RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	 CASE:  PD-2014-00040	
BRANCH OF SERVICE:  AIR FORCE	SEPARATION DATE:  20070720		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Security Forces Helper) medically separated for low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty 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 “low back pain with congenital spinal stenosis, L4-5 with DDD posterior left paracentral HNP, L4-5” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated the low back condition as a Category II condition that can be unfitting but is not currently compensable or ratable.  The IPEB found the member unfit for continued service, but determined the condition existed prior to service (EPTS) and was not permanently aggravated through military service and therefore did not rate the condition.  The CI appealed to a Formal PEB (FPEB) which adjudicated the low back condition as unfitting, rated 10%.  The CI made no further appeals, and was medically separated.

CI CONTENTION:  The CI stated his VA rating within 8 months of separation was 40%.  His complete submission is at Exhibit A.  

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:  
   
Service FPEB – Dated 20070524	VA – (8 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5243	10%	Low Back Pain	5243	20%	20080304	
			Right Lower Extremity Radiculopathy	5243-8520	10%	20080304	
			Left Lower Extremity Radiculopathy	5243-8520	10%	20080304	
Other MEB/PEB Conditions x 0  (Not in Scope)	Other x 0 (Not in Scope)	20080304	
Rating:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20080324 (most proximate to date of separation [DOS])   

ANALYSIS SUMMARY:   

Low Back Pain (LBP).  In November 2006, this CI injured his back while lifting heavy duffle bags.  Magnetic resonance imaging (MRI) revealed canal stenosis at L4-L5, with left posterior disc extrusion.  On 23 January 2007, he was seen by Neurosurgery.  The CI was not a good surgical candidate, and he did not want to have surgery on his back.  He was treated with medication, physical therapy (PT), and other conservative measures.  In spite of all treatment efforts, the LBP persisted and an MEB was initiated.  

The MEB narrative summary (NARSUM) was dated 16 February 2007.  The pain was described as a constant, dull ache.  He also had an intermittent shooting sensation down into his buttock and posterior thigh (left greater than right).  The back pain was aggravated by stooping, bending, lifting, standing, walking, or prolonged sitting.  The CI denied any significant weakness of the lower extremities.  On physical examination (PE), minimal tenderness was noted at the lumbosacral junction.  There was loss of lumbar lordosis, with slight paraspinal muscle spasm.  Active range-of-motion (ROM) was limited to approximately 30 degrees of flexion, due to pain.  Side bending and rotation were normal (30 degrees).  Heel walk, toe walk, and tandem walk were all normal.  Knee jerk and ankle jerk reflexes were normal.  The NARSUM examiner wrote: “It is unlikely that this individual will be able to make any significant functional improvement to allow continuation of his training.”     

The CI was medically separated from service in July 2007.  Several months later, in March 2008, he had a VA Compensation and Pension (C&P) exam.  He was not employed at that time.  He had not sought any medical attention since his discharge 7 months previously.  The CI reported that he had pain with standing or sitting for long periods.  His back felt best when he was lying down.  He said: “Driving is rough, because of sitting in one position too long.”  On PE, gait was normal.  There was no guarding, spasm, or tenderness of the spinal muscles.  Straight leg raise (SLR) was positive.  Neurological exam was normal.  The ROM evaluations in evidence which the Board weighed in arriving at its recommendation, are summarized below.

Thoracolumbar ROM
(Degrees)	MEB ~ 5 mos. Pre-Sep
(20070214)	VA C&P ~ 7½ mos. Post-Sep
(20080304)	
Flexion (90 Normal)	30	45	
Extension (30)	20	30	
R Lat Flexion (30)	30	30	
L Lat Flexion (30)	30	30	
R Rotation (30)	30	30	
L Rotation (30)	30	30	
Combined (240)	170	195	
Comment	Motion limited by pain	Motion limited by pain	

The Board carefully reviewed all available evidence, and directed attention to its rating recommendation based on the evidence.  The Air Force PEB and the VA chose different rating options for the LBP condition.  The PEB assigned a rating of 10%, while the VA rated it 20%.  The Board noted the disparity between the back ROM exams which are described above.  At the January 2007 MEB exam, forward flexion was limited to approximately 30 degrees.  The Board found some discrepancies and inconsistencies with that January 2007 MEB exam, which caused the Board to question its validity and probative value.  For example, a limitation of thoracolumbar forward flexion to 30 degrees would certainly present difficulties with certain activities such as dressing oneself, sitting in a chair, riding in a car, or climbing onto the examination table.  The record does not indicate that the CI had any of these difficulties with his activities of daily living (ADLs).  

The Board determined that the measurements from the March 2008 C&P exam had greater probative value.  At that exam, forward flexion was 45 degrees.  IAW the VASRD §4.71a, a 20% rating 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.  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 rating higher than 20%.    

The Board also considered the matter of radiculopathy.  After review of all the information in the treatment record, there was insufficient evidence of a clinically significant radiculopathy that interfered with performance of military duties.  The CI did have neurological symptoms.  However, both the February 2007 NARSUM exam and the March 2008 C&P exam failed to show any significant motor weakness or other significant neurological deficit in the lower extremities.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the unfitting LBP condition.  It meets criteria for the 20% rating level, due to thoracolumbar forward flexion greater than 30 degrees, but not greater than 60 degrees.    

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 LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5238-5242, IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration. 

RECOMMENDATION:  The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Low Back Pain 	5238-5242	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131218, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-00040.

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 not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended modification of your assigned disability rating without re-characterization of your separation with severance pay. 

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding, accept their recommendation and direct that your records be corrected as set forth in the attached copy of a Memorandum for the Chief of Staff, United States Air Force.  The office responsible for making the correction will inform you when your records have been changed.

Sincerely,

XXXXXXXXXXXXXXX 
Director
Air Force Review Boards Agency

Attachment:
1.  Directive 
2.  Record of Proceedings  

cc:
SAF/MRBR