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AF | PDBR | CY2012 | PD2012 00378
Original file (PD2012 00378.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXX BRANCH OF SERVICE: AIR FORCE
CASE NUMBER: PD1200378 SEPARATION DATE: 20080107
BOARD DATE: 20120919


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPT/O-3 (46NX/Clinical Nurse), medically separated for chronic low back pain (LBP) with radicular pain left leg, status post hemilaminectomy and diskectomy of L5-S1. Despite surgery, physical therapy (PT) treatment, non-steroidal anti inflammatory drugs (NSAIDS), narcotics and steroidal injections, the CI was unable to perform within his Air Force Specialty (AFS) or satisfy physical fitness standards. He was issued a temporary L4 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded Chronic LBP as the only condition to the Physical Evaluation Board (PEB). The PEB adjudicated the LBP with left leg radicular pain condition as unfitting, rated 10% with application of Department of Defense Instruction (DoDI) 1332.39 and the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI appealed to the Formal PEB (FPEB), which added a Category II (can be unfit, but not compensable/ratable) condition of paroxysmal atrial fibrillation; but did not change the unfitting or rating. The CI appealed to the Secretary of the AF level, but withdrew his appeal. The CI was then medically separated the CI with a 10% disability rating.


CI CONTENTION: “When I appeared before the Physical Evaluation Board (PEB) in 2006, several medical conditions existed and were documented, and another problem was still being evaluated at that time. I was informed by a Board Member that they would only consider the one issue that made me unfit for continued duty. I attempted to explain that I had improved considerably, and would likely continue to improve with time. I also attempted to explain that due to the pain of my back injury, and the resulting nerve damage, I was unable to pass the Run portion of the Fitness Test. I was then administered the Cycle Ergonometric test, better known as the "Bike Test"; which I failed. However, during that time period, I was diagnosed with a cardiac problem, and ultimately diagnosed with Paroxysmal Atrial Fibrillation, which causes periods of rapid heart rate, and extra beats at any given time, especially under stress conditions. The Cycle's Heart Rate detection software was not designed to differentiate between regular heart beats and abnormal ones, and counted higher heart rates that resulted in a failed test. That failed PT test triggered my being sent before the MEB, and subsequently, the PEB. I advised the Board that I was a Registered Nurse, and a mid-career Captain, and the USAF was extremely short of nurses. I stated that, given time, I felt I would recover from my injuries to the point that the pain medications would no longer be needed, and I would be able to perform all duties without restriction. I also advised the board that the Atrial Fibrillation appeared to be controlled as well. I attempted to convince them that I still had value to the USAF, and to consider the Temporary Retirement Disability Program (TDRL), to allow the medical issues to stabilize, and then be re-evaluated, as the TDRL was intended for that very purpose. But the PEB was not swayed by my pleas or explanations. It appeared they had already made their decision, and recommended Separation instead.”


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 paroxysmal atrial fibrillation condition requested for consideration and the unfitting back condition with left leg radicular pain meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed below. The remaining conditions rated by the VA at separation and listed on the DA Form 294 application 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 Correction of Military Records.


RATING COMPARISON:

Service FPEB – Dated 20070803
 VA (6 Mos. Pre -Separation) – All Effective Date 20080108
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain w/ Radicular Pain Left Leg 5241 10% Intervertebral Disc Syndrome w/ … Arthritic Changes 5242-5243 10% 20070702
Radiculopathy, Left Lower Extremity 8523 10% 20070702
Paroxysmal Atrial Fibrillation Category II Atrial Fibrillation 7099-7010 0%* 20070702
↓No Additional MEB/PEB Entries↓
 DJD Rt Knee 5260-5010 10% 20070702
DJD, AC Joint, Rt Shoulder 5203-5010 10% 20070702
DJD, Lt Knee 5260-5010 10% 20070702
Hypertension 7101 10% 20070702
Adjustment Disorder w/ Depressed Mood 9434-9440 10% 20070709
0% X 1 / Not Service-Connected x 1 20070702
Combined: 10%
 Combined: 50%
* Decision Review Officer (DRO) Decision dated 20100312 changed initial NSC determinations to the above rating. Gastro esophageal reflux disease (GERD) was added with a 0% rating effective 20080221; K idney stone was added with a 10% rating effective 20081112 (combined 60%).


