Search Decisions

Decision Text

AF | PDBR | CY2013 | PD-2013-02789
Original file (PD-2013-02789.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX     CASE: PD-2013-02789
BRANCH OF SERVICE: AIR FORCE     BOARD DATE: 20140814
DATE OF PLACEMENT ON TDRL: 20070524
Date of TDRL Exit: 20090512


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty A1C/E-3 (2W131Z/Aircraft Armament System Apprentice) medically separated for chronic low back pain (LBP). The back condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty or satisfy physical fitness standards. He was issued an L4S1 profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “chronic low back pain refractory to multiple modalities” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123. The MEB also identified and forwarded three other conditions for PEB adjudication including “Anxiety related to diagnosis #1” (low back pain). The Informal PEB (IPEB) adjudicated “depression not otherwise specified” and “low back pain due to lumbar strain and sacroiliitis” as unfitting, rated 50% and 10% respectively. Hypertension was determined to be a C ategory II condition ( a condition which can be unfitting , but is not currently ratable or compensable ) and no comment was made about the third condition . The CI made no appeals and was placed on the Temporary Disability Retired List (TDRL) with a combined rating of 60%. Upon re-evaluation in November 2008, the Axis I diagnosis was changed to “Pain Disorder associated with both psychological factors and a general medical condition.” In February 2009, the IPEB adjudicated the LBP at 10%, but found the pain disorder was “not so severe as to be separately unfitting from the pain from your back.” The applicant did not concur and submitted a written rebuttal, but waived a formal hearing. The SAF Personnel Council reviewed the case and affirmed the PEB findings and rating.


CI CONTENTION: “My back has continued to worsen since time of discharge it effects my day to day life + my current job in a negative manner. I am currently taking meds to help ease the pain and will have to take them for the forseeable [sic] future.”


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 applicant. The ratings for conditions meeting the above criteria are addressed below. In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process. The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference. The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON :

SAFPC - 20090416
 VA (19 Mo. Prior to Adjudication Date*) - Effective 20070524
TDRL Entry - 20070524
 Code Rating Condition Code Rating Exam
Condition
 TDRL Entry TDRL Exit
Depression, NOS 9434 50% CAT II Adjustment Disorder w/Mixed Anxiety and Depressed Mood 9499-9417 NSC** STR**
Chronic Low Back Pain 5237 10% 10% Low Back Pain 5010-5243 10% 20071018
Other x 0 (Not in Scope)
 Other x 6 20071018
Combined: 60% → 10%
 Combined: 20%
*Reflects VA rating exam proximate to TDRL placement; no VA rating evidence proximate to permanent separation.
** CI failed to appear for his scheduled VA MH C&P exam on 20080403.


ANALYSIS SUMMARY: The Board acknowledges the impairment with which the CI’s service-connected condition continues to burden him but notes the Military 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. Although the Board considers DVA evidence proximate to separation in arriving at its recommendations, DoDI 6040.44 prescribes a 12-month interval for special consideration to post-separation evidence, which is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Low Back Pain. The service treatment record indicated the CI had severe pain in the back that began after loading weapons in mid-December 2005. Further history noted that the CI sustained the original injury on 19 December 2005 when he slipped in hydraulic fluid landing at the bottom of a ramp coming off a helicopter. Treatment by physical therapy did not help, but it was noted that the pain was more intense after loading weapons, running and sleeping. He was diagnosed with lumbar strain and sacroiliitis. Treatment by a pain specialist in May 2006 with an injection afforded short term relief. A magnetic resonance imaging (MRI) showed mild degenerative changes in the L4-L5 disc. The pain did not significantly improve after radio frequency ablation procedure for the right L3 and L4 nerves, repeat ablation, osteopathic manipulation treatments, physical therapy or medications (both muscle relaxants and a medication for nerve pain). The CI’s daily LBP interfered with his sleep and ability to do physical work. Treatment continued with narcotic medication. Post-separation, he found an administrative job that involved sitting.

