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AF | PDBR | CY2014 | PD 2014 00998
Original file (PD 2014 00998.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX     CASE: PD-2014-00998
BRANCH OF SERVICE: Air force     BOARD DATE: 20140911
SEPARATION DATE: 20090626


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E-5 (2W071/Munitions Systems) medically separated for a back condition. The intervertebral disc syndrome condition could not be adequately rehabilitated to meet the physical requirements of her Air Force Specialty (AFS) or satisfy physical fitness standards. She was issued a profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “low back pain for greater than a year” by the Medical Evaluation Board (MEB) was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123. No other conditions were submitted by the MEB. The Informal PEB adjudicated “intervertebral disc syndrome” as unfitting and rated it at 10% citing criteria of Department of Defense Instructions and the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION : “ The initial rating of 1 0% did not take into account all issues relating to back and neck injuries/pain. Upon separation the VA disability rating rated these issues at 50%. I would kindly request a review based on the seriousness of the back and neck problems and the continued need for military care and support that these medical problems have incurred. ”


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 low back condition is addressed below; 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.


 RATING COMPARISON :

Service IPEB – Dated 20090413
 VA - (6 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Intervertebral Disc Syndrome 5243 10% Lumbar Strain to include Scoliosis and DDD 5237 20% 20091208
Other x 0 (Not in Scope)
 Other x 9 (Not in Scope) 20091116
Combined: 10%
 Combined: 40%
Derived from VA Rating Decision (VA RD ) dated 20 1 0 0726 (most proximate to date of separation ).


ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service connected by the VA but not determined to be unfitting by the PEB. However, the Department of Veteran Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should his degree of impairment vary over time. The Board’s role is 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 severity at the time of separation.

Low Back Condition. The CI initially noted the onset of low back pain (LBP) in 2005 that she associates with lifting heavy objects/items. A magnetic resonance imagines (MRI) obtained on 30 September 2006 showed a probable herniation of the disc at L5-S1 and a possible tear at L4-5. A scoliosis survey obtained on 5 April 2007 confirmed a right deviation of 7 degrees which was initially noted during a physical examination in the pain clinic. Lumbar spinal X-ray images obtained on 22 September 2008 were normal while a repeat MRI dated 7 October 2008, revealed degenerative disc disease at L4-5 and L5-S1. An electrodiagnostic studies obtained on 
3 November 2008, revealed that there was no indication that the CI had any symptoms of radiculopathy or neuropathy (damage to the nerve root or peripheral nerve). Her treatment included non-steroidal anti-inflammatory medication, [steroids] injections, physical and chiropractic therapy as well as restricted duties. Despite conservative treatments, the CI continued to have LBP without resolution; therefore she was referred for MEB proceedings.

The narrative summary (NARSUM) dated 8 January 2009; the CI reported that her pain began in the summer of 2005 while lifting heavy objects at work. She also stated that her pain had progressed to the level where she’s unable to fully perform her duties and was assigned office work/details. She was noted to be non-deployable and her lumbar range-of-motion (ROM) was painful.

At the general VA Compensation and Pension (C&P) examination performed on 16 November 2009, approximately 5 months post separation, the CI reported continued pain. Her gait and “neuromuscular” function were normal. During her spinal C&P examination in December 2009 (date omitted), the CI reported that she had pain that radiated [down] into her right lower extremity with prolonged activities. She also stated that her back condition had worsened since her separation and she denied having incapacitation episodes. The VA examiner noted to have a mild scoliosis from T5 to T10, a right leg 0.25 inches shorter than her left leg, minimal spasm was noted and sensory and motor examinations were normal.

The goniometric ROM evaluations in evidence (VA C&P spine exam) which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are charted below. The Board noted that the VA examiner recorded measurements for the dorsal (thoracic) and lumbar spine; the values for the latter were thought to include the ROM from both the thorax and lumbar spine and are used below for rating.

Thoracolumbar ROM
Degrees
PT ~8 Mo. Pre-Sep
 VA C&P ~7 Mo. Post-Sep
Flexion (90 Normal)
85
 90
Comment
 -- Minimal spasm noted
§4.71a Rating
 10% 10%

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the back at 10% using the code 5243 (intervertebral disc syndrome). The VA coded the back 5237 (lumbosacral strain) and rated it 20% citing scoliosis secondary to spasm. The Board observed that while scoliosis was present, it was long standing and most consistent with congenital scoliosis although this was not recorded. It was noted to be present when spasm was not recorded and a family member also had scoliosis, both consistent with the presence of congenital scoliosis rather than secondary to spasm. In addition, the spasm was noted to be “minimal” by the VA examiner. Aside from the scoliosis attributed to spasm by the VA rater, neither examination supports a rating higher than the 10% adjudicated by the PEB. The ROM was near normal, incapacitation absent and the spasm minimal. The criteria for a 20% rating for spasm are “ muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis ” . In this case, the scoliosis was present independent of recorded spasm and additionally the examiner noted that the spasm was minimal. This does not support a 20% rating for scoliosis secondary to spasm. The Board also considered if an unfitting neuropathy (nerve condition) was present at separation, but both the NARSUM and VA C&P examination documented normal function. 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 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 recharacterization of the CI’s disability and separation determination, as follows:


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20141226, 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-2014-00998

         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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