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AF | PDBR | CY2012 | PD2012 01838
Original file (PD2012 01838.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE NUMBER: PD1201838
BRANCH OF SERVICE: AIR FORCE     BOARD DATE: 20130604
Separation Date: 20030801


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty TSgt/E-6 (2A372/F-16 Avionics Craftsman), medically separated for chronic low back pain (LBP), status post (s/p) disk surgery times two (x2) condition. Initially, on 20 March 1996, the CI reported a history of back pain and limited range-of-motion (ROM) after lifting an antenna while at work. The symptoms gradually subsided with medical treatment but his LBP returned after he was repetitively bending and dragging a power cord in the F-16. Despite non-steroidal anti-inflammatory drugs, muscle relaxants, orthopedics and physical therapy evaluations, narcotic medications, microdissection surgery of large paracentral herniated nucleus pulposus (HNP) L5-S1, and a lumbar discectomy surgery, the CI failed to meet the physical requirements of his Air Force Specialty (AFS) or satisfy physical fitness standards. The CI was issued a P2/L4 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded chronic LBP with multiple lumbosacral disc herniations to the Physical Evaluation Board (PEB) IAW AF 44-113 and AFI 48-123/AFI 36-3212 and AFI 44-157. The PEB adjudicated chronic LBP, s/p disk surgery times two condition as unfitting, rated 10% with the Veterans Affairs Schedule for Rating Disabilities (VASRD). The PEB also adjudicated tobacco abuse as Category III (“Conditions that are not separately unfitting and not compensable or ratable”). Initially, the CI demanded a f ormal hearing but then he withdrew his request. The CI was medically separated.


CI CONTENTION: “The decision of the physical evaluation board did not consider the long term impact their decision would have on the service member, his wife, and his two sons by giving him a medical separation with severance pay as opposed to a medical retirement. The service member had over 12 years service at the time of his injury and subsequent medical separation and had he not injured himself on active duty, he would have continued his career and retired with 20 or more years creditable service. This was my husband from the time we were teenagers and i know how much he loved the Air Force. On the 15th of April 2012 he finally gave in to the pain and mental problems caused by the injury, subsequent surgeries, and pain medications, and took his own life. The decision of the physical evaluation board left me (his wife) and his two teenage sons with no medical benefits or future source of income that a medical retirement would have given us after his death. This is not the way the military takes care of it's own. I have over $25,000 in medical bills associated with my husband's medical and mental condition which would have been paid by Tricare if he had been medically retired instead of being medically discharged with severance pay. I understand that if your board of review finds he should have been medically retired that there is a balance to be repaid on the severance which he had been paying prior to death.”
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 chronic LBP, s/p disk surgery times two condition is addressed below and no additional conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions or contention either 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 IPEB – Dated 20030411 VA - (~3 Mos. Post-Separation)
Condition Code Rating Condition Code Rating Exam
Chronic LBP, S/P Disk Surgery Times Two 5295 10% Postoperative Microdiscectomy x2 Lumbosacral Spine, with Residual Scars (also claimed as LBP, Spinal Stenosis, Bilateral Sciatica Radiculopathy, DDD) 5243-5242* 20% 20031031
Tobacco Abuse CAT III No VA Entry
No Additional MEB/PEB Entries NSC x 4 20031031
Combined: 10% Combined: 20%
VARD 20040607 (most proximate to Date of Separation)
 * Initially coded 5237 Lumbosacral strain but later changed to 5243-5242 effective the same date and with same rating. Except for temporarily increases to 100% for subsequent surgeries in 2006 and 2009, the rating remained at 20%. A right lower extremity radiculopathy rating of 20% was added in December 2005 and a left lower extremity radiculopathy rating of 20% was added in December 2008; both were based on later C&P examinations.


