RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD1300189
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20140114
SEPARATION DATE:  20030428

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SrA/E-4 (1C351/Command Center Controller) medically separated for chronic lower back pain.  She was initially diagnosed with "Myofascial pain of rhomboids” and low back "overuse syndrome," and could not be adequately rehabilitated to meet the physical requirements of her Air Force Specialty.  She was issued a permanent P4 U4 L3 S2 profile and referred for a Medical Evaluation Board (MEB).  The spine condition, characterized as “chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The MEB also identified and forwarded one other condition (depression) for PEB adjudication.  The PEB adjudicated lower back pain as unfitting, rated 10%, referencing DoDI and VA Schedule for Rating Disabilities (VASRD) guidelines.  The remaining condition was determined to be not unfitting (Category II - conditions that can be unfitting but are not currently compensable or ratable).  The CI made no appeals and was medically separated.

CI CONTENTION:  “ It should be looked at according to VASRD instead of DODI 1332.39.”  The CI also listed depression on her application.

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 ratings for the unfitting lower back condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The mental health condition, identified as not unfitting by the PEB, was requested for review and is considered within the defined scope.  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 20030211	VA 	
Condition	Code	Rating	Condition	Code	Rating	
Chronic Lower Back Pain Mechanical	5295	10%	Mechanical Low Back Condition	5295-5237	10%*	
Depression in Remission	Not Unfit	--	Major Depressive Disorder	9434	10%	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20070808.
* 5295-5237 increased to 20%, effective 20070315 based on exam done 20070501.

ANALYSIS SUMMARY:

Chronic Lower Back Pain, Mechanical.  According to service treatment records (STRs) and the MEB narrative summary (NARSUM), the CI had onset of low back pain (LBP) without history of trauma in 2001.  She was referred to physical therapy and had resolution of her LBP by 11 October 2001.  The CI reinjured her back when she slipped on slippery stairs on 4 January 2002 after which she complained of worsening pain.  In February 2002, it was noted that the stress of working 12-hour shifts apparently made her back pain worse.  At the time of a clinic examination on 19 February 2002, the examiner reported findings of “normal flexion, extension and lateral trunk movements (she has never had any nerve impingement symptoms throughout her course).”  She was referred to the physical medicine and rehabilitation clinic in March 2002.  Examination findings noted pain and muscle spasms with palpation of the back muscle bands with radiation into the upper back and rhomboid.  Treatment did not provide relief and a profile limiting her to one type of duty shift was prepared.  At a 10 May 2002 appointment, the CI reported she was doing well on daily medication and having a regular work schedule.  Diagnostic studies ordered to include X-ray and magnetic resonance imaging (MRI) of the thoracic and lumbar spines performed on 8 May 2002 were normal.  In September 2002, she became pregnant with an estimated delivery date of 3 June 2003.  The shift work restriction of her profile was continued.  The MEB NARSUM prepared on 3 January 2003 noted that the CI no longer had LBP but had pain in her mid-back which she described as doing well in response to daily medication.  At the time of the MEB NARSUM evaluation, the CI was approximately 5 months pregnant and no examination was performed.  The MEB NARSUM referred to the examinations noted above performed prior to her pregnancy.  There was no VA Compensation and Pension examination (C&P) proximate to the date of separation available for review.  VARD documents reflect an initial VA rating of 10% from the day after separation until 15 March 2007 when the rating was increased to 20% based on a VA C&P examination performed 1 May 2007, 4 years after separation.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the CI’s back pain 5295 lumbosacral strain and rated it 10%.  The VARD and C&P examination proximate to separation are not in evidence in the STR however the subsequent VARD dated 8 August 2007 described the chronic LBP as mechanical LBP coded 5295-5237 (lumbosacral strain under old and revised VARD respectively), mechanical low back condition lumbosacral strain, indicating that the prior rating decision was 10% effective the day after separation.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  The Board notes that the 2003 VASRD standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards effective 26 September 2003.  The Board must correlate the above clinical data with the earlier 2003 rating schedule (applicable diagnostic codes include: 5292 limitation of lumbar spine motion; 5293 intervertebral disc syndrome (based on incapacitating episodes); and 5295 (lumbosacral strain).

The normal range-of-motion for her back noted in the NARSUM from the NARSUM physician’s February 2002 examination and the physical medicine and rehabilitation clinic examination would have resulted in an adjudication of 0% under codes for limitation of back motion (5291 and 5292).  The Board considered rating under code 5293 intervertebral disc syndrome.  An MRI scanning did not demonstrate intervertebral disc disease and there were no symptoms suggestive of it to support consideration for rating under that code.  Furthermore, there was no evidence in the STR that there were any incapacitating episodes (due to intervertebral disc syndrome) requiring bed rest ordered  by a physician that would support the minimum rating.  The Board reviewed the rating under code 5295, lumbosacral strain, used by both the PEB and the VA.  The Board did not find evidence to support a rating higher than 10%, characteristic pain motion, as reported during activity.  There were not findings of marked limitation of forward motion, listing of the whole spine to one side or other findings to support the 40% rating under this code.  Similarly, ther was not spasm on extreme forward bending or unilateral loss of lateral motion to support the 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change to the IPEB’s disability rating of 10% for the chronic lower back pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the depression condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  In February 2002 the CI described that her then persistent back pain along with the stressful work in the command and control center made her “emotional” and she felt she “may be becoming depressed.”  During a year of talk therapy she did not appear to be improving in her mood disorder.  At her clinic follow-up at the Life Skills Support Center on 7 March 2002, the CI was permanently decertified from Personnel Reliability Program duties.  She was profiled S2, non-worldwide deployable and a course of antidepressants was initiated.  The CI improved on both the antidepressants and limited shift duties to the extent that on 24 April 2002, her S2 profile was lifted and she was determined to have no continuing psychiatric disorder and had no restrictions from a psychiatric perspective.  The applicant asked that her file be re-opened in June 2003, and in July 2003 an S2 profile was subsequently reinstituted.  The MEB psychiatric addendum dated 27 November 2002 noted the CI’s depression was improving with medication such that she stated her previous symptoms were now “non-existent.”  The psychiatrist concluded with diagnosis of major depressive disorder, single episode, resolving with treatment.  A Global Assessment of Functioning of 70 (some mild symptoms) was assigned.  The commander’s statement dated 3 January 2003, which noted the CI desired to separate from service, does not include depression as a condition that affected the CI’s ability to perform her duties or function as required by her mission.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded  there was insufficient cause to recommend a change in the PEB fitness determination for the contended depression condition and therefore no additional disability is recommended.

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.  In the matter of the chronic lower back pain mechanical condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended depression in remission condition, the Board unanimously agrees that it cannot recommend it for additional separately unfitting disability rating.  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 Lower Back Pain Mechanical	5295	10%	
Depression In Remission	Cat II	--	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130415, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

Dear XXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2013-00189.

	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