RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: AIR FORCE
CASE NUMBER: PD1200416 SEPARATION DATE: 20050318
BOARD DATE: 20121204
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SSGT/E-5 (2W071/Munitions Systems Craftsman),
medically separated for chronic low back pain (LBP). The CI stated that he injured his back from
a fall down a flight of stairs in January 2004. Despite narcotic medications, non steroidal anti
inflammatory drugs (NSAIDS), neurosurgery consults, physical therapy (PT) and a
transcutaneous electrical nerve stimulation (TENS) units. The CI failed to meet the physical
requirements of his Air Force Specialty (AFS) or satisfy physical fitness standards. The CI was
issued a permanent P4U4L4 profile and referred for a Medical Evaluation Board (MEB). The
MEB forwarded right knee degenerative joint disease(DJD), painful hydrocele, hyperlipidemia,
irritable bowel syndrome (IBS), periodic limb movements, mild obstructive sleep apnea (OSA),
major depressive disorder (MDD) with anger management issues, benign thyroid nodules,
history of right knee arthroscopy for medical issues, history of hypertrigliceridemia, resolved to
the Physical Evaluation Board(PEB). The PEB adjudicated the chronic LBP condition as unfitting,
rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) and
Department of Defense Instructions (DoDI). The PEB also adjudicated DJD Right knee, status
post (s/p) arthroscopy surgery, post surgical hypothyroidism, IBS, and mild OSA associated with
periodic limb movements as Category II (Conditions that can be unfit, but not compensable or
ratable) and hyperlipidemia Category III (Conditions that are not separately unfit,
compensable or ratable). The CI made no appeals, and was medically separated with a 10%
disability rating.
CI CONTENTION: I believe the original rating of 10 % was too low. The Air Force has stated,
according to AF form 356 OCT 95, that the only condition that was rateable (sic) was the lower
back issues. They did not rate the Degenerative Joint Disease of right knee, and spinal injuries
to my neck for which I still have the MRI copies). When I was discharged, I was lead believe
that I was evaluated for my neck and lower back degenerative disk disease, but according to the
AF 356 the neck injuries are not even listed. Both of the spinal injuries contributed to the
inability to run which is why they said I was unfit to continue in the AF. I believe if one federal
agency (VA) states 60% disability the other should be close to that rating.
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 not unfitting right knee condition as
requested for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview
and is addressed below, in addition to a review of the rating for the unfitting chronic LBP
condition. The neck condition is not within the Boards purview. Any conditions or contention
not requested in this application, or otherwise outside the Boards defined scope of review,
remain eligible for future consideration by the Air Force Board for Correction of Military
Records.
RATING COMPARISON:
Service IPEB Dated 20050203
VA (2 Wks. Pre-Separation) All Effective Date
20050319
Condition
Code
Rating
Condition
Code
Rating
Exam
Chronic LBP
5243
10%
Diffused Disc Herniation
T-Spine
5243
10%
20050301
Right Knee DJD S/P
Arthroscopy
Category II
S/P Right Knee Surgery
5299-
5259
0%
20050301
Hypothyroidism S/P
Surgery
Category II
Hypothyroidism
7903
10%
20050301
IBS
Category II
IBS
7319
0%
20050301
Mild OSA with Limb
Movements
Category II
OSA
6847
30%
20050301
Hyperlipidemia
Category III
No Corresponding VA Entry
20050301
.No Additional MEB/PEB Entries.
Cervical Strain
5237
10%
20050301
CTS, Lt Wrist
8515
10%
20050301
CTS, Rt Wrist
8515
10%
20050301
0% X 4 (Includes Above) / Not Service-
Connected x 3
20050301
Combined: 10%
Combined: 60%*
*Original VARD 20050407 granted combined rating @30%. Charted conditions / ratings based
on VARD 20060919 after De Novo Review by DRO.
ANALYSIS SUMMARY: The Board acknowledges the CI's contention suggesting that ratings
should have been conferred for other conditions documented at the time of separation, some
of which were evaluated and determined not to be individually unfitting for continued service.
The Board wishes to clarify that it is subject to the same laws for disability entitlements as
those under which the Disability Evaluation System (DES) operates. The Disability Evaluation
System (DES) is responsible for maintaining a fit and vital fighting force. While the DES
considers all of the member's medical conditions, compensation can only be offered for those
medical conditions that cut short a members career, and then only to the degree of severity
present at the time of final disposition. However the Department of Veterans Affairs (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 Veterans disability rating should his degree of impairment vary
over time. The Board notes the current DVA ratings listed by the CI for all of his service-
connected conditions, but must emphasize that its recommendations are premised on severity
at the time of separation. The DVA ratings which it considers in that regard are those rendered
most proximate to separation. 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. The Board is empowered to evaluate the fairness of fitness
determinations, and to make recommendations for rating of conditions which it concludes
would have independently prevented the performance of required duties (at the time of
separation). The Boards threshold for countering MDES 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.
Chronic LBP Condition. There were two range-of-motion (ROM) evaluations in evidence, with
documentation of additional ratable criteria, which the Board weighed in arriving at its rating
recommendation; as summarized in the chart below.
Thoracolumbar ROM
MEB ~4.5 Mo. Pre-Sep
VA C&P ~ 17 Days Pre-
Sep
Flexion (90° Normal)
Limited
90°
Ext (0-30)
Limited
30°*
R Lat Flex (0-30)
Mild Pain
30°
L Lat Flex 0-30)
Mild Pain
30°
R Rotation (0-30)
Not Noted
30°
L Rotation (0-30)
Not Noted
30°
Combined (240°)
unk
240°
Comment:
MRI diffuse disc bulge,
moderate neuro
foraminal narrowing, mild
central canal narrowing
L4-5/early facet
osteoarthritis L4-S1
Limited ROM due to pain;
tenderness to palpation
(TTP); gait nml states cannot
do heel walking due to poor
balance; motor/sensory
intact
*Pain significant but not
limiting ROM; Gait nml;
no assistive device
needed; * with DeLuca
applied
§4.71a Rating
10%
10%
The CI had lumbar spine pain with TTP from L1-to S1 and left lower extremity straight leg pain
which caused radiation through the left buttocks and thigh. A magnetic resonance imaging
(MRI) exam performed in April 2004 demonstrated diffuse disc bulge with moderate neuro
foraminal narrowing at L4-5 and early facet osteoarthritis at L4-S1. The Neurosurgery
examination indicated negative exam findings and the examiner opined that there was no
surgical intervention warranted. The MEB examination 4.5 months prior to separation noted a
response failure to intravenous narcotics (IV Morphine) and a narcotic patch (Fentanyl);
occasional paresthesias in the lower extremities and pain with any bending or any jarring
movement; and pain with movement during the night. The MEB exam findings are summarized
in the chart above. The commanders statement indicated that the CI could not bend at the
waist and consistently lift fifty pounds. The VA Compensation & Pension(C&P) examination 17
days prior to separation noted functioning with the use of medication, sharp daily non-radiating
pain, no periods of incapacitation; however there was a functional impairment of an inability to
do any significant bending or lifting. The VA C&P exam findings are in the chart above.
The Board directs attention to its rating recommendation based on the above evidence. The
PEB and the VA chose the same disability code 5243 (Intervertebral disc syndrome) and both
rated at 10%. The VA initially rated the LBP condition 0%; however the September 2006 VARD
Decision Review Officer (DRO) De Novo decision increased the disability rating to 10% with
additional application of DeLuca criteria. The General Rating Formula for Diseases and Injuries
of the Spine considers the CIs pain symptoms with or without symptoms such as pain
(whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of
injury or disease. There was no evidence of fixed neurologic deficit impacting duty
performance. All exams proximate to separation met the 10% rating criteria for localized
tenderness not resulting in abnormal gait or abnormal spinal contour, or for painful motion
IAW VASRD §4.59. 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 LBP condition.
Contended PEB Conditions. The contended condition adjudicated as not unfitting by the PEB
was right knee DJD, s/p arthroscopy surgery. The Boards first charge with respect to these
conditions is an assessment of the appropriateness of the PEBs fitness adjudications. The
Boards 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 CI injured his right knee by twisting the knee as he was getting up from a lying to standing
position approximately 7 years prior to separation and underwent a partial medial
menisectomy at that time. Worsening symptoms led to a MRI documenting chondromalacia
and indeterminate finding of a medial meniscus tear or scar. The MEB examination was prior to
surgery and noted chronic right knee pain associated with popping and cracking. The physical
exam findings are in the chart below (MEB exam before surgery) and the examiner indicated an
orthopedic consult was pending. The CI subsequently underwent a second arthroscopic surgery
with medial meniscus trimming and debridement prior to separation. Operative reports and
follow on notes indicated an acute meniscal tear. The commanders statement was post-
surgery and indicated that the CI missed a substantial amount of duty due to surgeries and
recuperation time and could not lift fifty pounds consistently.
Right Knee ROM
MEB ~4.5 Mo. Pre-
Sep*
VA C&P 17 days Pre-
Sep
Flexion (140°
Normal)
Not Recorded
140°
Extension (0°
Normal)
Not Recorded
0°
Comment:
Surgery 5 Mo. Pre-
Sep
*Positive crepitus
on patellar grind;
mildly atrophied
medial
compartment
Crepitus throughout
ROM; no pain on
motion
§4.71a Rating
10% (PEB Category
II)
10% (VA 0%)
*MEB exam was prior to repeat surgery (although NARSUM post-dated
surgery date). Surgery noted in NARSUM Addendum without knee
exam.
The C&P exam 17 days prior to separation noted a diagnosis of DJD right knee; a functional
impairment of inability to perform functions that required bending the knee and a loss of
twenty days of work due to the right knee pain. The C&P physical exam findings are noted in
the chart above.
The Board deliberated if the right knee condition was unfitting given the chronic knee pain and
continued accomplishment of AFSC duties. The CIs unfitting LBP condition and the knee pain
may have exacerbated each other. Offsetting this was a significant worsening of symptoms and
an additional knee surgery. However, it appeared that the knee condition exacerbation
occurred during the MEB processing. Right knee surgery was noted in the NARSUM addendum,
without a detailed exam of the knee, and the VA exam was post-surgery and pre-separation.
Although there was some reasonable doubt, the evidence that the right knee was not unfitting
upon entry into the MEB process and that the knee exam improved following surgery during
the DES process, the preponderance of the evidence was that there was only temporary duty
impairment with expected improvement following surgery. 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 right knee
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. In the matter of the
chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change
in the PEB adjudication. In the matter of the contended right knee condition, the Board
unanimously recommends no change from the PEB determination as not unfitting. There were
no other conditions within the Boards scope of review for consideration.
RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of
the CIs disability and separation determination, as follows:
UNFITTING CONDITION
VASRD CODE
RATING
Chronic LBP
5243
10%
COMBINED
10%
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120509, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record
xxxxxxxxxxxxxxxxxxxx, DAF
President
Physical Disability Board of Review
SFMR-RB
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB / xxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for xxxxxxxxxxxxxxxxxxxxxxx, AR20130006257 (PD201201416)
I have reviewed the enclosed Department of Defense Physical Disability Board of
Review (DoD PDBR) recommendation and record of proceedings pertaining to the
subject individual. Under the authority of Title 10, United States Code, section 1554a,
I accept the Boards recommendation and hereby deny the individuals application.
This decision is final. The individual concerned, counsel (if any), and any Members of
Congress who have shown interest in this application have been notified of this decision
by mail.
BY ORDER OF THE SECRETARY OF THE ARMY:
Encl xxxxxxxxxxxxxxxxxxxxxx
Deputy Assistant Secretary
(Army Review Boards)
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