RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXX						CASE:  PD-2014-00338
BRANCH OF SERVICE:  AIR FORCE	SEPARATION DATE:  20061117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Security Police) medically separated for a lumbar spine condition which could not be adequately rehabilitated to meet the physical requirements of her Air Force Specialty (AFS) or satisfy physical fitness standards.  She was issued a temporary L4 profile and referred for a Medical Evaluation Board (MEB).  The diagnosis “chronic back pain” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The Informal PEB adjudicated “chronic low back pain” as unfitting, rated 10%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  The application elaborated a worsening post-separation course of the CI’s condition and her current disability and limitations, stating that her rating was unfairly low and that she “was not ready to leave the Air Force.”  

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 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:  

IPEB – Dated 20060911	VA* - (~6 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Lumbar Disc Disease	5239	10%	20070509	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 4 	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20071001 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Lumbar Spine Condition.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of an atraumatic onset of low back pain with some left lower extremity (LLE) radicular symptoms (pain radiation and sensory) in basic training (1998).  Imaging confirmed localized disc disease (L5/S1) and the symptoms progressed despite conservative measures.  A surgical laminectomy (November 2005, 12 months pre-separation) failed to provide adequate remedy.  There are STR entries noting grossly normal or minimally limited range-of-motion (ROM), entries noting normal gait, and numerous entries documenting normal neurologic findings (5/5 strength) except for distal LLE sensory impairment.  There is no STR documentation of significant ROM limitation, abnormal gait or spinal curvature, more significant neurological deficits (or adverse functional limitations associated with the above sensory impairment), or incapacitating episodes (after surgical recovery).

The NARSUM was conducted 5 July 2006 (5 months pre-separation) and documented pain rated 5-6/10 with LLE radiation and “some numbness and tingling.”  No functional limitations were elaborated other than profile restrictions (permitting self-paced running and walking).  The NARSUM physical examination recorded tenderness without spasm (no comment on gait or spinal contour), and normal neurologic findings (“good strength”) except for “decreased sensation along the left lateral calf and lateral foot.”  The NARSUM ROM observations were “fair” lateral bending and normal flexion (“touching toes with difficulty due to tight hamstrings”).   

A VA Compensation and Pension (C&P) examination was conducted 9 May 2007 (6 months post-separation) and documented “daily” pain rated 4-5/10 “worsened with bending and heavy lifting.”  The VA examiner noted intermittent bilateral radiation without comment regarding sensory symptoms or subjective weakness.  The VA physical examination recorded a normal gait, normal spinal contour, no pain radiation with motion, “mild” paraspinal tenderness, and normal neurologic findings (no sensory deficits and 5/5 strength).  The VA measured ROM was flexion to 90 degrees (normal) and combined ROM of 240 degrees (normal) without pain on repetition.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5243 (intervertebral disc syndrome) was compliant with criteria of VASRD §4.71a for the findings and ROM evidence.  The VA’s 10% rating under 5239 (spondylolisthesis [not evidenced by imaging]) was based on the §4.71a criterion of spinal tenderness.  There is no ROM evidence supporting a rating higher than 10%, no evidence of gait or spinal contour abnormality in support of a 20% rating, and no documentation of incapacitating episodes which would provide for a higher rating under that formula.  The Board considered whether additional rating could be recommended under a peripheral nerve code for the LLE radiculopathy at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  There was no evidence of motor weakness, and no evidence of (or logical cause for) functional limitations due to the sensory component.  The requisite link to fitness is thus not established, and the Board cannot support a recommendation for additional disability rating on this basis.  It is also noted that the VA did not find justification for a ratable neuropathy in this case independently of the fitness question.  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 of the lumbar spine condition.

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 lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 20140102, 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

XXXXXXXXXXXX
XXXXXXXXXXXX
XXXXXXXXXXXX

Dear XXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-00338.

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,

XXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings