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AF | PDBR | CY2012 | PD2012 01821
Original file (PD2012 01821.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD1201821
BRANCH OF SERVICE: AIR FORCE     BOARD DATE: 20130521
SEPARATION DATE: 20020125


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Senior Airman SrA/E-4 (2A551L/Aerospace Maintenance) medically separated for chronic back pain. In April 2000, the CI was involved in a motor vehicle accident (MVA) which resulted in his complaint of low back pain (LBP) that radiated into his left leg. Radiographic studies revealed an annular tear and herniated disc material involving the L5-S1 disc. The CI’s back pain was treated with oral medications, physical therapy (PT), epidural steroid injections (ESIs) and percutaneous (through the skin using needles) disc decompression that did not result in his ability to meet the physical requirements of his Air Force Specialty or satisfy physical fitness standards. He was issued an L3 profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as discogenic LBP and mild herniated nucleus pulposus (HNP) of L5-S1, was forwarded to the Informal Physical Evaluation Board (IPEB) IAW AFI 48-123. No other conditions were identified by the MEB. The IPEB adjudicated “discogenic low back pain associated with L5-S1 HNP, status post failed steroid injections and percutaneous decompression” as unfitting and rated 20% with application of Department of Defense Instruction (DoDI) 1332.39 and the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI appealed to the Formal PEB which affirmed the IPEB’s adjudication. The CI did not accept the FPEB’s findings and submitted a rebuttal letter to the Secretary Air Force Personnel Council (SAFPC). SAFPC reviewed the case and concurred with the findings of both PEBs and the CI was medically separated.


CI CONTENTION: “My back ailment has persisted since separating in Jan. 2002 despite many attempts at corrective procedures and surgery. Newer ailments, connected with my lower back injury have started around Nov. 2010. Attempts to resolve them have been of little use. Dr. S--- is now recommending fusion, which has its own inherent complications, one of them being paralysis and/or loss of use of lower extremeties. Dr. R--- had me on 10mg Oxycontin, but increased dosage to 15mg. I have been fitted with a lumber corset. Since 15mg Oxycontin was causing me to itch, my prescription was changed to 15mg Morphine Sulfer. I respectfully ask for the reevaluation of my medical records, both past and present, to more closely reflect an accurate disability rating.”


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 rating for the unfitting back condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 FPEB – Dated 20011030
 VA - (~1 Mo. Pre/Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Back Pain
 5293 20% HNP at L5-S1 with Radiculopathy 5293 60% 20030107
No Additional MEB/PEB Entries
 Other x11 60% 20030107
Combined: 20%
 Combined: 80%
Derived from VA Rating Decision (VA RD ) dated 200 30411 (most proximate to date of separation [ DOS ] )


ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. It is a fact, however, that the Disability Evaluation System has neither the role nor the authority to compensate 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 Board utilizes DVA 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 6040.44, 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.

