RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00959
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20140827
SEPARATION DATE:  20080602

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SrA/E-4 (2F051/Controller) medically separated for a chronic back pain condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty.  He was issued a permanent L4 profile and referred for a Medical Evaluation Board (MEB).  The chronic back pain condition 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 low back pain (LBP), with mild degenerative changes of L3-4” as unfitting, rated 10%, citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “It has been 6 years since I was first discharged with a rating of 20% in 2008.  Since then my back has been getting worse.  I can no longer sleep through the night without waking from the pain.  I have had to sell my four-wheelers and cut back on things I use to do with my family.  My quality of life has been getting worse as the years pass.  My medication allows me to maintain active.  My migraines have gotten worse as well.  I have missed work due to a migraine or my back.  The ringing in my ears last for hours and there is nothing I can do when it happens.” 

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 LBP condition is addressed below. The migraine headache and tinnitus conditions are not 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.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues 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 20080417	VA - (9 days Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	Degenerative Changes L3-4	5242	10%	20080611	
Other x 0 (Not in Scope)	Other x 6 (Not in Scope)	20080611	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20080611(most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Low Back Pain Condition.  Review of the service treatment record showed that LBP began in approximately 2005 and was not associated with a history of trauma or a surgical indication.  Despite pain medications, physical therapy (PT), epidural steroid injections and radiofrequency ablation, the CI continued to experience LBP that interfered with performance of his duties.  X-rays showed minor degenerative changes of the S1-2 areas, while magnetic resonance imaging showed a “very straight” lumbar vertebral alignment and mild degenerative changes of L3-4 without disc herniation.

The narrative summary reported that the CI was only able to control his back pain with medication.  Examination showed painful motion but no tenderness.  At a PT evaluation on 11 April 2008 (2 months prior to separation), the CI reported engaging in leisure activities of driving and camping.  Examination noted poor posture with slouching, and “guarded movement; standing with flat L-spine or sway back.”

At the VA Compensation and Pension exam approximately a week after separation, the CI reported daily lower back pain with was produced by physical activity or stress.  He took a narcotic pain medication as often as twice per day.  He denied a history of incapacitation.  Examination showed a normal gait and posture.  There was no tenderness or muscle spasm.  Repetitive motion caused no additional limitation.  Lumbar spine X-rays were normal.

The goniometric range-of-motion evaluations 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)	PT/MEB ~ 2 Mos. Pre-Sep	VA C&P ~ 1 wk. Post-Sep	
Flexion (90 Normal)	75 (81, 73, 74)	70	
Combined (240)	N/A	220	
Comment	--	+Painful motion	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5243 code (intervertebral disc syndrome), while the VA also assigned a 10% rating under the 5242 code (degenerative arthritis of the spine).  The limitation of flexion in evidence warranted a 10% rating, but no higher.  Although the PT examiner noted guarding, Board members concluded that the posture and lumbar spine description was not consistent with the “guarding severe enough to result in abnormal spinal contour” stipulation of the 20% rating.  Likewise, there was no evidence of muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour and therefore the next higher 20% rating was not justified.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet a minimal rating under that formula.  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 low back pain 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 chronic LBP 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 20140224, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

SAF/MRB

Dear XXXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. §  1554a), PDBR Case Number PD-2014-00959.

	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,

Attachment:
Record of Proceedings