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AF | PDBR | CY2013 | PD-2013-02298
Original file (PD-2013-02298.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXX       CASE: PD-2013-02298
BRANCH OF SERVICE: AIR FORCE     BOARD DATE: 20141121
SEPARATION DATE: 20051103


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SrA/E-4 (3P051/Basic Force Protector) medically separated for chronic mild low back pain (LBP). The condition could not be adequately rehabilitated to meet the physical requirements of her Air Force Specialty or satisfy physical fitness standards. She was issued a temporary P4 profile and referred for a Medical Evaluation Board (MEB). The LBP condition characterized as “back pain s/p surgery” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123. No other conditions were submitted by the MEB. The Informal PEB adjudicated “chronic mild low back pain” as unfitting, rated at 10%. The remaining cond ition (bilateral carpal tunnel syndrome) w as determined to be C ategory II . The CI requested and was granted the Formal PEB (FPEB), which affirmed the IPEB proceedings and ratings. The CI initially appealed the FPEB findings, but later withdrew her appeal prior to adjudication by the Secretary of the Air Force Personnel Council, citing being inconvenience should she remained in Texas and while her spouse was permanently change of duty station. Thus the CI was medically separated.


CI CONTENTION: “At the time of separation I was medically discharged at a 10% rating from the Air Force after a severe back injury I suffered while on duty. Over the time I have not gotten any better having to still receive treatment thru spinal injections my life has been difficult. I didn’t feel that the rating I received before was fair more do I think it is till this day. Retirement would have been better, but I thank you for whatever you can help me with in this matter.”


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 lower back 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 (BCMR). The Board acknowledges the opinion of the CI’s treating physician in his letter to the FPEB that service mal-treatment contributed to the disability. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations. These issues may be addressed by the BCMR and/or the United States judiciary system.


 RATING COMPARISON :

Service FPEB – Dated 20050902
 VA - based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Chronic Mild Low Back Pain, Status Post L5-S1 Discectomy And Fusion 5241 10% Herniated Nucleus Pulposus Claimed As Low Back
Condition		 5239 0% STR
Other x 1 (Not in Scope)
 Other x 0 STR
Combined: 10%
 Combined: 0%


ANALYSIS SUMMARY:

Low Back Pain. The narrative summary (NARSUM) notes the CI to develop back pain after she fell while walking on black ice. An initial magnetic resonance imaging (MRI) of the lower back revealed protrusion of a lower back disc with compression of a left sided spinal nerve root. The CI underwent spinal surgery on 5 August 2004, for removal of the protruding disc and fusion of the lower spine with screws, rods and bone grafts. Post-operatively, the CI had persistent back pain without radiation to the legs, numbness, tingling or weakness of the legs or bowel/bladder dysfunctions. A post-operative MRI, quoted in the letter of the treating neurosurgeon to the PEB, dated August 2005, stated “recently obtained MRI revealing a new disc occurrence above the fusion site.” An examination on 18 November 2004, the CI was described as being “unable to twist, bend or lift without considerable pain.” She was unable to sit, stand or walk without pain for “even ten minutes.” Severe back muscle spasms were present.

At the MEB NARSUM evaluation on 20 June 2005 (5 months prior to separation), the CI reported improvement in her pain with therapy, now quoted as 3/10. She noted no numbness or pain in her lower extremities and no difficulties with bowel or bladder function. The MEB physical exam noted the CI to be in no acute distress. The remainder of the findings on the physical exam is summarized in the chart below.

The initial VA Compensation and Pension (C&P) examination, scheduled for 7 December 2006, did not occur due to CI non-attendance. On a remote C&P examination on 12 June 2008 (36 months after separation), no spinal range-of-motion (ROM) was measured as “any attempt at movement of the low back was too painful for her to demonstrate motion.” No spasm or tenderness of the lower back muscles was present. At the VA C&P examination performed (47 months after separation), the CI reported having had no physical therapy in the past year. She noted no bowel/bladder difficulties, no pain radiation, leg or foot weakness or numbness. On examination posture, gait and spinal curvature were normal. X-ray images of the spine showed good healing and alignment of the spinal rods and screws. The remainder of findings on physical exam is summarized in the chart below. The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized:
Thoracolumbar ROM
(Degrees)		 MEB ~ 4 Mo. Pre-Sep
(20050629)
 VA C&P ~ 47 Mo. Post-Sep
(20091029) *
Flexion (90 Normal) “F ull ROM” 60 with pain
Extension (30) “F ull ROM” 20
Combined (240) Full ROM 160
Comment Motor strength and reflexes normal Motor, sensory and reflexes normal.
invalid font number 31502 * invalid font number 31502
The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the back pain condition 10%, code 5241 (spinal fusion). The PEB rated the back pain condition 0%, code 5239 (lumbosacral strain) citing the service treatment records. A rating of 10% under either code IAW §4.71a requires forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees. A higher rating of 20% requires forward flexion of the thoracolumbar spine of greater than 30 degrees, but not greater than 60 degrees. The Board noted the differences between the NARSUM and remote C&P neurosurgical examinations of November 2004, a year prior to separation. The Board unanimously gave higher probative value to the NARSUM exam in its recommendations given its closest temporal alignment with the date of separation, which must remain as the Board’s definitive benchmark. Based on this data, the Board unanimously agreed that no rating recommendation under ROM criteria could be made. The Board agreed that the record reasonably supported a rating of 10%, but no higher, for painful motion IAW §4.59. The Board considered a rating IAW §4.123 (neuritis, peripheral nerve). The Board agreed there was no peripheral neuropathy in this case since no motor weakness was present, sensory symptoms had no functional implication and radiation of pain was subsumed under the back rating IAW §4.71a. The Board considered a rating under code 5243, (incapacitating episodes/intervertebral disc syndrome). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed and treated by a physician. The record documents no incapacitation under this definition in the 12-month period prior to the MEB examination. The Board agreed that no rating could be recommended under this code. The Board found no other appropriate codes for consideration and no pathway to a rating higher than 10% for the back condition. 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 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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the back 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, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131106, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record






                 
XXXXXXXXXXXX
President
Physical Disability Board of Review


 SAF/MRB

Dear XXXXXXXXXXXX:

 Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2013-02298.
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 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 your separation is not warranted. Accordingly, I accept their recommendation that your application be denied.
                                                               Sincerely,
XXXXXXXXXXXX
Director
Air Force Review Boards Agency
Attachment:
Record of Proceedings

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