RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00501
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20141202
SEPARATION DATE:  20060213

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E-5 (2A676/Aircraft Electrical and Environmental Systems Craftsman) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty.  He was issued a temporary L4 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic back pain, status post L4-5 fusion” condition as unfitting, rated at 20%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Since date of discharge (20060213) I have incurred three (3) more spine fusions in the lumbar region.  This has not improved my quality of life as I am typing this I'm in great pain and discomfort.  I have also had a suicide attempt because of my pain and not being able to be productive as I was prior to injury. (continued)  I am going in for steroidal injections 20140115 this is not a procedure that would be done on a patient that has recovered.  My feet have changing pains, burning sensations and tingling due to nerve damage and feeling in 35% of each the left and right foot is gone (outside two toes leading back to the heel which is also numb).  My calves, thighs and waist area have numbness and tingling as well as my stomach and lumbar scar areas.  I use a set of grabbers to pick things up off the floor as bending over only causes more pain.  I need help with simple things like putting on socks as shoes as well as walking, which I use a cane for.  I am unable to sit for more than thirty minutes nor walk for more than thirty minutes.  I end up spending a large portion of my day napping or laying in bed to ease the pain some.  This is not the person that I gave the military and I wish to be correctly compensated.  Medical retirement would really ease the financial burdens my wife and I share due to not being able to keep and maintain gainful employment.  Thank you for your consideration.”

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 lumbar condition, and associated and contended scar and bilateral feet, heel and calf conditions, are within the DoDI 6040.44 defined purview of the Board.  The contended mental health condition was not identified by the MEB or PEB; and, thus is not within the Board’s purview.  Any condition 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.  
The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continue to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.
RATING COMPARISON:

Service  IPEB – Dated 20051228	VA* - (2.8 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, Status Post L4-5 Fusion	5241	20%	Residuals of Fusion L4-5	5237	30%*	20060509	
			Radiculopathy, Left Lower Extremity …	8520	10%	20060505	
Other x 0 (Not in Scope)	Other x 4	
Rating:  20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20060807 (most proximate to date of separation)
Corrected to 40% in VARD dated 22 July 2009

ANALYSIS SUMMARY:

Chronic Back Pain.  The narrative summary (NARSUM), supported by the service treatment record, indicates a history of low back pain (LBP) starting in December 2003, when the CI had the sudden onset of severe pain after moving oxygen containers at work.  He was seen in the emergency room and was referred to physical therapy.  Imaging (MRI) in March 2005 (11 months prior to separation) showed disc herniation at L4-5 with mild nerve root impingement, and he had surgery (L4-5 fusion of the spine) 2 months later.  He reported slowly increasing pain after that, and follow-up imaging 3 months prior to separation showed incomplete healing of the fusion.  He missed 30 days of work in the previous year due to convalescence from his surgery, but no other days of work due to his back.

Six months prior to separation, 3 months after surgery, physical therapist reported limited forward flexion to 30 degrees (normal, 90 degrees).  A neurosurgeon reported that the CI had no limb weakness, tingling, burning sensation or numbness.  In the NARSUM (performed 3 months prior to separation), the CI reported some decreased sensation to his left lateral thigh.  On examination, there was mild tenderness to palpation over the midline of the lumbar spine at his operative level, no neurological focal deficits, normal reflexes, normal strength and forward flexion to 45 degrees (normal 90 degrees).

Three months prior to separation, the neurosurgeon noted no lower back pain radiating to the legs and no limb weakness, tingling, burning sensation, numbness or hyperesthesia (abnormal acuteness of sensitivity to touch, pain, or other sensory stimuli).  On examination, there was tenderness of the paravertebral muscles of the lower spine with normal sensation, strength, and reflexes of the lower extremities.  X-ray images of the spine had shown incomplete fusion after surgery (lucency at both L4 and L5 endplates), but the provider was not inclined to declare a failed fusion until 12 to 18 months after surgery and planned to see the CI in follow-up in 6 months.

