RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxx	CASE:  PD1300160
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20131105
Date of SEPARATION:  20080806

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-5 (6C071/Contracting Craftsman) medically separated for chronic low back pain (LBP).  The CI began experiencing back pain in October 2006 without specific injury or trauma and subsequently underwent back surgery in July 2007.  The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The low back condition, characterized as “chronic back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123 and no other conditions were submitted by the MEB.  The PEB adjudicated “chronic low back pain, status post decompression of L5-S1 and fusion of L4-S1” as unfitting, rated 20%, referencing the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Since having the surgery on my back there are many aspects of my life that have changed and/or become worse.  For starters, the fusion of my L5-S 1 never took.  I can no longer participate in competitive sports.  Sitting or standing for any amount of time causes pain.  I am unable to lift things over 15 lbs without pain or difficulty.  I went through physical therapy at the Veterans Hospital and was released, being told my back was as strong as it was going to get.  This has also impacted my job as a parent.  I have a special needs child and am no longer able to comfort or help her in certain ways due to her weight and my lack of strength.  Even simple things like walking for exercise causes great discomfort and shooting pains in my lower back and down my leg.  Any type of activity that involves bending such as yard work, household chores or merely picking something up that I dropped has some level of pain associated with it.  I have been on a steady prescription of Percocet, taking it nearly every night just to get a solid 6 hours of sleep.  This injury has also affected me with intimacy issues as any amount of discomfort in my back effects my being able to maintain an erection.  I served in the Air Force proudly for 13 yrs in a critical career field and fought to stay in.  The Med Board decided that since I was undeployable that I was to be separated with 20% disability.  Unfortunately, a lot more than 20% of my life has been affected by this injury.”

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; and, 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 20080620	VA - (9 1/2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain, S/P Decompression L5-S1 & Fusion L4-S1	5241	20%	Degenerative Disc Disease, S/P Lumbar Decompression at L4-5 & L5-S1 Fusion	5243-5241	20%	20090530	
			Decreased Sensation Right Leg Assoc. with DDD s/p surgery	8599-8520	10%	20090530	
No Additional MEB/PEB Entries	Other x 7	20090530	
Rating:  20%	Combined Rating:  40%*	
Derived from VA Rating Decision (VARD) dated 20090711 (most proximate to date of separation [DOS]).
* 40% effective 20080807/ 50% effective 20090530.

ANALYSIS SUMMARY:  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 nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB.  However, the 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 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.

Chronic Low Back Pain Condition.  The range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT  ~7 Mo. Pre-Sep
(20080115)	PT ~3 Mo. Pre-Sep
(20080507)	VA C&P ~9 1/2 Mo. Post-Sep
(20090530)	
Flexion (90 Normal)	25	50	60	
Extension (30)	10	10	10	
R Lat Flexion (30)	20	25	20	
L Lat Flexion (30)	30	30	20	
R Rotation (30)	30	30/(35)	20	
L Rotation (30)	30	30/(35)	20	
Combined (240)	145	175	150	
Comment	Prior to maximal improvement after surgery	Active ROM

Gait normal at MEB exam 5May08
	No change after repetition
Slightly antalgic gait; but also reported knee pain
No spasm
Normal spinal contour	
§4.71a Rating	40%	20%	20%	

The CI underwent lumbar spine surgery on 13 July 2007 with decompression and fusion at the L5-S1 level for chronic pain due to degenerative spine and disc disease including disc herniation.  Although recovery was uneventful, he experienced persisting pain.  On 15 January 2008 the ROM examination (noted in the chart) was performed prior to attainment of maximal improvement following the surgery (4 March 2008 PEB memo indicating CI had not attained maximal improvement).  The MEB narrative summary (NARSUM) exam on 5 May 2008, 3 months prior to separation, notes that the CI reported he could perform his duties as contract specialist that did not require lifting although his condition limits his physical training.  The MEB physical exam noted limitation of thoracolumbar ROM without detail.  The examiner noted that the CI’s gait, stance, and reflexes were normal.  The physical therapy ROM examination on 7 May 2008 is recorded in the chart and demonstrated improved ROM since the examination in January 2008.  In his 6 May 2008 memorandum to the PEB, 3 months prior to separation, the CI noted that “since the surgery, I have had zero problems with my leg.  It is strong and is as if I never had any problems with it at all.  As far as my back goes, I unfortunately cannot state the same…Nearly every morning I am extremely sore when I get up and it is often a struggle to even put on my boots. Once I am up and around my back loosens up and the pain level is quite manageable.”  The CI further noted in this memorandum “Even though I have to go at roughly 1/4 speed, I still have been able to play volleyball, dodge ball and even a little half-court basketball.”  The VA Compensation and Pension (C&P) examination on 30 May 2009, 9 months after separation noted the CI had well preserved gait and balance walking from the waiting room to the examination room unassisted and without assistive devices.  The ROM is recorded in the chart and was similar to the May 2008 physical therapy examination and was not decreased after repetition.  The gait was reported to be slightly antalgic, but there was knee pain reported at the examination.  There was no spasm or guarding and the spinal contour was normal (no evidence of excessive scoliosis, kyphosis or lordosis).  Strength was normal, but a decreased right patellar reflex was noted along with a positive straight leg raise.

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the back condition at 20% using the VASRD general rating formula for diseases and injuries of the spine.  The VA also granted a separate 10% rating for decreased sensation right leg associated with the spine disease.  The ROM in both proximate evaluations (MEB and C&P) supports no more than a 20% disability rating, including consideration of VASRD §4.59 (painful motion), §4.40 (functional impairment) or §4.45 (Deluca).  The higher rating would require forward flexion less than 30 degrees, a combined ROM of the thoracolumbar spine not greater than 120 degrees not evidenced in the proximate examinations.  The Board also considered a rating the back condition using the VASRD formula based on incapacitating episodes due to intervertebral disc syndrome (5243).  The criteria were based on the number of incapacitating episodes in the prior 12 months requiring bed rest prescribed by a physician.  No documented physician directed bed rest was evidence in the service treatment records or at the time of the MEB NARSUM or C&P examination.  The Board concluded the evidence did not support a higher rating using this alternate formula providing no additional benefit to the CI.  Finally, the Board considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had intervertebral disc disease with radicular pain treated with surgery; however, the MEB NARSUM and C&P examinations indicated normal strength.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  There was no evidence that the sensory loss that formed the basis for the VA rating had any functional impact on performance of duties.  The Board therefore concludes that additional disability rating was not justified on this basis.  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 low 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 chronic LBP condition status post decompression L5-S1 and L4-L5 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:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain, S/P Decompression L5-S1 & Fusion L4-S1	5241	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130409, 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-2013-00160.

	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