treating, documenting and rating his condition. It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to asserted service improprieties in the disposition of a case. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation. It must also judge the fairness of PEB fitness adjudications based on the fitness consequences of conditions as they existed at the time of separation. The Board also acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-connected low back condition continues to burden him. It is a fact, however, that 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. This role and authority is granted by Congress to the Department of Veterans’ Affairs (DVA). The DVA, operating under a different set of laws (Title 38, United States Code), 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. The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Thoracolumbar Spine Condition. Medical records include entries for service treatment and civilian occupational injuries related to this condition dating back to 1997; and, document a civilian L5/S1 discectomy in 1998 from which the CI recovered adequately to return to full duty. In August 2005, during a middle east deployment, the CI reported an onset of low back pain radiating to both lower extremities. The narrative summary (NARSUM) and MEB orthopedic consult link the onset to the long flight over for deployment; a civilian consult obtained during the PEB process links the onset to cargo handling during deployment. Magnetic resonance imaging (MRI) in October 2005, after redeployment, demonstrated mild degenerative changes in the thoracic and lower lumbar spine with disc space narrowing at L5/S1. An orthopedic consultant at that time opined “nonanatomic radicular symptoms and low back pain, most likely this is secondary to some degenerative disc disease and some paraspinal muscle strain that has slightly manifested as worsened symptoms.” He referred the CI to a spine specialist, who repeated the MRI and diagnosed an L5/S1 disc herniation without myelopathy, along with lumbar and thoracic sprain. The CI then underwent various medication trials and spinal injections with some relief of his lumbar pain, but continued to report thoracic pain. Another MRI completed in February 2006 noted a small central disc herniation at T10/11. The neurosurgeon (with concurrence of another neurosurgeon and a neurologist) opined that he was not a surgical candidate and recommended readjustment of medications and continued conservative management. Continued efforts at rehabilitation were unsuccessful. After appeal of his IPEB, the CI was assessed by a civilian occupational medicine provider who provided input to the FPEB. There were therefore 3 goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation. These evaluations, which include the civilian report just cited, are summarized in the chart below.

* Conceding §4.59 (painful motion).

At the MEB exam (per the NARSUM), the CI reported “severe mid back pain which radiated to his lower back and down both legs.” The SAFPC reply to the CI’s appeal cited clinical entries (in evidence) in the months preceding the NARSUM which documented significantly milder symptoms “without any documented new intervening trauma.” The NARSUM physical examination noted a full active ROM without any limitation. The examiner noted “no significant” deformity of the back or tenderness to palpation or manipulation. ROM measurements were incomplete. At the civilian evaluation, preceding the FPEB and more proximal to separation, the CI continued to report severe pain. That examiner noted a normal posture, mild tenderness without spasm or antalgic lean, and normal neurological findings; but, recorded the significantly worse ROM measurements charted above. At the nine month VA Compensation & Pension (C&P) exam, the measured ROM was minimally improved; but, was caveated by the examiner’s statement, “The accuracy of the active motion is in question for the determination of the degree of disability on this examination. He flexed to approximately 65 degrees for the rectal exam without difficulty and only would flex to a maximum of 50 degrees when doing the examination for the back ROM. In addition he had a positive Waddell’s.” The VA neurologic exam of the extremities was normal for strength, sensation and reflexes; but, VA electrodiagnostic studies suggested a L3 or L4 radiculopathy without denervation.

In deliberating the probative value of the various exams described above, the Board notes that the MEB exam was incomplete and therefore not compliant with VASRD §4.46 (accurate measurement); and, that the VA C&P examiner expressed considerable concern about the validity of his findings. The civilian exam was compliant with §4.46 and temporally closest to separation; and, therefore considered to carry the preponderance of probative value for the Board’s recommendation. The PEB and VA both applied the code 5243 (intervertebral disc syndrome) and arrived at the same 20% rating based on the ROM evidence submitted; with the PEB citing the civilian ROM measurements, and the VA citing those from the C&P examiner without deference to any concerns regarding validity. The FPEB’s AF Form 356 rating rationale and the SAFPC memorandum indicate that a rating under the VASRD formula for rating intervertebral disc syndrome based on incapacitating episodes was considered; and, the CI’s command supervisor submitted a memorandum documenting excessive work loss due to the back condition. The PEB and SAFPC both invoked the VASRD definition for incapacitating episodes which requires “bed rest prescribed by a physician and treatment by a physician;” and the Board is bound by the same definition. There is no evidentiary support for a conclusion that the periods of work loss were medically directed or supervised; and, all members agreed that no higher rating can be supported under this formula than can be achieved under the §4.71a general rating formula for diseases and injuries of the spine. There was no evidence of ratable peripheral nerve impairment in this case; since, there was no motor weakness documented, and the sensory component had no functional implications. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the thoracolumbar spine condition.

Remaining Conditions. No other conditions were contended by the CI. No other conditions were noted in the NARSUM or found elsewhere in the DES file. A right knee injury, right ankle injury, tinnitus and several other non-acute conditions were noted in the VA rating decision proximal to separation, but, were not documented 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 therefore has no reasonable 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 thoracolumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. 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, as follows:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110906 w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans' Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXXXXXXX

President

Physical Disability Board of Review

SAF/MRB

1500 West Perimeter Road, Suite 3700

Joint Base Andrews MD 20762

Dear XXXXXXXXXXXXXXXX

Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. §  1554a), PDBR Case Number PD-2011-00604

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,

XXXXXXXXXXXXXXXXXX

Director

Air Force Review Boards Agency

Attachment:

Record of Proceedings