RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00550
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20080623

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Utilities Systems Craftsman, medically separated for “chronic low back pain due to degenerative disc disease status post discectomy and fusion L5-S1” with a disability rating of 10%.

CI CONTENTION:  The CI requests the Board consider all conditions.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20080319	VARD - 20081209	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain due to Degenerative Disc Disease Status Post Discectomy and Fusion
L5-S1	5241	10%	Low Back Pain Status Post Herniated Nucleus Pulposus
Surgery L5-S1	5299-5243	20%	20080623	
Obstructive Sleep Apnea controlled with CPAP	6487	Category II	Obstructive Sleep Apnea	6847	50%	20080909	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain due to Degenerative Disc Disease Status Post Discectomy and Fusion L5-S1.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent posterior lumbar interbody fusion/fixation surgery at the L5-S1 level in February 2006.  A postoperative deep venous thrombosis was treated with anticoagulation therapy including Lovenox (enoxaparin) and Coumadin (warfarin).  Following surgery, further treatment by pain management with fentanyl (an opioid/narcotic pain medication) patches, Lyrica (pregabalin for nerve pain), and a combination of hydrocodone and acetaminophen (a narcotic and pain reliever) did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic low back pain” for PEB adjudication.

The range of motion (ROM) examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	MEB ~7 Mos. Pre-Sep
	VA- Day of  Sep
	
Flexion (90 Normal)	75 (75, 74, 75)*	50	
Extension (30)	10 (14, 11, 12)*	15	
R Lat Flex (30)	30( 34, 34, 35)*	15	
L Lat Flex (30)	30 (30, 31, 32)*	15	
R Rotation (30)	15 (15, 16, 17)**	15	
L Rotation (30)	15 (17, 18, 17)**	15	
Combined (240)	175	125	
Comments	*Bubble inclinometer used; **goniometer used	Pain at the end of the ROM	
§4.71a Rating	10%	20%	

The MEB NARSUM examination on 20 December 2007 (6 months prior to separation) noted complaints of no overall improvement in low back pain since the February 2007 surgery.  Physical examination showed 5/5 motor strength, 5/5 sensory, a normal gait and normal ROM.  At the 23 June 2008 VA Compensation and Pension (C&P) evaluation, performed on the day of separation, the CI reported pain that ranged from 7/10 (10 being the worst pain) up to 10/10, increased by turning, bending and twisting movements.  Physical examination revealed normal posture, a non-antalgic gait, and pain at end of the ROM. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10% coded 5241 (spinal fusion), citing the back pain interfered with the CI’s ability perform duties in-garrison and prevented world-wide deployment.  The VA rated the low back condition 20% analogously coded 5243 (intervertebral disc syndrome), based on the VA C&P examination on the day of separation, based on limited forward flexion.  The Board noted that the VA examination flexion measurement was 50 degrees at the time of separation.  Therefore, the probative value of the VA examination is higher than the MEB examination, which was 7 months prior to separation.  While the forward flexion measurement decreased from 75 degrees to 50 degrees over the 7 months, it is neither surprising nor unheard of since post-operative scarring does occur, which can impede the ROM.  Thus, a 20% rating is reasonable.  However, in the absence of ankylosis, forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or episodes of incapacitation, a higher rating is unobtainable.  

The Board then considered whether an additional rating could be recommended under a peripheral nerve code.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed 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,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.  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 low back condition.

Contended PEB Condition. Obstructive Sleep Apnea (OSA).  The Board’s main charge is to assess the fairness of the PEB’s determination that OSA, an Air Force Category II condition (conditions that can be unfitting but are not currently compensable or ratable) was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, 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 and was not judged to fail retention standards.  The CI slept 3 to 4 hours a night in 1998 and CPAP [continuous positive airway pressure] was prescribed after a sleep study in 1999.  He used it for 2 years and stopped it.  In 2007 another sleep study was performed and CPAP was started on a daily basis with good results; and the CI slept for 6 hours at night without daytime naps.  There was no performance-based evidence from the record that the OSA condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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 OSA contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the contended OSA 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.  

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

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5241	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140123, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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

Dear XXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-00550.

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,

Attachments:

1.  Directive 
2.  Record of Proceedings 

cc:
SAF/MRBR