ANALYSIS SUMMARY: The Board expresses its sincere sympathy with respect to the circumstances of this application. It must clarify, however, that its authority (IAW DoDI 6040.44) is limited to making recommendations regarding correcting disability determinations. The Board’s role is thus 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 ratable severity at the time of separation and it has neither the role nor the authority to compensate members (or their survivors) for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

Chronic LBP, S/P Disk Surgery Times Two 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
(Degrees)		 MEB ~6 Mos. Pre-Sep VA C&P ~3 Mos. Post-Sep**
Flexion (90 Normal) Full ROM 60 (62, pain at 58)*
Extension (30) Full ROM 30
R Lat Flexion (30) Full ROM 30 (26)
L Lat Flexion (30) Full ROM 30
R Rotation (30) 30 (45)
L Rotation (30) 30 (40)
Combined (240) 210
Comment: ROM normal values from VASRD change after DOS “Chronic LBP”; “unable to perform duties due to LBP”; intermittent numbness, weakness along upper left lateral aspect of thigh; full muscle strength; motor, sensory intact; reflexes intact * Very painful at 58⁰, only achieves 62⁰; gait nml; muscles taut without tenderness; straight leg raising neg bilaterally; knee, ankle reflexes nml’ weakness right ankle extension 4+/5; diminished sensation over Left lateral leg and lateral half of left foot; “Left sciatic pain radiating to calf;” “occasional right radicular pain;” “Every month he would have one or two episodes that could last even up to three weeks of severe exacerbation, sometimes causing him to miss work, but certainly causing him to be much more limited in activity and in much more pain;” after separation and before working: flare-ups perhaps only once a month and may be brief; no evidence of physician prescribed bed rest
§4.71a Rating 2003 10% 10%-20% (VA 20%)**
5292 10% 10%-20%
5293 No information about incapacitation
5295 10% 10%
§4.124 Rating No functional impairment 10% R & 10% L (NO VA RATING)
** VA rating was under newer spine rules.

The CI had a well-documented history of LBP in the numerous notes in the service treatment record (STR). The CI had chronic LBP and had two lumbar spine X-rays in 1996 that both showed lumbar spine abnormalities of moderate disc narrowing L4-5 and L5-S1 disc spaces. The CI was diagnosed with a HNP L5-S1 and he underwent a lumbar microdiscectomy at L5-S1, in late April 1997. Although, he initially did well, his symptoms returned. In February 2000, the physician noted positive straight leg raise on the right along with lumbar paraspinal muscle spasm and tenderness. The CI continued to have complaints of numbness radiating from the left buttocks down to the left leg and foot with decreased strength in the left lower extremity. Magnetic resonance imaging (MRI) performed the following day for the numbness and pain in the left leg revealed a small central disc protrusion at L3-4 and disc dessication at L4-5 with post-operative fibrosis at L5-S1 with extruding disk material causing dorsal displacement of the thecal sac. The CI then underwent a L5-S1 lumbar microdiscectomy, due to radicular pain. At a December 2001 evaluation, the CI complained of mild to moderate pain across the low back that intermittently occurred into the upper buttocks but the examination noted normal strength and sensation in both lower extremities. He continued to see physical therapy and in January 2002. His profile was extended for 3 months. His symptoms continued and a MEB was initiated. The CI had a long period of temporary profiles and his last temporary P2/L4 profile was granted, in July 2002. The commander’s statement documented that, although the CI was unable to work in his AFS, he was able to be productive in a less physically demanding reassignment. The MEB narrative summary (NARSUM) indicated that the CI had chronic LBP with exacerbations and intermittent numbness along the upper left lateral aspect of the thigh. The MEB NARSUM physical exam findings are summarized in the chart above. The VA Compensation and Pension (C&P) examination, performed approximately 3 months after separation, documented unresolved numbness and weakness on the left lower extremity with chronic daily pain across the entire lumbar spine and buttocks into both hip regions and difficulty with toe walking, particularly on the left; gait was normal. The CI was noted to have developed increasing left sciatic pain that radiated all the way to the calf and he occasionally had right lower extremity radicular pain with flare-ups monthly. History further indicated pain with sitting for 15 to 20 minutes would lead to a feeling of increased pain and pressure in the back, hips and buttocks and if the CI exceeded the limits of activities that he could not avoid, this would increase radicular pain on the left lower extremity. The examiner opined that there was frequent radicular pain, evidence of persistent radiculopathy with numbness, and probable slight weakness in left lower extremity with historical evidence consistent with findings of fatigability, weakness, and flare-ups. The C&P physical exam findings are summarized in the chart above.

The VA records indicated additional post-separation examinations with a June 2006 exam (over 2 years post separation) documenting fixed right lower extremity weakness with muscle atrophy which was rated at 20% (8520). The CI had additional spine surgery in 2006 and subsequent left lower extremity peripheral nerve rating in 2008 and additional spine surgery in 2009. (( I’d add this IF it was discussed at Board – most was noted under the rating comparison chart, but would fit nicely here as well – PO call)) and other purple areas

The 2003 VASRD coding and rating standards for the spine, which were in effect at the time of initial evaluations and initial PEB determination, were changed to the current §4.71a rating standards, on 26 September 2003. The new VASRD spine criteria were in effect at the time of the initial VA rating determination. The new VASRD criteria for rating diseases and injuries of the spine apply 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.

