RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	case:  pd-2013-01492
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20140924
Separation Date:  20080708

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E-5 (3P051/Security Forces Journeyman) medically separated for a back condition which could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a P3/U2/L4 profile and referred for a Medical Evaluation Board (MEB).  The degenerative disk disease (DDD), chronic low back pain (LBP) and neuropathy-mild left ulnar at elbow conditions were forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other conditions were submitted.  The Informal PEB (IPEB) adjudicated chronic low back pain associated with DDD as Category I condition, rated at 10%.  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I feel the level that my service connected disability affect my activities of daily living are far greater than 20%.  Also, my bilateral foot condition started in basic training and have been a problem ever since.  Therefore of [it] should be service connected.”

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 Category I unfitting back condition and contended Category II not-unfitting neuropathy condition are addressed below.  The contended bilateral feet condition was not identified by the MEB or PEB and thus is not within the DoDI 6040.44 defined purview of the Board.  Any other condition or contention not requested in this application remains eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the impairment with which the CI’s service-connected conditions continue to burden him, but notes the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and available evidence to assess the fairness of PEB rating determinations, compared to Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20040429	VA - (11.6 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP associated with DDD	5242	10%	Lumbosacral Spine with L5-S1 Right Central Disc Protrusion	5237	10%	20050622	
Mild Left Ulnar Neuropathy	8616	Cat II	Mild Left Ulnar Neuropathy	8516	10%	20050622	
Other x1(Not in Scope)	Other x2	20050622	
Combined:  10%	Combined:  20%	
*Derived from VA Rating Decision (VARD) dated 20050803 (most proximate to date of separation)

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  The DES can only offer compensation 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 Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate 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.

Chronic LBP associated with DDD Condition.  The CI reported developing throbbing LBP after lifting weights.  Emergency room evaluation physical findings were of tenderness to palpation at the bilateral sacroiliac joints.  The CI was followed by family practice and physical therapy throughout 2003 and 2004 for ongoing LBP and radicular pain.  The CI’s STRs contained documentation by a neurosurgeon who noted the CI’s LBP with intermittent radiation into the lower extremities with normal strength and reflexes.  A magnetic resonance imaging of the lumbar spine, obtained in October 2003, reveals L5-S1 DDD with mild central disc protrusion.  

The CI was being seen by neurology for intermittent episodes of severe LBP that radiated to his right buttock for duration of 1 or 2 days.  The examiner’s findings were of mild bilateral lumbar paraspinal spasm also a slightly antalgic gait.  The examiner diagnosed chronic LBP secondary to DDD at L5-S1 without radiculopathy or myelopathy.  

The narrative summary (NARSUM) addendum dated 11 February 2004, documented the CI had considerable neuropathic pain in the lower extremities and debilitating pain in the lower back on a consistent basis.  The examiner opined that the CI prognosis was fair to poor due to the failure of multiple oral pain medication trails and other pain management treatments.  The MEB NARSUM exam accomplished (approximately 3 months prior to separation) documented that the CI’s back condition had not responded to treatment.  The physical exam findings are summarized in the chart below.

The VA Compensation and Pension (C&P) examination (approximately 12 months after separation) documented that the CI had constant aching pain in his lumbosacral spine that flares if he stood longer than five to ten minutes or when he sat.  When he sat with poor posture he also had aching in both legs.  The VA C&P physical exam findings are summarized in the chart below.

There was one goniometric range-of-motion (ROM) evaluation in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation, as summarized in the following chart:

Thoracolumbar ROM(Degrees)	NARSUM 3 Mos. Pre-Sep	VA C&P 11.5 Mos. Post-Sep	
Flexion (90 Normal)	No ROMs	90	
Combined (240)		240	
Comment	Mild left paraspinal tenderness; No muscle spasm; Normal reflexes, gait, strength & sensation	Normal gait; No muscle spasm or tenderness; Pos. painful motion; Neg. straight leg raise	
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the chronic LBP associated with DDD condition as 5242 (degenerative arthritis of the spine) and rated at 10%.  The VA coded the lumbosacral spine with L5-S1 right central disc protrusion without foraminal or canal stenosis condition as 5237 (lumbosacral or cervical strain) and also rated it 10%.  The Board considered the 10% rating criteria – “localized tenderness not resulting in abnormal gait or abnormal spinal contour.”  All exams proximate to separation documented paraspinal tenderness at the mid to lower lumbar regions and the only exam with ROM measurements documented normal thoracolumbar ROM.  The “General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  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 chronic LBP associated with DDD condition.

Contended PEB Condition.  The PEB adjudicated the contended mild left ulnar neuropathy condition as a Category II condition.  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.  Although this condition was profiled, it was not specifically addressed in the commander’s statement.  An electromyogram obtained in October 2003 demonstrated a mild lesion of the left ulnar nerve at the elbow.  The neurologist’s examination findings were of normal strength, normal sensory exam and normal reflexes of the upper extremities.  The MEB NARSUM examiner findings were of normal motor and sensory exams; however, symptoms could be exacerbated in the upper extremity with compression of the ulnar nerve at the elbow region.

The VA C&P examiner documented that the CI did not have constant pain but was intermittent and that the pain resolved without treatment.  This condition was reviewed by the action officer and considered by the Board.  There was no indication from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the mild left ulnar neuropathy condition and therefore no additional disability ratings can be 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.  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 associated with DDD condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended mild left ulnar neuropathy condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI's disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130517, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	

		

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-2013-01492

	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.

							

Attachment:
Record of Proceedings