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AF | PDBR | CY2012 | PD2012 01750
Original file (PD2012 01750.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXX         CASE: PD1201750
BRANCH OF SERVICE: AIR FORCE     BOARD DATE: 20130418
SEPARATION DATE: 20021213


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Maj/0-4 (47G3A/Chief, Dental Professional Services) medically separated for cervical and lumbar disk disease. He experienced an onset of low back pain (LBP) and neck knee pain early in service. He was subsequently diagnosed with chronic cervical and lumbar disk disease, and surgery was not indicated. The conditions worsened over the course of his service, and could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty (AFS) or satisfy physical fitness standards. He was issued a permanent U4 profile and referred for a Medical Evaluation Board (MEB). Cervical and lumbar disk disease was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123. No other conditions were submitted by the MEB. T he I nformal PEB (IPEB) adjudicated cervical disk disease and lumbar disk disease as unfitting rated 10% and 10% respectively, in accordance with the Department of Defense Instruction (DoDI) 1332.39 and Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The hypertension was determined to be C ategory II; conditions that can be unfitting but are not currently compensable or ratable, and the remaining conditions were determined to be C ategory III ; conditions that are not separately unfitting and not compensable or ratable. The CI made no appeals, and was medically separated with a 20% combined disability rating.


CI CONTENTION: “The 20% rating given to me by the Air Force was very unjust. I have a moderate to severe spinal nerve impingement at numerous locations along my spine from my skull to my pelvis. I deal with pain in nearly my entire body on a daily basis. I volunteered to do the hardest thing I could have for my AFSC (43G3A), a two year dental residency. Instead of this resulting in an almost assured 0-6 retirement, this residency only accelerated my physical deterioration. For trying to excel in my job, I am rewarded with VA $ on which I barely survive. I had a plane reservation to appeal before my final separation. I cancelled them when the person assigned to help me in my appeal said I had no chance of succeeding! (!!!) This was unjust. The VA says I am 80% disabled. My entire cervical spine is distorted/misshapened. I have pain in my hands, arms, head, back, neck, legs, & feet daily. I spend much of my time lying in bed (both sitting and standing aggravate my back). I can exercise some and can take care of myself and my property. I don’t feel good enough to seek employment. I have been unemployed since my separation nearly 10 years. I have trouble sleeping.”


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The ratings for the unfitting cervical and lumbar conditions are addressed below, and no additional conditions are within the DoDI 6040.44 defined purview of the Board. The Disability Evaluation System (DES) has neither the role nor the authority to compensate 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. 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 Board for Correction of Military Records.


 RATING COMPARISON :

Service I PEB – Dated 200 20919
VA - ( 4 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Cervical Disk Disease 5290 10% Deg . Disc Disease (DDD) Cervical Spine 5290-5293 20% 20020801
Left Upper Extremity Numbness and Weakness Asso . w/ DDD Cervical Spine 5293-8515 10% 20020801
Right Upper Extremity Numbness and Weakness Asso . DDD Cervical Spine 5293-8515 10% 20020801
Lumbar Disk Disease 5295 10% DDD of the Lumbar Spine 5292-5293 40% 20020801
Sciatic Neuropathy Left Lower Extremity Assoc . DDD Lumbar Spine 5293-8520 1 0% 20020801
Sciatic Neuropathy Right Lower Extremity Assoc . DDD Lumbar Spine 5293-8520 20% 20020801
Hypertension Cat II Hypertension 7101 10% 20020801
Hyperlipidemia Cat III No VA Entry
Overweight Cat III No VA Entry
No Additional MEB/PEB Entries
Other x 5 20020801
Combined: 20 %
 Combined: 80 %
Derived from VA Rating Decision (VA RD ) dated 200 30211 invalid font number 31502 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Cervical Disk Disease: The CI started complaining of neck pain around March 2002. At that time he was working as a dentist and he noticed the pain was exacerbated by bending forward while performing patient care. The pain was accompanied by fatigue of thumbs as well as tingling and numbness in both arms and hands. The X-ray exam performed on 29 March 2002 evidenced straightened contour suggestive of muscle spasm, degenerative disc disease (DDD) at C3-4, C4-5, C5-6, with narrowing of the neuroforamina at C5-6. Magnetic resonance imaging (MRI), 3 April 2002 demonstrated degenerative disc and joint disease of the cervical spine with a protrusion of the C5-6 intervertebral disc. Electrodiagnostic testing (electromyogram and nerve conduction) from April 2002 was negative for radiculopathy or peripheral nerve pathology. Surgery was not recommended. Symptoms did not improve with medication, physical therapy or cervical traction exercises and the CI stopped performing direct patient care due to exacerbation of symptoms by the stooped forward posture. At a neurosurgery examination 20 May 2002, the CI reported neck pain radiating to the trapezius and arms associate with numbness and tingling, left greater than right. On examination, neck motion was “reasonably good” with “some pain” at extremes of motion. Strength, reflexes and sensation were normal. The surgeon reviewed the MRI and commented there were “relatively mild spondylitic changes at C4-5 and C5-6.” At a physical therapy examination 24 May 2002, functional limitations with leaning forward performing dentistry was noted. Neck motion was limited to 45 degrees of right rotation, 50 degrees of left rotation and 18 degrees of side bending (flexion and extension were not recorded). There was pain with neck motion. Right grip strength was 143 and 120 pounds, left grip strength was 132 and 105 pounds (normal mean is right 117 and left 113 pounds for same age and gender). Reflexes were intact. A physical therapy examination performed 17 July 2002 for the MEB noted decrease of the normal cervical spine curvature. Cervical spine flexion was 20 degrees, extension 25 degrees, right lateral flexion 14 degrees, left lateral flexion 10 degrees, right rotation 25 degrees, and left rotation 22 degrees. There was decreased manual dexterity, and upper extremity strength was mildly decreased in both arms as well as grip and pinch strength. At the VA Compensation and Pension (C&P) exam performed on 1 August 2002, 6 weeks prior to separation the CI reported he stopped working as a dentist and continued daily cervical traction and range-of-motion (ROM) exercises. Cervical spine flexion was 25 degrees, extension 25 degrees, right lateral flexion 15 degrees, left lateral flexion 10 degrees, right rotation 25 degrees, and left rotation 22 degrees. There was painful motion. Bilateral hand strength was mildly reduced. The examiner noticed the CI had decreased endurance of fine and gross motor function with repetition and he was not able to grasp items with thumbs and index fingers. The MEB narrative summary (NARSUM) 12 August 2002 cited the neurosurgery examination (20 May 2002) and physical therapy examination (17 July 2002) previously described. A Physical Medicine and Rehabilitation (PM&R) examination 19 August 2002 noted dull neck pain that radiated down the back, worse with flexion. On examination there was no tenderness to palpation. There was decreased cervical motion with pain (not further specified). Strength of the arms and hands was normal (5/5), and reflexes were normal.