A series of profiles were issued for the CI’s lower back pain with an L4T on 12 March 2007 that restricted mandatory running, including the 1.5 mile run, crunches and cycle ergometry (stationary bicycle to measure work output). The narrative summary (NARSUM) dated 26 March 2007 noted full range-of-motion (ROM), full strength, negative straight leg raise, normal deep tendon reflexes and normal sensory exam. Pain with palpation was present over the vertebrae of the lower back. He was unable to do his job, which involved lifting heavy bombs, but was very motivated to stay in the service and was willing to cross train. The commander’s statement dated 27 March 2007 did not specifically address issues related to his back, but did refer to adjustment problems that are discussed below.

At the VA Compensation and Pension (C&P) examination performed on 18 October 2007, 5 months after TDRL placement and 19 months before TDRL removal, the CI reported the injury as having occurred while working on a helicopter when he attempted to pick up a machine gun and accidentally slipped on some hydraulic fluid and fell to the ground. He sought treatment the next morning when he was unable to move. He reported that he only obtained relief of his back condition with narcotic medication. He rated the intensity as 8.5 out of 10. Intensity increased with flares and precipitants were twisting and lifting. Examination revealed full ROM of the thoracolumbar spine with tenderness of the lumbar area and no pain or limitation on motion. Previously prescribed muscle relaxant and non-steroidal anti-inflammatory medications were discontinued because they did not relieve the CI’s pain. No incapacitation was reported or noted.

The TDRL reevaluation NARSUM dated 18 November 2008 indicated the CI’s gait and stance were normal. Lumbar spine examination revealed normal flexion and extension, rotation, side-to-side bending, all with increased pain focused at the low back. He had mild tenderness consistent with spasm in his lower lumbar paraspinal muscles, but no midline tenderness with a negative straight leg raise test. Lower extremities strength and reflexes were normal. X-rays of the lumbar spine demonstrated no evidence of significant bony changes; however, mild joint facet hypertrophy (enlargement) was noted in the lower lumbar levels and was confirmed by a MRI. Continued TDRL was recommended.

The Board directs attention to its rating recommendation based on the above evidence. The PEB on 3 May 2007 rated the condition at 10% using code 5237 (lumbosacral or cervical strain) for refractory LBP due to lumbar strain and sacroiliitis and placed the CI on TDRL along with an MH condition discussed below. The VA also rated the condition at 10%, but used the code 5010-5243 (arthritis due to trauma-intervertebral disc syndrome) for LBP. Both the IPEB and the VA ratings were based on localized tenderness in the lumbar spine area and not as a result of either pain, limitation of motion or incapacitation. The TDRL reexamination PEB on 16 April 2009 retained the 10% rating using code 5243 for chronic back pain based on mild tenderness consistent with spasm of the muscles of the lower lumbar area. Gait and stance were normal as were the ROM and neurological examination. 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 at either TDRL placement or removal.

