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AF | PDBR | CY2013 | PD-2013-02554

Original file (PD-2013-02554.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX CASE: PD-2013-02554
BRANCH OF SERVICE: Air force BOARD DATE: 20140807

SEPARATION DATE: 20070716

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty MAJ/O-4 (51J4/Judge Advocate Staff) medically separated for chronic low back pain (LBP). The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty or satisfy physical fitness standards. He was issued a temporary U4 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded “sciatica with degenerative changes in lumbar spine” to the Physical Evaluation Board (PEB) IAW AFI 48-123. The PEB adjudicated “chronic low back pain, degenerative changed of L3-S1 and severe foraminal stenosis L5-S1” as unfitting, rated 20% “in accordance with Department of Defense (DoD) and VA Schedule for Rating Disabilities (VASRD) guidelines”. The CI made no appeals and was medically separated.

CI CONTENTION: “The PEB rated me 20% disabled while the VA rated 30%. The Air Force failed to conduct a complete review of all medical conditions when the PEB convened- they only reviewed my spinal injuries; there was no dispute that this was a permanent condition connected to my active duty service. The medical review should have included all disabilities: spinal condition; permanent appendage damage (right index finger [permanent numbness and scar tissue]; right knee medial collateral ligament meniscal tear (while stationed in Germany 2004/5) which has recurring pain and eczema contracted during field training (and last treated at Ramstein AB 2004/5; this was not visible at time of final medical exam but noted - appears in scalp, both palms and feet). My spinal injuries progressed degeneratively over the course of my military career (and exacerbated during my deployment after 911). When I was working through the separation process, I had no real PEBLO support -- only a very nice SrA who could only provide some paperwork and had no expertise to advise me regarding military medical retirement -- was never explained as an option. Overall, I believe that had a full and complete medical review been conducted, the PEB would have at least found 30% permanent disability in line with the VA. I do continue to live with my disabilities and function as best as I can; upon separation in 2007, I was unable to secure employment that would accommodate my disabilities for almost one full year. I had a very successful USAF career and feel privileged to serve along so many who sacrificed more. I respectfully request you consider my application for medical disability retirement.”

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 low back condition is addressed below. The contended right index finger, right knee and eczema were not mentioned by the MEB or the PEB and are therefore not within the 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 CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but must emphasize 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. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws. The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation. The Board also acknowledges the CI’s assertions that his disability disposition process was not supported properly by his department. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system.

RATING COMPARISON :

Service IPEB – Dated 20070522	VA - (3 Mos. Post-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Chronic Low Back Pain	5242	20%	Lumbar DDD and Facet Arthroplasty	5237	20%	20071017
Other x 0 (Not in Scope)	Other x 6	20071017
Combined: 20%	Combined: 30%

Derived from VA Rating Decision (VA RD ) dated 200 71128 ( most proximate to date of separation [ DOS ] ).

ANALYSIS SUMMARY:

Chronic Low Back. The narrative summary (NARSUM) notes the CI developed LBP in 2000. This increased with activity and the CI first sought care for the condition in 2002. Symptoms were described as LBP with intermittent radiation of pain down left leg and thigh with numbness. On clinic examinations on 13 December 2006 and 20 February 2007, the CI reported painful motion of his low back but no leg weakness or numbness. Special back X-rays (magnetic resonance imaging) on 21 February 2007 revealed degenerative disc changes in the lower spine with severe foramina stenosis with compression of the L5 nerve root (lower spine nerve). Elective surgery was considered and was deferred because of lack of persistent symptoms of pain and motor weakness. At an examination on 14 March 2007, the CI reported his primary symptoms to be back pain with only occasional radiation to the leg or foot numbness. He reported no neurologic symptoms or weakness of the legs. At a physical therapy evaluation for the NARSUM on 22 March 2007, the CI reported pain in his back and numbness in his left thigh and great toe. On exam, gait and leg motor strength were normal. Range-of-motion (ROM) of the lumbosacral spine (ROM) was forward flexion (normal 90 degrees) restricted 50% with pain motor strength was normal. Reflexes of the left and right ankles were diminished. At the MEB/NARSUM evaluation on 30 March 2007, 4 months prior to separation, the CI reported pain radiating to the left leg and intermittent numbness of the left leg to the toe. On examination, gait and posture were normal. The forward flexion of the lumbar spine was 60 degrees with pain. Motor strength was normal. Slight decrease in light touch sensation was present over the left great toe. Reflexes at both ankles were decreased. At the VA Compensation and Pension evaluation on 17 October 2007, 3 months after separation, the CI reported back pain with intermittent radiation and numbness down the left leg. He noted being able to walk 2 miles without instability or need for assistive devices. No episodes of incapacitation were recorded. On physical examination gait and stance were normal. Mild back muscle tenderness without spasm was present. The forward flexion of the spine was 55 degrees with pain. No Deluca signs were present. Motor and sensory examinations were reported as normal. Reflex examination was reported as both “full” in both lower extremities, and normal “at the knees.”

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the back condition 20%, coded 5242 (degenerative arthritis). The VA rated the condition 20%, coded 5237 (lumbosacral strain), citing flexion of 55 degrees with pain. Under both codes IAW §4.71a, a rating of 20 % requires flexion of the lumbosacral spine greater than 30 degrees, but not greater than 60 degrees. The next higher rating of 40% requires flexion of the lumbar spine of 30 degrees or less. The Board unanimously agreed that the predominance of evidence in the record supported a rating of 20%, but no higher, for decreased ROM of the lumbosacral spine 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 noted the presence of radiation of the back pain to the lower leg, intermittent numbness and reduced lower extremity reflexes on examinations. The Board concluded that a peripheral neuropathy was present as a residuum of the low back condition. The Board considered this condition for possible rating IAW §4.124 (Neuralgia, peripheral nerve). The Board’s first task was to determine the fitting status of this condition. The Board agreed the preponderance of evidence did not support the peripheral nerve condition as unfitting in this case. The evidence in record showed that no motor weakness was present, reflex diminution was a clinical sign of neuropathy without direct functional significance per se; sensory symptoms had no functional implication and radicular pain was subsumed under the back rating IAW §4.71a. Thus, the Board could recommend no rating for this condition. The Board found no other appropriate codes for consideration. 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 LBP 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 LBP 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 20131111, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAF/MRB

Dear XXXXXXXXXXXXXX:

         Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2013-02554.

         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,

XXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:

Record of Proceedings

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AF | PDBR | CY2013 | PD-2013-02554

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