ANALYSIS SUMMARY: The Board acknowledges the CI’s assertions that TDRL was not given consideration in his case. It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s statements in the application regarding suspected service improprieties in the processing of his 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.

Chronic Low Back Pain w/ Radicular Pain Left Leg Condition. There were two range-of-motion (ROM) evaluations in evidence, and one evaluation without ROMs with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation, as summarized in the chart below.














“
Thoracolumbar ROM
PT ~10 Mo. Pre-Sep
 MEB ~9 Mo. Pre-Sep VA C&P ~6 Mo. Pre-Sep Neuro. ~6 Mo. Pre-Sep
Flexion (90⁰ Normal)
70⁰ with pain
 Referenced PT Exam 70⁰ pain at 65⁰ No ROMs
Ext (0-30)
15⁰
 25⁰ pain at 20⁰
R Lat Flex (0-30)
30⁰
 25⁰ pain at 20⁰
L Lat Flex 0-30)
30⁰
 25⁰ pain at 20⁰
R Rotation (0-30)
20⁰
 25⁰ pain at 20⁰
L Rotation (0-30)
20⁰
 25⁰ pain at 20⁰
Combined (240⁰)
185⁰
 195⁰
Comment: Surgery ~20 Mo. Pre-Sep
 “left lower extremity weakness was observed” 4-/5 dorsiflexion & plantar flexion; left ankle reflex decreased 1+ (right normal) diminished / nearly absent left ankle jerk reflex”; slight decreased sensation dorsal surface left foot (S1 distribution); -SLR; no spasm Gait normal; no spasm; + tenderness; -SLR; Radiating pain on movement back to left leg; L5 & S1 left side sensory deficit (dorsal foot, lateral leg) and motor weakness ( great toe , plantar flexion ) No tenderness; slight dorsiflexion weakness left great toe and foot; some numbness in R. and L. calf areas ; decreased L. ankle jerk
§4.71a Rating
 10% 10% 10% -
§4.124 Rating (Nerve)
 10% 10% 10% 10%

The narrative summary ( NARSUM ) , dated 9 months prior to separation, indicated t he CI’s back and left leg symptoms were decreased following back surgery ( L5-S1 hemilaminectomy and diskectomy, 20 months pre-separation ). The CI had occasional lower back pain with some left leg radiculopathy , primarily increased with running. The CI was using Neurontin for pain control with (with some adverse side effects) and infrequent use of Flexeril and Tramadol (muscle medications). Exams of the back, ROMs and left lower leg peripheral nerve findings are summarized above ( narrative [ NARSUM ] and referenced PT evaluation).

The VA Compensation & Pension (C&P) examination , dated 6 months prior to separation, noted constant burning, sharp, cramping aching localized LBP with or without activity, stiffness and weakness, relieved by rest and medication. The CI ha d a functional impairment of inability to stand, walk or sit for prolonged periods. There was no history of incapacitating episodes. The exam is summarized above with the examiner stating “ deep peroneal nerve was most likely involved. ” Radiographs showed degenerative arthritis, thoracolumbar scoliosis and post surgical changes.

A Neurology evaluation performed 6 months pr ior to separation indicated subjective improvement of symptoms with return of sensation over the dorsum of the foot and return of strength “but if he gets tired … may become a little bit weak.” The exam did not include ROM evaluation and is summarized above with exam findings of left lower leg neurologic deficits (slight weakness , numbness and diminished reflex ) .

The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the c hronic l ow b ack p ain w/ r adicular p ain l eft l eg condition as 5241 Spinal fusion and rated 10% as the single unfitting and solely rated condition . The VA coded the condition as 5242 -5243 Degenerative A rthritis with i ntervertebral disc syndrome rated at 10% and a separate l eft l ower e xtremity radiculopathy as 8523 ( Anterior T ibial N erve ( D eep P eroneal) N erve C ode) and rated at 10% .

