RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01744
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20140724
SEPARATION DATE:  20050510

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SrA/E-4 (4A251/Biomedical Equipment Journeyman) medically separated for chronic low back pain (LBP).  The LBP condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty Code (AFSC) or satisfy physical fitness standards.  He was issued a temporary P4 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic lower back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The MEB also identified and forwarded adjustment disorder with depressed mood.  The Board did not have access to the PEB source document in the record; however, corroborating documentation indicated the PEB adjudicated the LBP condition as unfitting, rated at 10%.  The remaining mental health (MH) condition was apparently not addressed by the PEB in terms of rating, but it was presumed not unfitting as expressed by S1 profile classification.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I had terrible back pain that made it almost impossible to get any daily tasks done.  I was having to constantly ask my supervisor for light duty because the back pain would get so intense that it would go down my right leg.  Not being able to perform any physical activity and having to constantly take drugs to deal with the pain put me into a bad depression. I ended up having to take medication to help with that condition.  When I was discharged the depression was not taken into evaluation and I was given 10% for the back problems that I was having.  Also, I am still currently dealing with back pain.  I have not been able to get the surgery because I was informed that after the operation I would have to take at least a month off from work for it to heal correctly. At this time I am the main source of income for my family so to take time off for the surgery is practically impossible.”

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 LBP condition is addressed below. The adjustment disorder with depressed mood is likewise addressed below.  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 20050331* 	VA - (6 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	-	10%	Lumbar Strain	5237	10%	20051208	
Adjustment Disorder w/ Depressed Mood	Not rated	Adjustment Disorder w/Mixed Emotional Features of Anxiety and Depression	9440	30%	20051107	
Other x 0 (Not in Scope)	Other x 0	20051116	
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20051222 (most proximate to date of separation).
* PEB Air Force Form 356 missing from record; condition rated derived from MEB; and rating award level obtained from CI’s contended statement.

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service incurred condition continues to burden him.  It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  This role and authority is granted by Congress to the Department of Veterans Affairs (DVA).  The 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 the degree of impairment vary over time.  The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  The Board utilizes VA evidence proximal to separation in arriving at its recommendations and, DoDI 6040.44 defines a 12 month interval for special consideration to post-separation evidence.  Post-service separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.  Additionally, the Board acknowledges that the original PEB adjudication (Air Force form 356) was not available in the evidence before it and could not be located after appropriate and documented inquiries.  Further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case.  The missing evidence will be referenced below in relevant context; and, it is not suspected that the missing evidence would significantly alter the Board’s recommendations.

Low Back Condition.  The CI initially had non-traumatic LBP in early 2002 upon lifting heavy equipment.  Initially treated for a back strain, radiologic tests later revealed degenerative disc disease (DDD) and a disc herniation at L5-S1 level.  There was no persistent radicular component to his LBP.  Physical therapy (PT), local injections, and electrical nerve stimulation did not result in alleviating his painful symptoms.  In March 2004, the Service treatment record (STR) indicated a description of his back pain as “severe” causing an interference with activities such as working, household chores, sexual relations, physical exercise, driving, and self-care.  In July 2004, the STR indicated the CI as being “very frustrated” about his continuing LBP.  A discogram (radiology examination) provided a definitive diagnostic etiology of true disc-originating pain and surgical options were entertained.  He was referred for MEB.  The MEB narrative summary (NARSUM) performed on 17 December 2004 (5 months prior to separation) simply reviewed the CI’s LBP condition.  The physical exam (PE) noted localized LBP associated with painful limited range-of-motion (ROM).  Sensory, motor, and neurologic functions were normal or intact.  His diagnosis was progressive “mechanical-type” LBP noting a positive discogram at L4-L5.  A NARSUM addendum performed a month later (21 January 2005), the CI reported the LBP is worsened by bending, twisting, lying supine or prone or sitting or standing for prolonged periods.  Alleviating factors included lying on his side.  His PE revealed back tenderness and painful motion.  There were no sensory or motor deficits present.  The diagnosis remained unchanged.  The commander’s statement reflected physical restrictions as his inability to perform AFSC duties.

At the VA Compensation and Pension examination performed on 08 December 2005 (7 months post-separation), the CI reported LBP upon bending and lifting that “…does not have a significant effect on his occupation” and “he is able to do the activities of daily living except that he cannot lift heavy things or bend”.  The PE revealed non-painful limited motion and negative Deluca criteria.  There was no weakness, spasm, or abnormal neurological findings present.  Plain film X-rays of the lumbar spine performed with this examination revealed no boney pathology.  The goniometric 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.

DOS 20050510
Thoracolumbar ROM
(Degrees)	PT ~9 Mo. Pre-Sep
(20040824) 	MEB ~ 4 Mo. Pre-Sep
(20050121) 	VA C&P ~ 7 Mo. Post-Sep
(20051208) 	
Flexion (90 Normal)	100	80	70	
Extension (30)	10	10	10	
R Lat Flexion (30)	30	30	25	
L Lat Flexion (30)	40	40	25	
R Rotation (30)	-	-	5	
L Rotation (30)	-	-	5	
Combined (240)	-	-	#	
Comment	normal gait	painful motion	-	
§4.71a Rating	NR-0%-10%	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  Absent Air Force Form 356, the Board cannot be certain as to the unfitting condition, however the Board presumed the condition was as referred by the MEB; and as noted from the CI, the PEB’s rating level was the same as the VA at 10%.  Board members agreed that sufficient evidence of painful motion was present to justify the rating of 10% IAW VASRD §4.59, as well as compensable ROM IAW §4.71a.  Board members additionally considered application of §4.40 (functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled” and clearly, the persistence of painful motion was such the case in this condition at the MEB examination.  The ROM values reported by the VA examiner (7 months post-separation) were less than those reported by the MEB examiner (4 months prior to separation).  There was no record of recurrent injury or other development in explanation of the declining values.  While ROM limitations increased, the non-ROM findings since the MEB exam had improved or resolved (painful motion).  Board members conceded that absent incapacitating episodes, either examination supported no higher impairment rating than the current 10%.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the chronic LBP condition was appropriately recommended in this case.

Adjustment Disorder with Depressed Mood.  Board members first acknowledged the CI’s “personal frustration” in having many unsuccessful treatments for a painful physical condition resulting in a depressed mood presentation.  However, in this case, the “depressed mood” is not in itself a condition of depression, but rather a simple descriptor of an emotional state in reference to the primary condition of adjustment disorder.  The Board concurred with the diagnosis of adjustment disorder, notes this MH condition is not a physical disability, and is not ratable IAW DoDI 1332.38.  The Board agreed that evidence of the record reflected minimal MH related symptoms.  There was no evidence of emergency room visits, hospitalizations, or intensive outpatient psychiatric treatment.  The commander’s statement did not implicate a MH issue and a MH condition was never profiled.  The Board therefore concluded that there was not a preponderance of evidence to indicate that any MH condition, regardless of diagnosis, existed and rose to the level of being unfitting at the time of service separation and therefore none were subject to a disability rating.

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 and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended adjustment disorder w/ depressed mood condition, the Board unanimously agrees that it cannot recommend it for additional 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.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131023, 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-2013-01744

	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