Chronic Back Pain Condition. The CI was involved in a MVA, in April 2000 that resulted in his chronic LBP. He was a restrained passenger in the vehicle that was hit on the passenger side, at a high rate of speed. His back pain was mainly in the mid-line and radiated primarily into his left leg. He was initially treated with PT and chiropractic care and orthopedic evaluation suggested disc pain with decreased sensation and strength in his left leg. After neurosurgical evaluation, he was determined not to be a surgical candidate and underwent various percutaneous procedures performed by a pain management specialist. When ESIs did not provide relief, a discogram (radiologic study with dye injected into the disc) was performed and revealed definite pathology of the L5-S1 disc (annular tear) with definite recreation of his radicular symptoms. Subsequent to that study, 8 months prior to separation, the CI underwent a percutaneous disc decompression that relieved his radicular symptoms (with occasional radicular symptoms returning 3 months later) while his back pain continued. The CI had 3 weeks of convalescent leave after that procedure. The narrative summary (NARSUM) prepared 6 months prior to separation noted that the CI’s LBP also radiated down to the left leg with numbness and tingling down the posterior thigh, leg, and plantar foot. Physical examination revealed slow gait with decreased range-of-motion (ROM) of the lumbar spine that was non-tender to palpation. There was normal motor strength except for a mild decrease in left foot plantar flexion with decreased sensation of left posterior leg and plantar foot. There were normal deep tendon reflexes bilaterally. Radiographic study revealed a small HNP of the left L5-S1 disc. The examiner’s assessment was discogenic LBP with HNP L5-S1 that failed all treatment modalities. At the VA Compensation and Pension exam performed a year after separation, the CI reported chronic residual lower back pain. He had radicular symptoms that started in the lower back and radiated to the left gluteal region behind the left thigh. There was no history of overt weakness of the left lower extremity. Physical exam revealed that the lumbar spine demonstrated moderate spasms. Forward flexion was from 0 degrees to 50 degrees. Neurological examination demonstrated normal strength, reflexes and sensation of the lower extremities. The examiners impression was HNP status post disc surgery at L5-S1 with residuals of chronic pain, restricted ROM, and radicular symptoms. The CI had chronic pain with evidence to suggest milder fatigability with no evidence of incoordination.

The Board directs attention to its rating recommendation based on the above evidence. SAFPC reaffirmed the FPEB’s adjudication of applying VASRD code 5293, intervertebral disc syndrome, and rating it 20% disabling IAW DODI and VASRD guidelines. DODI guidelines pertaining to intervertebral disc syndrome states that the ratings of 40%-60% will be predicated upon objective neurological findings supported by laboratory data (such as electromyography [EMG], nerve conductive studies [NCS]) which were not available pre-separation. The VA also applied VASRD code 5293 and rated it 60% based on constant pain without relief from medication or procedures, restricted motion and moderate lumbar spasm. The VARD also started using newer guidelines (which were effective after separation) for rating back pain (which were based on range of motion values) would have resulted in a lower rating. The rating guidelines for VASRD code 5293 (which is the best clinical fit for the CI’s disability) in effect at the time of separation are copied below for the reader’s convenience:

5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief ........................ 60
Severe; recurring attacks, with intermittent relief …….………………………………….40
Moderate; recurring attacks ...................... 20
Mild ............................................................. 10
Postoperative, cured .................................... 0

Prior to separation, the CI’s back pain with radicular symptoms was neither cured/mild, as required for the 0 or 10% rating, nor pronounced as required for the 60% rating; so Board deliberations settled on a 20% vs. 40% rating recommendation. The NARSUM is the most probative exam in this case. It documents not only symptoms consistent with intervertebral disc syndrome but also physical findings of slightly decreased plantar flexion and decreased sensation of the left leg. After the disc decompression procedure performed 8 months prior to separation, the CI did experience relief from the radicular symptoms while his back pain persisted. His radicular symptoms did return 3 months later. EMG data available in evidence (obtained 16 months after separation was not available to the PEB) documents the CI had chronic L4-L5 radiculopathy with re-innervation (healing nerve injury that occurs within 5-6 weeks). The CI had persistent back pain with intermittent relief from his radicular symptoms after disc decompression. That constellation of symptoms and physical findings meets the criteria for a 40% rating under VASRD code 5293. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a disability rating of 40% for the chronic back pain 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 chronic back pain was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the chronic back pain condition, the Board unanimously recommends a disability rating of 40%, coded 5293 IAW VASRD §4.71a. 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
Intervertebral Disc Syndrome 5293 40%
COMBINED 40%
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 12 1007 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record





         XXXXXXXXXXXXXXXXXXXXXXXXXX, DAF
         President
         Physical Disability Board of Review



 SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews MD 20762
         

Dear XXXXXXXXXXXXXXXXXXXX :
         Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2012-01821.
         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,



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

cc:
SAF/MRBR
DFAS-IN



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