RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-00463
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20141105
Separation Date:  20061017

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty A1C/E-3 (3P031/Security Forces) medically separated for chronic low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty (AFS) or satisfy physical fitness standards.  He was issued a temporary U4 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “chronic low back pain with magnetic resonance imaging (MRI) evidence of disc protrusion” and “left knee pain” to the Physical Evaluation Board (PEB) IAW AFI 48-123 and AFI 41-115.  No other conditions were submitted by the MEB.  The PEB adjudicated “chronic LBP with disc bulge at L4-5” as unfitting, rated at 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The left knee condition was not considered by the PEB.  The CI made no appeals and was medically separated.

CI CONTENTION:  “When I was initially given my rating I was young and very uneducated in terms of what options were available to me and the military personnel who was assisting with my Board determination advised me that it was best to take the determination that I was given even though I disagreed because the board could come back with a decision of denial for my whole claim and give me a 0% decision.”

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 low back condition is addressed below.  The Board will also consider the CI’s implied contention for his left knee condition, referred by the MEB to the PEB, but not addressed by the PEB.  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 (BCMR).  The Board acknowledges the CI’s assertions that he made his disability acceptance against his better judgment, based on advice he received from military personnel working with the Disability Evaluation System (DES).  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system.

RATING COMPARISON:

Service IPEB – Dated 20060824	VA - (3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain (LBP)	5243	20%	Lumbar Disc Disease	5243	20%	20070118	
			Radiculopathy, Left Lower Extremity Associated with Lumbar Disc Disease	8520	10%	20070118	
Other x0	Other x5	20070118	
Combined:  20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20070323 (most proximate to date of separation)

ANALYSIS SUMMARY:  The DES is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered 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.  However the Department of Veterans Affairs, 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.

Chronic LBP Condition.  There were two range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation as summarized in the chart below.

Thoracolumbar ROM (Degrees)	PT ~3.5 Mos. Pre-Sep	MEB ~3.5 Mos. Pre-Sep	C&P ~3 Mos. Post-Sep	
Flexion (90 Normal)	20	ROM’s by civilian PT for MEB on 20060627; Lumbar spine ROMs only, not Thoracolumbar	45	
Combined (240)			180	
Comment	Pos. painful motion; Pos. straight leg raise (SLR) left	Antalgic gait; Pos. tenderness to palpation (TTP); Pos. SLR; Normal strength/reflexes/sensation	Pos. painful motion & TTP; Pos. SLR left; Decreased sensation; Normal reflexes/strength	
§4.71a Rating	40%	Unable to determine	20% (VA 20%)	

The CI had developed an insidious onset of LBP during basic training in September 2004.  The CI was seen in the emergency room for complaints of LBP and physical exam findings of increased pain with walking and tenderness to palpation (TTP) in the L4-S1 area.  He followed with family practice for the LBP and was put on a temporary profile for LBP with a 2-day duration.  In 2005, the CI continued to report LBP and was referred to physical therapy for evaluation and treatment.  The pain management specialist noted some intermittent tingling in the posterior thigh, calf and foot along the plantar aspect as well as a sense of weakness.  He failed an intramuscular injection for pain and treatment with a non-steroidal anti-inflammatory drug failed.  He rated his pain at 8/10 and stated that the pain was worsened with walking, bending or standing and was mildly relieved with a hot bath or lying down.  There were physical exam findings of TTP throughout the lumbar paravertebral area, limited TTP to upper aspect of the sacroiliac joints and bilateral SLR’s caused a thigh pull sensation and additionally on the left there was discomfort on SLR which extended into the calf.  The examiner further noted lumbar spinal X-ray images were negative except for a degree of straightening of the lumbar lordosis.  He was given an epidural steroid injection (ESI) at this visit.  He was seen in follow-up by pain management on 19 July 2005 and reported that he had some modest pain reduction following the ESI, but had no subsequent benefit.  There were physical exam findings of significant restriction with lumbar flexion, extension and lateral flexion due to magnification of LBP and Yeoman’s testing and TTP over the sacroiliac area caused diffuse lumbar guarding with diffuse pain.  The examiner ordered an MRI to rule out disc disease.  The MRI of the lumbar spine demonstrated a broad left L4-5 paracentral and foraminal disc protrusion with compression of the L5 nerve root.  A repeat MRI study on 15 September 2005 showed no change in results.  Throughout 2006, the CI continued to follow with family medicine and PT for chronic LBP with fair results.  The PT evaluation on 27 June 2006 was completed to provide ROM measurements for the MEB exam.  The PT documented bilateral diffuse LBP and bilateral lower extremity pain that radiated down the posterior thigh, calf into the foot and toes.  The pain was rated at 9 out of 10.  The PT physical exam findings are summarized in the chart above.  

The MEB narrative summary (NARSUM) exam (approximately 4 months prior to separation) documented that he had LBP that was constant and was exacerbated by physical activity and prolonged standing with occasional pain that would shoot into his buttocks and posterior thigh.  The MEB NARSUM physical exam findings are summarized in the chart above.  

The commander’s statement documented that the CI was unable to perform his AFS duties because he could not wear a web belt, flak vest, helmet or any weapon all of which are minimum requirements.  The CI was given a temporary U4 Profile with specific restrictions listed on the profile.  

The VA Compensation and Pension (C&P) exam (approximately 3 months after separation) documented chronic pain and stiffness with radiation and numbness in his left foot.  The VA C&P physical exam findings are summarized in the chart above.

Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no functional implications.  There was no motor impairment present.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the chronic LBP condition as 5243 (intervertebral disc syndrome) and rated at 20%.  The VA the condition as coded 5243 (lumbar disc disease) and rated at 10%.  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.”  The MEB exam contained ROM measurements obtained by a civilian PT for the “Lumbar Spine,” potentially not the thoracolumbar spine ROMs required by the VASRD.  The Board adjudged that the VA C&P examination was closer to separation, contained a complete set of thoracolumbar ROM’s and therefore had the higher probative value.  The forward flexion of the spine was 45 degrees which aligns with the 20% rating criteria for “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees flexion.”  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 condition.

Contended PEB Conditions.  The contended condition adjudicated as not unfitting by the PEB was left knee.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  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.  The CI was initially given a temporary L 2 Prolife which started on 25 March 2005 and ended on 25 April 2005, a second temporary L3 Profile was given on 15 June 2005 and then a third L3 profile was again given on 1 August 2005.  The MEB NARSUM examiner documented chronic left knee pain that was medically managed.  The left knee had full ROM with a positive 
Mc Murray’s sign for meniscal injury; however there was no instability noted.  An MRI performed in January 2006 showed a complex tear involving the posterior horn of the lateral meniscus and a small free edge radial tear.  The orthopedic note of 4 April 2006 documented that the left knee was stable and to continue conservative treatment secondary to lack of significant mechanical symptoms.  There was no surgical option offered.  There were no new profiles for the left knee given.  The commander’s statement focused solely on the chronic LBP, there was no mention of a left knee condition.  The left knee condition was not judged to fail retention standards.  The left knee 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 left knee contended 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 condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the left knee contended condition, the Board unanimously recommends no change from the PEB determinations 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 20140108, 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-2014-00463.

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