Contended Mental Health Condition. The Board’s main charge is to assess the fairness of the TDRL Reexamination PEB determination dated 20 February 2009 that the pain disorder associated with both psychological factors and general medical condition was not unfitting at TDRL removal and to also consider the rating at TDRL entry. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The MEB psychiatric addendum dated 3 April 2007 focused on psychiatric aspects of his condition indicated that the CI suffered from depressed moods and anxiety since approximately 2005 after he injured his back. As a result he endorsed sleep disturbance as well irritability, frustration and anger that made it difficult for him to interact with personnel at work that led to frustrating experiences. The CI had outpatient treatment with medication and psychotherapy, which he described as modestly efficacious and was followed by a social worker, who over a 3-month period in 2007 noted the Global Assessment of Function (GAF) scale to be 65 (indicating mild symptoms). The CI’s Axis I psychiatric diagnosis was depression, not otherwise specified (NOS) with marked impairment for further military duty and severe impairment for social and occupational adaptability with the GAF ranging from 45 (serious symptoms) to 80 (if symptoms present they are transient and expectable reactions to psychosocial stressors) as a result of treatment. On 12 March 2007, he was issued an S1 profile. The commander’s statement noted the CI was “experiencing adjustment problems and could not get along with his co-workers,” “missed up to 20 hours per week because of appointments” and “could not cope with the stress of having any responsibility at work.” The PEB found him unfit with a rating of 50% using code 9434 (major depressive disorder) for depression, NOS with a considerable social and industrial adaptability impairment at the time of TDRL entry based upon occupational and social impairment with reduced reliability and productivity with difficulty in establishing and maintaining effective work and social relationships. After placement on the TDRL on 23 May 2007, the CI continued to have depressive symptoms, but had no MH treatment. The VA C&P examination for MH issues performed on 13 October 2007 noted the CI appeared to be mildly depressed and anxious and was diagnosed with depression (very mild secondary to back injury) with a GAF of 82 (absent or minimal symptoms). The TDRL psychiatrist evaluator on 14 November 2008 indicated that the diagnosis of pain disorder associated with both psychological factors and a general medical condition was more appropriate than depression since the CI’s mood symptoms were clearly linked to fluctuation in his [lower back] pain level throughout the day and night and assessed the GAF to be 70 (some mild symptoms). He was significantly impaired for further military duty and mildly impaired for civilian social and industrial adaptability since he maintained adequate job performance and social relations. A memorandum for HQ AFPC/DPSDD dated 9 April 2009 reviewed the CI’s conditions, treatment and status through the TDRL period and noted the CI worked as a corrections officer and was not undergoing MH care and was not on any psychiatric medication. On 16 April 2009, the PEB found the CI’s condition Category II (can be unfitting, but not currently compensable or ratable) using code 9422 (pain disorder) and noted “Your medical condition has improved since being placed on the TDRL and appears to have stabilized. . . Your Pain Disorder is not so severe as to be separately unfitting from the pain from your back.” The aforementioned was reviewed by the action officer and considered by the Board. There was performance based evidence from the record that the depressive disorder did significantly interfere with satisfactory duty performance at the time of TDRL removal. However, the PEB adjudication based on the TDRL reevaluation found the CI not unfit separately for a pain disorder related to his lower back, rather than the depression that it had found him unfit for upon entry into the TDRL period, while the VA examination indicated the CI had mild depression due to back pain. Thereafter, the CI failed to report to a VA MH re-examination on 3 April 2008, and the VA denied service-connection and no rating was assigned.

The Board first considered if the application of VASRD §4.129 was warranted. The MH condition was related to the consequences of the traumatic injury to his back (pain and limitations of activity); he did not endorse symptoms secondary to the traumatic event itself. Therefore, application of VASRD §4.129 is not warranted because his diagnosis of a depressive disorder was a result of the pain and physical limitations related to his lower back at the time of placement on TDRL. The Board next considered the Terms of Reference inclusion criteria. These were met as the diagnosis of a depressive disorder was changed to a pain disorder, a less severe diagnosis, to the possible disadvantage of the CI.

The Board then considered the rating at TDRL entry. The CI was rated 50% IAW VASRD §4.130. He reported his work “adjustment problems” of not getting along with co-workers, missing work due to appointments, and not coping with responsibility. He did not have deficiencies in most areas that would support a higher, 70% rating. At the time of TDRL removal, he was determined to be not unfit for an MH condition with the diagnosis of pain disorder related to the lower back not rising at the level of being unfitting, and therefore the condition was not ratable. The CI was working as a corrections officer and was not in MH treatment. The Board determined that there was not a preponderance of evidence to support the addition of the MH condition as unfitting at TDRL removal and permanent military separation. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for pain disorder and so no additional disability rating is recommended.


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, the Board unanimously recommends no change in the PEB adjudication at TDRL entry or at permanent separation and TDRL removal. In the matter of the depressive disorder condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication upon TDRL entry. In the matter of the contended pain disorder condition, the Board unanimously recommends no change from the PEB determination as not unfitting at the time of permanent separation due to TDRL removal. 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 20131214, 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-2013-02789.

         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

Similar Decisions

  • AF | PDBR | CY2013 | PD-2013-02212

    Original file (PD-2013-02212.rtf) Auto-classification: Denied

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board directed attention to its rating recommendationbased on the above evidence.The PEB rated the chronic LBP 10%, coded 5299-5237 (analogous to lumbosacral strain) and the VA rated it 0%, coded 5237.The Board...

