RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-00010
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20140701
SEPARATION DATE:  20071105

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E5 (3P07/Security Forces) 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 or satisfy physical fitness standards. He was issued an L4 profile and underwent a Medical Evaluation Board (MEB).  Both chronic LBP and obstructive sleep apnea (OSA) were found medically unacceptable and were forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other conditions were submitted by the MEB.  The Informal PEB found the chronic LBP unfitting and rated it 20% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The sleep apnea condition was adjudicated as Category II (a condition that can be unfitting, but not currently compensable or ratable).  The CI made no appeals and was separated.

CI CONTENTION:  “All issues were not taken into account.  As well as the VA issued a higher rating for condition than MEB.”

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 OSA is also addressed below.  No other conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions outside the Board’s defined scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:  

Service IPEB – dated 20070920	VA – (13 mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5241	20%	Lumbago, with Post Laminectomy Syndrome	5237	20%	20090107	
			Radiculopathy of Left Leg	8520	10%	20090107	
Obstructive Sleep Apnea	6847	Category II	Obstructive Sleep Apnea	6847	0%	20090107	
Combined:  20%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20090223

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that all issues were not taken into account in the Disability Evaluation System process.  It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the DES operates.  The Board’s authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation.  While other symptoms and medical conditions may have been present, compensation can only be offered for those conditions that cut short a member’s career, and then only to the degree of severity present at the time of separation.  However, the VA is empowered to compensate for all service-connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment change over time.

Low Back Pain (LBP).  This CI has had a long history of LBP.  He had spinal surgery in 2001 and again 2 years later.  In May 2003, the CI underwent an MEB and was found fit for duty.  However, in July 2005 his symptoms worsened while he was deployed.  He completed the deployment, returned to his home station and continued to receive treatment for his LBP.  However, the symptoms persisted; therefore a second MEB was initiated.  The MEB narrative summary (NARSUM) dated 17 August 2007 noted that the physical examination of the back revealed no deformity, bruising, swelling or tenderness.  Muscle strength in the legs was normal.  Thoracolumbar range-of-motion (ROM) was performed on 7 August 2007 (10-days prior to the NARSUM date) and is summarized in the chart below.

The CI was separated from service in November 2007.  He was scheduled for a VA Compensation and Pension (C&P) examination in February 2008, but he failed to appear for that exam.  He did have a C&P exam of his spine, 14 months post-separation.  Posture and gait were normal.  On the physical exam of the lower back, the spine was symmetric and there was some lumbar flattening.  Muscle strength in the legs was normal.  There was pain with active ROM.  The post-separation thoracolumbar ROM is summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~ 8 mos. Pre-Sep
(20070306)	MEB ~ 3 mos. Pre-Sep
(20070807)	VA C&P ~ 14 mos. Post-Sep
(20090107)	
Flexion (90 Normal)	44 	35	60	
Combined (240)	130	145	170	
§4.71a Rating	20%	20%	20%	

The Board carefully reviewed all evidentiary information available and determined that the thoracolumbar forward flexion was greater than 30 degrees, but not greater than 60 degrees.  IAW the VASRD §4.71a, a rating of 20% is warranted when thoracolumbar forward flexion is greater than 30 degrees, but not greater than 60 degrees.  After a thorough review of the evidence, the Board determined that a disability rating of 20% was appropriate.  The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition.  However, the other VASRD codes that were considered did not result in a higher rating since the treatment record did not show sufficient evidence of a disabling spine condition which would justify a higher rating.

The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  The CI had neurological symptoms.  However, there was insufficient evidence of muscle weakness and there was no performance based evidence that the radicular condition impacted his military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at separation.  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 LBP condition.

Obstructive Sleep Apnea (OSA).   In 2007, the CI was diagnosed with OSA.  This condition was adjudicated by the PEB as Category II (condition that can be unfitting, but not currently compensable or ratable).  The Board’s main charge is to assess the fairness of the PEB’s determination that OSA was not compensable or ratable.  The Board’s threshold for countering this determination 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.  The OSA condition was not profiled or implicated in the commander’s statement.  It was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the OSA 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 determination that OSA was not compensable or ratable.  Therefore, no additional disability rating 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. 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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the OSA condition, the Board unanimously recommends no change from the PEB determination as Category II (not compensable or ratable).  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 20131216, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXX
President
Physical Disability Board of Review

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-2014-00010

	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,

XXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings