RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-01051 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His spinal fusion with Upper Right Radiculopathy, rated at 20 percent under the Veterans Administration Schedule for Rating Disabilities (VASRD, 5241), be changed to two separate unfitting conditions of spinal fusion, (VASRD 5241) with a 30 percent disability rating, and right lower radicular group, (VASRD 8512) with a 40 percent rating. 2. His chronic left shoulder pain (VASRD 8719) rated at 10 percent, be changed to left upper radicular group, (VASRD 8510) with a 30 percent disability rating. _________________________________________________________________ APPLICANT CONTENDS THAT: On 11 Mar 10, the Air Force Formal Physical Evaluations Board (FPEB) determined he was unfit and permanently retired him with a 30 percent disability rating. He was awarded a 20 percent disability rating for spinal fusion under VASRD 5241 and ten percent for chronic left sided pain under VASRD 8719. He requested a 30 percent disability rating for VASRD 5241, based on his limited cervical spine flexion of 15 degrees. However, the range of motion (ROM) examination dated 12 Feb 10, of his cervical spine was not allowed as evidence. Therefore, the FPEB was unable to grant a 30 percent increase because the ROM test conducted on 12 Feb 10, was missing critical information. Subsequently, he underwent a second physical therapy evaluation to provide the missing information. On 22 Feb 11, he underwent a complete medical examination by the Department of Veterans Affairs (DVA). Based on their findings of limited forward flexion of the cervical spine, 15 percent or less, he was awarded a 30 percent disability rating. He also requested a 30 percent rating for left side radiculopathy, (VASRD 8510). However, the FPEB awarded a ten percent rating for long thoracic nerve (VASRD 8719). The DVA awarded him 20 percent for left upper extremity peripheral neuropathy and radiculopathy based on civilian medical records and the DVA medical examination on 22 Feb 11. He requested a separate and unfitting condition of 30 percent for right side radiculopathy VASRD 8516. However, the FPEB stated “The Board does not find any medical evidence of an abnormal nerve conduction study or EMG results which warrant a separate and unfitting condition of Cervical Radiculopathy.” On 15 Mar 10, he underwent a nerve conduction study and Electromyogram (EMG). The neurologist’s conclusion suggested a long-standing/chronic C6-C7 radiculopathy. The neurologist also documented findings of weakness in C6-7, C7-8 and T1 muscles with neck pain. The DVA awarded him 20 percent for right sided upper extremity peripheral neuropathy and radiculopathy based on civilian medical records and the DVA medical examination. The medical examiner opined his bilateral upper extremity pain stemmed from his neck and discs above and below the fusion site. In addition, weakness, decreased sensation, diminished reflexes and peripheral neuropathy and radiculopathy resulted from cervical degenerative disc disease and post cervical fusion. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 8 Jan 10, the IPEB reviewed his case and recommended discharge with severance pay with a 10 percent disability rating. On 15 Jan 10, the applicant non-concurred and requested a formal hearing with counsel. On 11 Mar 10, the FPEB determined that based on a limited ROM and right radicular pain, the FPEB rated his spinal fusion at 20 percent and considered his chronic left shoulder pain to also be unfitting and best rated at 10 percent. The FPEB recommend permanent retirement with a combined disability rating of 30 percent. On 15 Mar 10, the applicant concurred with the recommendation. On 28 Jun 10, he was released from the Air National Guard for diagnosis of spinal fusion with upper right radiculopathy and chronic left shoulder pain. On 29 Jun 10, the applicant was permanently disability retired in the grade of lieutenant colonel with a compensable percentage for physical disability of 30 percent. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD states the preponderance of evidence reflects no error or injustice occurred during the disability process. Based on documents submitted by the applicant, it appears a cervical range of motion supports limited movement to 15 degrees. However, this test was performed after the formal board hearing and was not reviewed by the FPEB. DPSD states there does not appear to be clear evidence of two separate unfitting conditions as a result of cervical spine fusion that supports moderate, incomplete paralysis involving the right lower radicular group or moderate incomplete paralysis of the right upper radicular group. The Department of Defense and the DVA disability evaluation systems operate under separate laws. Under Title 10, USC, Physical Evaluation Boards must determine if a member’s condition renders them unfit for continued military service relating to their office, grade or rating. The fact that a person may have a medical condition does not mean that the condition is unfitting for continued military service. To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career. Further, it must be noted the USAF disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence a snapshot of their condition at that time. It is the charge of the DVA to pick where the AF must, by law, leave off. Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition. This often results in different ratings by the two agencies. The complete DPSD evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In his four-page rebuttal, the applicant reiterates many of his earlier contentions. He discusses the events leading up to the FPEB. He also states the FPEB had clear documentation of his cervical spine from a physical evaluation conducted on 12 Feb 12, which documented cervical flexion at 15 degrees. However, the board claimed they could not use the evaluation as it incorrectly documented the technique of using a goniometer and failed to document in detail how the measurements were obtained. On 14 Mar 10, a subsequent evaluation was performed to satisfy the requirement. He believes his disability forced him to give up the career he worked so hard to attain as well as a large part of his civilian life. He is no longer able to lift or carry heavy objects, lift his arms over head, jog swim, and play racquetball, rake, shovel, sweep or vacuum. He needs cervical spine injections to tolerate the pain in his upper extremities. The applicant’s complete submission is at Exhibit E. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting partial relief. After thoroughly reviewing the evidence of record and noting the applicant’s contention, we find that he should be assigned a separate disability rating for his cervical spine and his right [dominant] upper extremity radicular symptoms. In this respect, we note that Stating both conditions separately is consistent with former DoD and current DVA policy, when cervical disc surgery results in a radiculopathy. Although the applicant’s cervical spine flexion measurement of 15 degrees have been implicitly suspect by a previous board, the sustainment of this range of motion finding upon repeat assessment by a physical therapist, utilizing proper established tools and techniques, and its persistence at a subsequent DVA evaluation, lends some credence to the authenticity of these findings. In addressing the specific disability rating for the applicant’s cervical spine, it is noted the cervical spine forward flexion of 15 degrees or less is consistent with an evaluation of 30 percent, under the General Rating Formula for Diseases and Injuries of the Spine. With respect to his upper extremity radicular symptoms, although his initial complaints appeared to be limited to the left upper extremity, an impartial review of the MEB, a physical examination, and repeat electrodiagnostic studies confirmed the presence of a right [dominant] upper extremity radiculopathy as well. While the FPEB found the left shoulder unfitting, under neurological VASRD code (8719), we believe a 20 percent rating for left upper extremity radicular symptoms, under VASRD code 8510, is more appropriate. Although a 40 percent rating is desired by the applicant for what he characterizes as moderate impairment involving his right upper extremity, it is our opinion that substantial evidence suggests that an assignment of an evaluation of 20 percent, for bilateral mild disease is more appropriate. This is also consistent with the 20 percent rating assigned by the DVA for each of the applicant’s right and left upper extremity radicular symptoms. When combining [not adding] the newly recommended disability ratings, to include a bilateral factor for the upper extremity radiculopathies, a combined compensable rating of 60 percent is achieved. In view of the above, we recommend the applicant’s record be corrected to the extent indicated below. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. On 11 Mar 10, the Formal Physical Evaluation Board, found the applicant unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnoses in his case were cervical spine degenerative disc disease, status- post laminectomy and cadaveric graft arthrodesis, a condition which is rated at a compensable percentage of 30 percent under Veterans Administration Schedule for Rating Disabilities (VASRD) code 5241; right upper extremity radicular symptoms, a condition which is rated at a compensable percentage of 20 percent rating under VASRD code 8512 and left upper extremity radicular symptoms, a condition that is rated at a compensable percentage of 20 percent rating under VASRD code 8510; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; that the disability was received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war; and that the disability was the direct result of a combat related injury. b. On 28 Jun 10, he was relieved from active duty and on 29 Jun 10, he was placed on the Permanent Disability Retired List with a combined compensable disability rating of 60 percent, rather than 30 percent. _________________________________________________________________ The following members of the Board considered this application in Executive Session on 15 Jan 13, under the provisions of AFI 36- 2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2012-01051: Exhibit A. DD Form 149, dated 31 Jan 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, HQ AFPC/DPSD, dated 26 Jun 12. Exhibit D. Letter, SAF/MRBR, dated 2 Jul 12. Exhibit E. Letter, Applicant, dated 26 Jul 12. Panel Chair