The Board directs attention to its rating recommendation based on the above evidence. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. The Board notes that the 2002 VASRD standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004. The Board must correlate the above clinical data with the 2002 rating schedule; applicable diagnostic codes include: 5290 limitation of cervical spine motion, and 5293 intervertebral disc syndrome. The PEB rated the cervical disc disease 10%, coded 5290. The VA rating decision from February 11, 2003, rated the condition 20% citing moderate limitation of motion of the cervical spine (coded 5290-5293). The VA also assigned 10% disability for each upper extremity radiculopathy under code 5293-8515 citing mildly disabling symptoms. The Board agreed that the limitation of motion of the cervical spine more nearly approximated the moderate limitation than slight in all examinations. The Board also considered rating under 5293, intervertebral disc syndrome. Although there was limitation in performance of direct patient care, avoidance of aggravating neck postures, and reduced duty hours for a period of time, there was not bed rest prescribed by a physician. When considered under the 5293 guidelines in effect prior to September 2002, all Board members agreed a rating higher than 20% was not supported by the preponderance of evidence. There was no vertebral fracture or ankylosis to assign ratings under codes 5285, 5286, 5287. The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy. The CI had MRI evidence of cervical spine neuroforaminal narrowing that could produce symptoms, especially when performing specific movement related to his MOS as a dentist. There were complaints of tingling and numbness in both arms and hands (left worse than right) with sustained flexed forward posture; however electrodiagnostic testing was negative for abnormalities. The Board noted the July 2002 PT examination and the C&P examination documenting mild weakness while the neurosurgery and physical therapy examinations from May 2002 and the PM&R examination from August 2002 reported normal strength. The Board also considered the report of reduced strength and dexterity while holding the head in a flexed position while performing dental care. All members agreed there was sufficient evidence of peripheral nerve involvement of the left hand and right hand that were additionally unfitting. Overall strength reflexes and sensation were intact. The functional impairment of each hand however supported a 10% rating under 5293-8515 which reflected the functional impairment. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the cervical disc disease condition (5290) and an additional 10% rating for each the left and right upper extremity impairment (5293-8515).
Lumbar Disc Disease. The MEB NARSUM exam noted intermittent back pain starting around 1997 and becoming more persistent and localized in the hip region around 2000. An MRI in June 2001 demonstrated bulging intervertebral discs at L3-4 and L5-S1, the latter possibly impinging on L5 nerve roots. Treatment with injections, medication and physical therapy was not effective and symptoms were aggravated by bending and stooping entailed by his job as a dentist. A repeat MRI on 3 January 2002 noted moderate sized diffuse disk bulge at L5-S1 level causing moderate to severe narrowing of the neural foramina and possible impingement of the L5 nerve roots that was unchanged from the previous MRI in June 2001. At the 20 May 2002 neurosurgery examination the CI report there was a lot less difficulty with the back since he was no longer treating patients. On examination, gait, strength, reflexes and sensation were normal. At a 10 July 2002 clinic appointment the CI noted increased back pain shooting into the right hip. On examination, strength, reflexes and sensation were intact and straight leg raising (SLR) was negative for radicular signs. At the physical therapy examination on 17 July 2002 performed for the MEB, there was decreased lumbar lordotic curve. Trunk motion (thoracolumbar motion) was 80 degrees, extension 25 degrees, right lateral bending 15 degrees, left lateral bending 10 degrees, right rotation 15 degrees and left rotation 20 degrees. Lower extremity strength was reported as mildly decreased. Gait was normal. The C&P exam performed on 1 August 2002, 4 months prior to separation, noted the CI complained of chronic lumbar pain, rated six-seven/ten (ten being the maximum level of pain experienced), radiating into the right hip and occasionally radiating to the anterior thighs as well as numbness/tingling lateral aspect of lower right leg and foot. The CI stated he walked with a cane two-three times/week to decrease pressure on the right side. On physical examination, the CI ambulated with a normal gait. There was tenderness to palpation in the lumbar area without inflammation. The spine was described as straight with loss of normal curvature in the lumbar area. ROM examination evidenced flexion of 80 degrees with the CI holding on a chair, extension 25 degrees. Rotation was seven degrees right and 20 degrees left. On straight leg testing there was report of pain and numbness into the right leg. The 12 August 2002 MEB NARSUM examination reported negative SLR testing with normal reflexes. The PM&R examination 19 August 2002 recorded normal lower extremity strength with negative straight leg raising for radicular signs (back pain only). There was no tenderness to palpation of the lower back but difficulty with forward bending was reported.

The Board directs attention to its rating recommendation based on the above evidence. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. The Board notes that the 2002 VASRD standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004. The Board must correlate the above clinical data with the 2002 rating schedule; applicable diagnostic codes include: 5292 limitation of lumbar spine motion; 5293 intervertebral disc syndrome (updated September 2002); and 5295 lumbosacral strain. The PEB rated the lower back condition 10% under code 5295 (lumbosacral strain). The VA assigned a 40% rating for the back condition rated 5292-5293 citing severe limitation of motion of the lumbar spine. VA also rated separately sciatic neuropathy of the left lower extremity 10% under code 5293-8520 citing mild impairment in function of the left lower extremity. For the right lower leg, VA assigned a 20% rating under the same code 5293-8520, citing moderate disability of the right lower extremity. The Board agreed that the limitation of motion more nearly approximated the 10% than the 20% rating under 5292, limitation of lumbar motion. The Board noted the VA rating citing limitation of motion but did not agree the limitation of motion on examinations supported the 20% or 40% level. The Board next considered whether a higher rating was warranted under the guidelines for intervertebral syndrome, code 5293. Although there was limitation in performance of direct patient care, avoidance of aggravating back postures, and reduced duty hours for a period of time, there was not bed rest prescribed by a physician. When considered under the 5293 guidelines in effect prior to September 2002, all Board members agreed a rating higher than 10% was not supported by the preponderance of evidence based on the objective examination findings. The Board also considered the rating under the code, 5295, lumbosacral strain used by the PEB, but concluded the preponderance of evidence did not support a rating higher that the 10% rating assigned by the PEB. There was characteristic pain on motion but no muscle spasm, or unilateral loss of lateral motion, or evidence of severe strain with listing or marked limitation of motion. The discussed the C&P examination report that the CI held on a chair and compared that examination with prior examinations and concluded the examination confirmed characteristic pain on motion but did not evidence muscle spasm. The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy. Although there was evidence of degenerative bulging discs, multiple examinations reported normal strength, reflexes and negative leg raises. The Board noted some examinations indicating subjective symptoms with mild weakness but concluded this did not arise to a level to be considered separately unfitting. 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 lumbar disc disease 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 cervical disc disease condition, the Board unanimously recommends a disability rating of 20% coded 5290 IAW VASRD §4.71a. In the matter of the left upper extremity radiculopathy condition, the Board unanimously recommends a disability rating of 10% coded 5293-8515 IAW VASRD §4.124a. In the matter of the right upper extremity radiculopathy condition, the Board unanimously recommends a disability rating of 10% coded 5293-8515 IAW VASRD §4.124a. In the matter of the lumbar disc disease condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Cervical Disk Disease 5290 20 %
Lumbar Disk Disease 5295 10 %
Right Upper Extremity Radiculopathy 5293-8515 10 %
Left Upper Extremity Radiculopathy 5293-8520 10 %
COMBINED w/BLF 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120903, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




         XXXXXXXXXX, DAF
         Director of Operations
         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-2012-01750.
         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 your separation be re-characterized to reflect disability retirement, rather than 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 determined that your records should be corrected accordingly. The office responsible for making the correction will inform you when your records have been changed.
         As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP). Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election. If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

                                                               Sincerely,



XXXXXXXXXX
Director
Air Force Review Boards Agency
Attachment:
Record of Proceedings

cc:
SAF/MRBR
 DFAS-IN

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