During the VA Compensation and Pension exam (performed 3 months after separation), the CI reported a second fusion (a month after separation) secondary to persistent severe LBP with recurrence of leg symptoms.  Post-operatively he still experienced recurrent LBP.  He used a back brace, which helped his back and a cane when he anticipated a lot of walking.  On examination, there was mildly decreased sensation, light touch and vibration sense in the left lower leg compared to the right.  Strength and deep reflexes were normal.  The CI had a non-antalgic (normal) gait, a non-tender and well-healed surgical scar, forward flexion to 30 degrees (normal 90 degrees).  A remote VARD (performed 4 years after separation), reported that the CI used a cane for ambulation assistance and had constant pain, normal gait and posture and had 75 degrees forward flexion (normal 90 degrees), and combined range-of-motion (ROM) 175 degrees (normal 240 degrees); subsequently, the CI had a third fusion surgery on 26 April 2012, almost 7 years after separation.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition at 20% using code 5241 (spinal fusion), based on the NARSUM ROMs.  The VA rated the condition at 40% under code 5237 (lumbosacral strain) using a post-separation exam which was after a second back surgery that was performed within a month of separation.  There was insufficient evidence of physician prescribed bed rest for any rating above 20% under the intervertebral disc formula, and the rating in this case relies predominately on the ROM measurements.  The PT and NARSUM ROMs were incomplete and performed 3 months and 6 months after his spinal fusion surgery which had documented incomplete healing.  The CI underwent a second surgery the month after separation which was prior to the VA exam.  Later remote ROMs and additional surgeries were considered post-separation worsening and the Board focused consideration on the three exams proximate to separation as summarized above.

The PEB rated the low back condition based on ROM measurements in the NARSUM which were incomplete and indicated improvement from the PT ROMs.  It is not clear if a goniometer was used in these measurements and DeLuca criteria (repetitive motion) were omitted.  The VA exam was complete, however, the examiner stated, “Please note that the range of motion is due to the recent fusion procedure and the veteran is still in the early recovery phase.”

The Board considered that all exams had weaknesses for rating and that the overall disability picture was of 40% prior to the NARSUM with a 20% evaluation at the NARSUM.  However, the timeframe from the NARSUM (3 months prior to separation) to surgery within a month of separation indicated post-NARSUM worsening which was very likely pre-separation.  Although the VA exam was close after the second back surgery, the remainder of the VA record confirmed that level of back disability continued (or increased).  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board consensus was for a disability rating of 40% for the low back condition.

Contended Back-Related Conditions.  The Board reviewed the CI’s feet, calf, thigh scar and waist symptoms, presumably representing radicular (nerve) symptoms related to his low back condition (herniated disc and lumbar fusion) discussed above.  Symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected is considered under the general spine rating above IAW VASRD §4.71a.  No peripheral nerve condition (leg symptoms) was profiled or mentioned in the commander’s statement; however, it may have been masked by the restrictions from the back condition.  The neurosurgical visit 3 months prior to separation and the NARSUM documented symptoms which were absent or were mild (“Some decreased sensation to his left lateral thigh”) and produced minimal findings on exam (no focal neurological deficits, with normal reflexes and strength).  The VA exam 3 months after separation documented mildly decreased sensation on the lower left leg, but normal reflexes and strength.  Any limitation from the scar on the back was considered in the back rating above, and there were no scar-related duty limitations.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend an unfit determination for the CI’s lower extremity contended conditions or the scar and so no additional disability ratings are 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 low back condition, the Board majority recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a.  In addition, the Board unanimously did not find the CI’s lower extremity symptoms or scar to be additional unfitting conditions.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Back Pain	5241	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140113, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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

Dear XXXXXXXXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2014-00501.

	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 your separation be re-characterized to reflect disability retirement, rather than 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 determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

	As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.  

							Sincerely,

XXXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings

cc:
SAF/MRBR