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AF | PDBR | CY2014 | PD 2014 00237
Original file (PD 2014 00237.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX     CASE: PD-2014-00237
BRANCH OF SERVICE: AIR FORCE     BOARD DATE: 20140729
SEPARATION DATE: 20060411


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Air National Guard SSG/E-5 (2A753/Aircraft Structural Repair) medically separated for a back condition. The back condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty (AFS). He was issued an L4 profile and referred for a Medical Evaluation Board (MEB). The back condition characterized as “low back pain with lumbar degenerative disc disease” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123. No other conditions were submitted by the MEB. The Informal PEB adjudicated “low back pain with lumbar degenerative disc disease” as unfitting, rated at 20% with referenced application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI appealed to the Formal PEB which affirmed the PEB findings and recommendations and the CI was medically separated.


CI CONTENTION: “ I prepared my responses to the PEB and Air Force prior to being provided Air Force counsel (I do not remember his name). I disagreed with being separated from the mili tary. The counselor assigned to me advised me that sending in responses to the PEB and Air Force on my own was "silly" and that I made a mistake not seeking counsel prior. I was advised that because of my actions, the most I could be awarded was 20%, though my medical file contained additional evidence of other medical conditions that also limited my performance and were also treated by the Air Force, just as my back injury. I advised my counsel that my civilian work was my only means of income, since I had not been able to perform and be compensated f o r Air Force Guard weekend drill. I advised him that taking off work for this could negatively affect my employment at my employer. The counsel stated that me not being at the board would negatively affect my case. In my view, I was in a lose: lose scenario with no one in my corner, and really no financial means to hire appropriate counsel to represent me in my absence . My primary condition has altered my life significantly since being separated, as I can no longer maintain employment that requires routine manual labor. I have had to seek and obtain employment that allows me to perform office work. My other medical conditions also comparatively limit my ability to remain in employment that requires manual labor. I also feel that the Air Force provided counsel, but from my experience, the person assigned to me did not have my best interest in mind. I feel he had the best interest of the Air Force in mind. I request a review of my case and ask for military retirement due to my conditions, time in service, and lack of adequate counsel to provide representation in my best interest. ( Additional deleted comments (see attached DD FM 294) in reference to above concerns are addressed in Scope below).”


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; no additional conditions are within the DoDI 6040.44 defined purview of the Board. The VA service connected conditions were not identified by the October 2005 MEB or subsequent PEB and are not 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 20060103
 VA - (16 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Low Back Pain w/Degenerative Disc Disease 5241 20% Lumbar Spine, Degenerative Disc Disease 5237 10% 20041214Missing
Other x 0 (Not is Scope)
 Other x 9
Rating: 20%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 50829 ( most proximate to date of separation ). CI was originally rated 5237 at 10% effective 20030814 and requested an increase .


ANALYSIS SUMMARY: 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, operating under a different set of laws.

The VA Compensation and Pension (C&P) was not available in evidence before the Board and could not be located after appropriate inquiries. Further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case. The Board further noted that the VA Rating Decision (VARD) referenced in detail the results of this exam in the explanation of its rating decision. The Board unanimously agreed that the evidence referenced in the available VARD was sufficiently probative such that the missing document would not materially affect the Board’s final recommendation.

Low Back Pain with Degenerative Disc Disease. The CI first injured his back during sports in 1994. The condition responded to conservative treatment. Symptoms of pain reappeared in 2003 after re-injury during duty. A magnetic resonance imaging (MRI) obtained on December 2003, revealed discs at multiple levels without evidence of significant spinal stenosis or nerve impingement; unchanged on similar study, May 2005. The VA C&P examination performed on 14 December 2004, 16 months prior to separation, was not available for review by the Board. The VARD, dated 29 August 2005, recorded forward flexion of the back of 90 degrees without pain; combined range-of-motion (ROM) of 225 degrees; normal motor/sensory exam; no spasm, radiculopathy, or DeLuca criteria. At the neurosurgical evaluation dated 10 June 2005, the examiner noted the CI to be improved on his exercise program and stated that the CI was “somewhat symptomatic but certainly not surgical.” The MEB/NARSUM evaluation, performed on 14 December 2005, 3 months prior to separation, the CI reported continued back pain and “intermittent neuropathy.” During the physical examination, the CI’s gait and stance were normal; examination of the back revealed no tenderness or spasms; a normal ROM and motor function was reported as normal. A physical therapy addendum (not in record but referenced by the NARSUM), prepared on 16 January 2005, recorded forward flexion of 50 degrees with pain and a combined ROM of 160 degrees for the back.

The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the back condition as 5241 (spinal fusion) rated at 20%, citing forward flexion of 50 degrees. The VA coded the back condition as 5242 (arthritis of spine) rated at 10%, citing a combined ROM of 225 degrees. Under ROM criteria a rating of 10% requires forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or a combined ROM of 120 degrees to 235 degrees. The next higher rating of 20% requires flexion of the lumbosacral spine greater than 30 degrees but not greater than 60 degrees or a combined ROM of not greater than 120 degrees. The next higher rating of 40% requires forward flexion of 30 degrees or less. The Board agreed the evidence in record supported a rating no higher than 20% for the back condition for reduced ROM, IAW §4.71a. The Board agreed there was no ratable peripheral nerve impairment in this case, since the preponderance of evidence in record showed that no motor weakness was present and sensory symptoms had no functional implication. The Board considered a rating under code 5243 (incapacitating episodes/intervertebral disc syndrome) but concluded that there was insufficient evidence to recommend a rating under this code. 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 agreed 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 low back pain 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 20140102, 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-2014-00237

         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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