RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX		CASE:  PD-2014-00994
BRANCH OF SERVICE:  AIR FORCE		SEPARATION DATE:  20090522

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve, E7, Aircraft Armament Systems, medically separated for “chronic low back pain with degenerative disc disease and degenerative scoliosis” with a disability rating of 20%.

CI CONTENTION:  His back condition continues to worsen.  The applicant’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 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 condition 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 - 20090422	VARD - 20091106	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5242	20%	Degenerative Disc Disease	5242	NSC	STR	
COMBINED RATING:  20%	COMBINED RATING FOR ALL VA CONDITIONS:  NSC	

ANALYSIS SUMMARY:

Low Back.  The service treatment record (STR) documented a signed affidavit regarding a back injury during deployment in May 1996.  The narrative summary (NARSUM) described four entries for acute lumbar strain attributed to “loading bombs” that had occurred in 1990, 1991, 2006 and 2007.  Radiographic imaging in June 2007 and February 2008 (23 and 15 months pre-separation) documented degenerative scoliosis with multilevel degenerative disc disease (DDD) from L1-S1 levels.  A NARSUM, dated 25 October 2007 (19 months pre-separation), documented the CI’s report of recurring back problems, primarily on the left side radiating into the bilateral hips and legs.  At an orthopedic visit in October 2008 (7 months pre-separation), the examiner documented “decreased” range-of-motion (ROM) in the lumbar spine to “50%” with stiffness.  At a primary care visit in December 2008 (5 months pre-separation), the CI reported inability to sit or stand for prolonged periods of time, bend and lift, and perform regular duties.  The examiner documented tenderness over the L1-S1 spine and bilateral paraspinal muscles, and positive nerve tension testing bilaterally (straight leg raise) with spasms.  A chiropractic visit in January 2009 (4 months pre-separation), the examiner documented tenderness of the lumbar spinous processes.  Flexion was to 90 degrees (normal), extension was to 30 degrees (normal), and bilateral rotation was to 30 degrees (normal).  Left and right lateral flexion was to 20 degrees (normal 30) (combined 220 degrees; normal 240).  There was no STR documentation of physician prescribed bed rest for incapacitating episodes.

The MEB NARSUM exam was performed on 14 January 2009 (4 months pre-separation).  The CI reported inability to stand for prolonged periods of time, bend or lift, and perform regular duties.  The examiner documented moderate discomfort while sitting and slow movement from chair to exam table.  Forward flexion was to 60 degrees (normal 90) with moderate leftward curvature and no muscle spasm was documented.  Sensory and strength exam was normal.  At a physical therapy visit for ROM measurements in January 2009, the examiner documented independent ambulation slowed by use of a cane and an “antalgic transition” from sit to stand.  Forward flexion was to 30 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees and normal rotation bilaterally.

The VA did not conduct a Compensation and Pension exam for the CI’s spine condition.  Radiographic imaging in June 2009 (a month post-separation) documented stable DDD with bilateral foraminal stenosis (narrowing of the nerve canal exits).  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB adjudicated the “chronic low back pain with DDD and degenerative scoliosis” as unfitting, rating 10% and coded 5242 (degenerative arthritis of the spine).  The VA did not initially grant service connection.  After an appeal to the VA, the rating was increased to 20% effective from the date of separation (per VA rating decision 29 April 2015) and based on measurements from the MEB NARSUM dated 14 January 2009.

The Board considered the evidence for a higher than 20% rating.  The disparity between the chiropractic, NARSUM and physical therapy exams were carefully reviewed along with the results of several examinations in the year pre-separation to accurately assess the overall disability picture (§4.2) at the time of separation.  The orthopedic visit in October 2008 (7 months pre-separation) would support a 20% rating as the documented “50%” decrease in flexion would have approximated 45 degrees.  This would be more consistent with the MEB NARSUM exam, which was 4 months pre-separation, and supported a 20% rating.  The chiropractic exam did not perform repetitive measurements, but supported a 10% rating in that forward flexion was normal and the combined ROM of the thoracolumbar spine was 220 degrees (normal 240).  The ROM values reported by the physical therapy (PT) examiner (4 months pre-separation) are significantly worse than those reported by the MEB and chiropractic exams during the same time period.  There is no record of recurrent injury or other development in explanation of the more marked impairment reflected by the previous measurements.  While ROM limitations may have progressed over time, there is no evidence in the record from which to conclude that the severity at separation approached that portrayed by the PT measurements.  These exams in combination provided a preponderance of evidence to favor the 20% rating over the 40% rating.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 20% for the lumbosacral degenerative disc condition was appropriately recommended in this case.

The Board also considered whether additional service rating could be recommended under a peripheral nerve code for the CI’s complaints of pain radiating into his bilateral hips and legs (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 service 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 motor weakness or fixed sensory deficit in this case.  There is thus no evidence of a separately ratable functional impairment (with fitness implications) from the residual radicular symptoms; and, the Board cannot support a recommendation for an additional service disability rating on this basis.

BOARD FINDINGS:  In the matter of the lumbosacral degenerative disc 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.  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 20140222, 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

Dear XXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-00994.

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