Although the PEB single code approach complies with the VASRD for pain-only radiculopathy, the CI had non-pain peripheral nerve left lower extremity deficits and the Board must apply separate codes and ratings in its recommendations, if compensable ratings for each condition are achieved IAW the VASRD. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself. Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting and that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting. Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

All members agreed that the chronic low back pain was unfitting and merited a separate rating. The Board next considered if the left lower leg radiculopathy, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above. The Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. The sensory component in this case had no functional implications. However, the motor impairment can be linked to functional limitations; t he CI was unable to run or use cycle ergometry for testing as indicated on his final temporary profile. As there is good evidence of functional impairment, the Board must consider a recommendation for an additional rating based on peripheral nerve impairment. Given that the PEB included radiculopathy as part of the unfitting condition, the Board adjudged that the reasonable doubt standard could be applied for change in rating, rather than the preponderance of evidence standard required for a new unfitting condition. All members agreed that the left lower leg radiculopathy was unfitting and merited a separate rating.

Regarding rating, all exams proximate to separation met the 10% rating criteria for ROM of the thoracolumbar spine. There was considerable discussion on the rating level for the left lower extremity peripheral nerve condition. Rating under peripheral nerve codes entails a judgment call regarding the severity of incomplete paralysis, especially the mild (0% for this nerve level) vs. moderate (10% in this case) distinction. A rigid assessment could require 3/5 or worse strength testing to merit the moderate rating. A more liberal rating philosophy applies any objective motor impairment or atrophy as a threshold for the moderate designation. By precedent, the Board threshold for a “moderate” peripheral nerve rating requires some functionally significant motor and/or sensory impairment. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that the chronic low back pain w/ radicular pain left leg condition should be rated for two separate conditions; an unfitting low back pain condition rated at 10% and coded 5241 with the addition of an unfitting left lower extremity peripheral nerve condition rated at 10% and coded 8523.

Contended PEB Condition. The paroxysmal atrial fibrillation condition was a new diagnosis proximate to the date of the MEB and 9 months prior to separation. A Holter monitor demonstrated non sustained paroxysmal atrial fibrillation and cardiology evaluation documented no murmurs, gallops or rubs and a normal echo cardiogram. A stress test revealed excellent functional capacity exam. The CI was on chronic medications (that did not include Coumadin - blood thinner) and there were no profile restrictions or functional limits attributable to the cardiac condition. 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 paroxysmal atrial fibrillation 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. As discussed above, PEB reliance on DoDI 1332.39 for rating the back pain and left leg radiculopathy condition was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the chronic low back pain w/ radicular pain left leg condition, the Board unanimously recommends that it be rated for two separate unfitting conditions as follows: Chronic low back pain s/p surgery coded 5241 and rated 10% IAW VASRD §4.71a., and left lower leg radiculopathy coded 8523 and rated 10%, IAW VASRD §4124a. In the matter of the contended paroxysmal atrial fibrillation 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Chronic LBP Status Post Hemilaminectomy and Diskectomy of L5-S1 5241 10%
Radiculopathy, Left Lower Extremity 8523 10%
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120419, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




         XXXXXXXXXX, DAF
         President
         Physical Disability Board of Review



SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews MD 20762
Dear XXXXXXXXXX :
         Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2012-00378.
         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 not appropriate under the guidelines of the Veterans Administration Schedule for Rating Disabilities. Accordingly, the Board recommended modification of your assigned disability rating without re-characterization 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, accept their recommendation and direct that your records be corrected as set forth in the attached copy of a Memorandum for the Chief of Staff, United States Air Force. The office responsible for making the correction will inform you when your records have been changed.
                                                               Sincerely,



XXXXXXXXXX
Director
Air Force Review Boards Agency
Attachments:
1. Directive
2. Record of Proceedings

cc:
SAF/MRBR
DFAS-IN

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