The Board directs attenti on to its rating recommendation based on the above evidence . The PEB coded the chronic LBP, s/p disk surgery x2 as 5295 l umbosacral s train (wi th characteristic pain on motion) rated 10%. The VA used the new s pine r ules to code the post - operative microdiscectomy x2 lumbosacral spine, with residual scars 5237 l umbosacral or c ervical s train rated at 20%. The g eneral r ating f ormula for d iseases and i njuries of the s pine considers the CI’s 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 . ” The Board does not know when the MEB NARSUM was performed , as there was no date on the exam ; however, it most likely was completed prior to the Medical Board Report on the AF F orm 618 dated 30 January 2003 . Although the C&P examination was completed approximately 3 months after separation , it reports a very similar clinical history to the NARSUM and it contains actual ROM measurements, rather than merely a conclusion of “full.” The Board therefore considered evidence from both examinations . Based on the C&P exam, the ROM flexion of 60 ⁰ may be considered a moderate limitation of motion supporting a 20% rating using the 2003 VASRD criteria for 5292. It also clearly me e t s the current VASRD criteria for 20% (forward flexion of the thoracolumbar spine greater than 30 ⁰ degrees but not greater than 60 ⁰ degrees ) . However, while T he CI’s ROM decreased between the time of the MEB NARSUM and the C&P examination , the Board cannot determine at what point the limitation of motion reached the moderate level . The B oard consensus was that the MEB exam was supported by the remainder of the record, and that the VA exam indicated likely post-separation worsening. Later VA exams and surgeries were adjudged post-separation worsening and not indicative of the CI’s condition at the time of separation. was not able to definitive ly determine if this occurred prior to separation or after. After due deliberation, considering all of the evide nce and mi ndful of VASRD §4.3 ( r easonable d oubt ) , the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic LBP, s/p disk surgery times two condition.

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 Board first considered the whether the CI’s radiculopathy rose to the level of being unfitting. The sensory component in this case ha d no functional implications.

However, the motor impairment noted on the C&P examination was significant in this case and it can be linked to significant physical impairment. As there is good evidence of functional impairment, the Board must consider a recommendation for additional rating based on peripheral nerve impairment. Rating under peripheral nerve codes entails a judgment call regarding the severity of incomplete paralysis, especially the mild vs. moderate distinction. A rigid assessment could require 3/5 or worse strength testing to merit the moderate rating. More liberal rating 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. The Board first considered the whether the radiculopathy rose to the level of unfitting. There is documentation throughout the STR that the CI had episodic radicular pain and intermittent complaints of lower extremity weakness. The MEB exam documented that there was the history of intermittent numbness and subjective weakness along the upper left lateral aspect of the thigh; although with findings of normal gait and normal strength was noted on examination. The C&P exam included findings history of left sciatic pain radiating to calf, normal gait and slight (4+/5) weakness on the left lower extremity with difficulty with toe walking particularly on the left and slight weakness in left lower extremity with historical evidence consistent with findings of fatigue ability, weakness, and flare-ups . Later VA exams and surgeries remote from separation were adjudged post-separation worsening and not indicative of the CI’s condition at the time of separation.

After a vigorous discussion, a majority of the Board determined that there was insufficient evidence of no functional impairment that could be linked to the radiculopathy condition at the time of separation and therefore, it could not be added as a separately unfitting 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, s/p disk surgery times two condition, the Board by a vote of 2:1 recommends no change in the PEB adjudication. The single voter for dissent, who recommended a rating of 30% (which included the chronic LBP 5292 at 20% and the radiculopathy condition as unfitting at 10%) did not elect to submit a minority opinion. 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:

UNFITTING CONDITION VASRD CODE RATING
Chronic Low Back Pain, S/P Disk Surgery Times Two 5295 10%
COMBINED 10%
______________________________________________________________________________

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121022, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



         XXXXXXXXXXXXXXXXXXXX, 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-2012-01838.
         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 husband’s separation.
         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 the separation is not warranted. Accordingly, I accept their recommendation that your application be denied.
                                                               Sincerely,





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

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