RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXX BRANCH OF SERVICE: air force

CASE NUMBER: PD1100882 SEPARATION DATE: 20090626

BOARD DATE: 20120529

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Staff Sergeant / E-5 (2E051/Ground Radar Systems Journeyman), medically separated for chronic myofascial back pain. The CI did not respond adequately to treatment and was unable to meet physical fitness standards. She was placed on a duty limiting profile and underwent a Medical Evaluation Board (MEB). Chronic 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 myofascial back pain condition as unfitting, rated 20%, with application of the Veterans Administration Schedule for Rating Disabilities (VASRD). Additionally, the PEB determined that a pain disorder associated with mood disorder with mild military impairment was a category II condition, a condition that can be unfitting, but which is not currently compensable or ratable. The CI appealed to Formal PEB (FPEB) for return to duty contending she was fit. The FPEB upheld the findings of the PEB. The CI appealed to the Secretary of the Air Force Personnel Council (SAFPC) for a higher rating. The SAFPC upheld the findings of the previous boards and the CI was medically separated with a 20% combined disability rating.

CI CONTENTION: “Unfitting conditions which are compensable and ratable are not considered under the USAF disability rating award. Ongoing medical and mental disability.”

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The chronic myofascial back pain condition requested for consideration and the not unfitting pain disorder associated with mood disorder with mild military Impairment condition meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed below. The other requested conditions are not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Air Force Board for the Correction of Military Records (BCMR).

RATING COMPARISON:

ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. 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 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 nor for conditions determined to be service-connected by the Department of Veterans’ Affairs (DVA), but not determined to be unfitting by the PEB. However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all 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’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.

Chronic Myofascial Back Pain Condition. There were two goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation.

* Conducted by Neuromusculoskelatal Clinic (physical therapy).

The CI had chronic myofascial back pain beginning in early 2006 that was aggravated by a motor vehicle crash in January 2008. Imaging was unremarkable. She was referred for MEB due to a physical profile preventing overseas assignment. At the time of a physical therapy (neuromusculoskeletal clinic) evaluation on 10 April 2008, active ROM was “WNL in all planes.” The MEB narrative summary (NARSUM), dated 30 July 2008, recorded persisting back pain with plans for continued therapy with goals for improvement and removal of any restrictive profile. On examination there was tenderness. ROM was “full,” gait was normal, and the neurologic examination normal (strength, reflexes, sensation). A ROM examination by physical therapy on 28 August 2008 is recorded in the table. The PEB, on 19 November 2008, adjudicated a 20% rating based on this ROM examination in accordance with the VASRD (which was affirmed by subsequent appeals). At a follow up appointment on 30 December 2008, the CI reported, “she is currently doing all aspects of physical training and is participating in activities such as volleyball without her pain interfering. She states her pain is typically a 4/10.”

At the VA Compensation and Pension (C&P) examination performed on 21 October 2009, 4 months after separation, the ROM was improved, and supported the 10% rating adjudicated by the VA. The Board directs attention to its rating recommendation based on the above evidence. Board members agreed the ROM examination performed on 28 August 2008 supported the 20% rating adjudicated by the PEB. The Board notes that all other ROM examinations more nearly approximated the 10% rating. There was no evidence of incapacitating episodes due to intervertebral disc disease that would meet the criteria for a minimum rating under the alternative formula for incapacitating episodes due to intervertebral disease. There was no evidence of ratable peripheral nerve impairment in this case. 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 chronic myofascial back pain condition. The Board concluded therefore that this condition could not be recommended for additional disability rating.

Contended PEB Conditions. The other condition forwarded by the MEB and adjudicated as not unfitting by the PEB was pain disorder associated with mood disorder with mild military impairment. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

The psychiatry NARSUM dated 15 September 2008 summarized the symptoms the CI was experiencing and for which she was receiving treatment throughout 2007 and 2008. Although the psychiatrist estimated there was occupational impairment, the commander’s letter dated 12 August 2008, reported the CI was performing duties satisfactorily despite her physical condition and made no mention of problems with performance relating to anxiety or mood disorder. Performance reports reflected excellent duty performance, including the final performance report for the period 1 April 2008 to 31 March 2009 which documented excellent duty performance in her Air Force Specialy. The condition was not profiled, implicated in the commander’s statement or judged to fail retention standards. The condition was reviewed by the action officer and considered by the Board. There was no indication from the record that this condition significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition; and, therefore, no additional disability ratings can be recommended.

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. In the matter of the chronic myofascial back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended pain disorder associated with mood disorder condition, the Board unanimously recommends no change from the PEB determination as not unfitting. There were no other conditions within the Board’s scope of review for consideration.

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 20110916, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

President

Physical Disability Board of Review

SAF/MRB

1500 West Perimeter Road, Suite 3700

Joint Base Andrews MD 20762

XXXXXXXX

Dear XXX

Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. §  1554a), PDBR Case Number PD-2011-00882

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