  • AF | PDBR | CY2013 | PD-2013-02202

    Original file (PD-2013-02202.rtf) Auto-classification: Denied

    At TDRL entry, the PEB rated the condition of conversion disorder, coded 9424, at 10%. The Board further recommends a 30% permanent disability rating for the condition of somatization disorder. TDRL neurology removal examination dated 3 February 2006, approximately 17 months after TDRL entry, recorded decreased sensory in left digits four and five, and pain on palpation of the surgical scar.

  • AF | PDBR | CY2014 | PD-2014-01774

    Original file (PD-2014-01774.rtf) Auto-classification: Denied

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. All Board members agreed that the NARSUM examination 6 weeks prior to TDRL entry did not support any §4.71a criteria greater than 10% impairment level; and, therefore, recommends no change from the PEB’s 10% impairment rating entering into TDRL.The Board next considered...

  • AF | PDBR | CY2014 | PD-2014-01855

    Original file (PD-2014-01855.rtf) Auto-classification: Approved

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of theVeterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The PEB rated the chronic neck pain 0%, coded 5237 (cervical strain) and the VA rated it 20%.The Board considered that the CI was noted to have painful, mildly limited cervical ROM without noted muscle spasm at the MEB...

  • AF | PDBR | CY2013 | PD-2013-01130

    Original file (PD-2013-01130.rtf) Auto-classification: Approved

    The VA C&P general medical examination obtained in March 2007 (a month post-separation), documents that the CI’s PTSD condition was stable with medications. The VA rated the condition of PTSD coded as 9411, at 50%. Providing orders showing that the individual was separated with a permanent combined rating of 20% effective the day following the six month TDRL period with no recharacterization of the individual’s separation.

  • AF | PDBR | CY2013 | PD-2013-01601

    Original file (PD-2013-01601.rtf) Auto-classification: Denied

    Again medication was prescribed for his back pain. The condition was reviewed and considered by the Board. In the matter of the chronic LBP conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.In the matter of the adjustment disorder,the Board unanimously recommends no change from the PEB determination of not unfitting.There were no other conditions within the Board’s scope of review for consideration.

  • AF | PDBR | CY2010 | PD2010-00037

    Original file (PD2010-00037.docx) Auto-classification: Denied

    Additionally, the CI had already been on a period of TDRL prior to final separation rating. They are not useful for final separation rating, but are useful for rating upon entry into the TDRL period. In the matter of the sinus condition or any other medical conditions eligible for Board consideration, the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

  • AF | PDBR | CY2014 | PD-2014-01114

    Original file (PD-2014-01114.rtf) Auto-classification: Denied

    The PEB rated the depression at 10% using code 9434 (Major Depressive Disorder) and determined the pain disorder was a Category II condition related to the back pain, while the VA rated the depression 30% also using code 9434. Additionally, his symptoms improved with psychotherapy and continuous medication thereby favoring a 10% rating, although the NARSUM noted his back condition was “complicated by his morbidity of depression” and the addendum noted “the condition alone [was] so severe...

  • AF | PDBR | CY2014 | PD-2014-01418

    Original file (PD-2014-01418.rtf) Auto-classification: Approved

    The CI’s chronic bilateral foot pain, chronic low back pain (LBP), plantar fasciitis and pes planus conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The IPEB did not address the remaining conditions (plantar fasciitis, pes planus and adjustment disorder).The CI appealed to the Formal PEB (FPEB) which reaffirmed the IPEB’s findings for the chronic low back condition as unfitting, rated at 10%, but changed the chronic foot pain (bilateral) diagnosis to bilateral...

  • AF | PDBR | CY2013 | PD-2013-01610

    Original file (PD-2013-01610.rtf) Auto-classification: Approved

    I have contacted Evans Army Medical Facility to have my records forwarded to the Physical Disability Board of Review. While ROM limitations may have progressed over the 3-month time period, there is no evidence in the record from which to conclude that the severity near service separation approached that portrayed by the VA measurements.Board members agreed that the MEB examination revealed non-compensable limitation of motion, but evidence of degenerative arthritis was present to justify...