RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxx	CASE:  PD1300022
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20130821
SEPARATION DATE:  20050121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty TSgt/E-6 (3M071/Services Craftsman) medically separated for a lumbar spine condition.  She developed low back pain (LBP) in 2002, which persisted and was subsequently diagnosed as non-surgical; degenerative disc disease (DDD).  The condition could not be adequately rehabilitated to meet the operational requirements of her Air Force Specialty.  She was issued a temporary P4/L4 profile and referred for a Medical Evaluation Board (MEB); which forwarded, as the sole condition, chronic mechanical LBP to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The PEB adjudicated the condition as unfitting, rated 10%, IAW DoD and Veterans Affairs Schedule for Rating Disabilities (VASRD) guidelines.  Additionally, the PEB identified a Category III condition (overweight) as not separately unfitting (nor eligible for rating, regardless).  The CI made no appeal and was medically separated.

CI CONTENTION:  “My rating should be increased because I served 14 years, 9 months & 19 days and had the evaluation board not pushed my packet through in record time, I would have been allowed to medically retire at 15 years.  In addition, my back condition (degenerative disc disease) limits my mobility.  I am unable to run at all, stand for longer than an hour or sit for longer than three hours without pain in my lower back.  Due to this limited mobility, I have been unable to exercise like I used to.  Therefore, I have gained approximately 30 lbs since discharge.  I feel this weight gain due to my limited mobility has led to a diagnosis of Diabetes Type II.  Which has not been rated by the VA.”

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 lumbar spine condition is addressed below; and, no additional conditions (to include the referenced obesity and diabetes) are within the DoDI 6040.44 defined purview of the Board.  Those, and any other conditions or contention not requested in this application, 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 her service-connected condition continues to burden her; 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.  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 likewise acknowledges the CI’s assertion that her disability disposition was unfairly rushed, and possibly deprived her of a retirement based on her length of service.  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 sought through the BMCR.
RATING COMPARISON:

Service IPEB – Dated 20041102	VA  (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5242	10%	DDD, Lumbar Spine	5242	10%	20050311	
No Additional MEB/PEB Entries	Right Inguinal Hernia	7338	0%	20050311	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20050512 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:

Chronic Low Back Pain.  The CI first reported LBP in October 2002, without discrete injury or precipitant; and, the pain persisted throughout the balance of her service.  Initial X-rays were consistent with DDD.  The Service treatment record (STR) notes occasional complaints of radiating pain, but no consistent radiculopathy.  Multiple treatment modalities were pursued and the first temporary profile was issued, in May 2003.  Magnetic resonance imaging in November 2003 confirmed single level disc disease at L5/S1 without neural encroachment.  In the absence of neurologic complications, surgery was not indicated.  A protracted trial of medications, physical therapy, chiropractic treatment, epidural/nerve root injections, and other conservative measures failed to restore sufficient functioning for military duties.  Multiple entries in the STR document normal gait, normal lower extremity neurological findings, grossly normal or modestly impaired range-of-motion (ROM); and, there is no documentation of any periods of incapacitation.  There are no documented gross ROM observations that would contradict the measured ROM evidence forming the basis of the Board’s recommendation.  The narrative summary noted the CI’s current symptoms as “constant dull low back pain 2 out of 10 with new activity increasing to 7 out of 10 with activity to include normal daily duties at work with significant restrictions.”  She reported an inability to “run or do sit ups, but able to do limited push-ups;” with additional note of aggravation with repetitive lifting.  The physical examinations (includes orthopedic addendum) revealed a normal gait without comment regarding spasm or tenderness.  Neurologic motor and sensory testing were normal.  Lumbar ROM was described as “patient able to touch fingertips to mid shins bilaterally [roughly 70⁰ flexion], extension 5 = mild pain, lateral bend 25.”  At the VA Compensation and Pension examination (2 months after separation), the CI reported a constant low backache of 2-5 out of 10 in intensity associated with morning stiffness; and, denied any significant neurologic sequelae.  Aggravating factors included lifting greater than 30 pounds, stooping forward, sitting greater than 1 hour, and standing or walking greater than 30 minutes; and, the CI reported 6 days of work loss from the condition (no associated STR evidence).  The VA physical examination revealed a normal gait, normal spinal contour, and the absence of spinal tenderness.  No spasm was described, but some truncal guarding was noted with position change.  Neurological findings were normal.  VA ROM measurements were flexion 65 degrees (normal 90 degrees) and combined ROM 190 degrees (normal 240 degrees); with specific documentation of painful motion.

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and VA applied the clinically compatible code 5242 (degenerative arthritis of the spine), and arrived at the same 10% rating under the VASRD §4.71a general rating formula for the spine which was accurate for the respective ROM’s in evidence.  There was no sufficient documentation for incapacitating episodes which would achieve a higher rating under 5243 (intervertebral disc syndrome).  All members agreed that there was no separately ratable neuropathy for disability, since no functional impairment linked to fitness was in evidence.  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 of the lumbar spine 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.  Any concession to DoD guidance as referenced by the PEB is not applied to the Board’s recommendation.  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:
  
UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain 	5242	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130109, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

Dear xxxxxxxxxxxxxxxxxxxx:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2013-00022.

	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,

Attachment:
Record of Proceedings