RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-01018
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20141202
Separation Date:  20081103

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Aerospace Maintenance Craftsman) medically separated for a back condition.  The back could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty or satisfy physical fitness standards.  He was issued a temporary L4 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “low back pain,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The Informal PEB (IPEB) adjudicated “low back pain (LBP) due to degenerative disc disease (DDD) status post (s/p) microdiscectomy and fusion L5-S1” as unfitting, rated 10%, with application of the VA Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB (FPEB), which affirmed the PEB findings and rating.  The CI was then medically separated.

CI CONTENTION:  The CI writes:  “My back condition was considered severe enough to warrant separating me from service but essentially I was provided a minimum disability rating.  I do not believe it fully took into account the symptoms of my condition nor did it consider the secondary conditions that were directly caused by my back condition.  The VA took all of this into consideration when they rated me.”

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 back condition is addressed below; 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.

RATING COMPARISON:

Service FPEB – Dated 20080723	VA - (1 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP due to DDD s/p Microdiskectomy and Fusion L5-S1	5241	10%	Multi-Level DDD …	5242	20%	20081208	
			Radiculopathy LLE….	8599-8520	20%	20081208	
Other x0	Other x12	20081208	
Combined:  10%	Combined:  90%	
Derived from VA Rating Decision (VARD) dated 20090106 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board notes the current VA ratings referenced by the CI for all of his service-connected conditions, but must emphasize that its recommendations are premised on severity at the time of separation.  The VA ratings which it considers in that regard are those rendered most proximate to separation.  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.

LBP due to DDD S/P Microdiscectomy and Fusion L5-S1 Condition.

The CI underwent the following surgeries:
1.	 L5-S1 anterior lumbar interbody fusion 11 May 2007
2.	 Redo L5-S1 microdiscectomy 12 June 2006
3.	 L5-S1 microdiscectomy October 2002
There were two range-of-motion 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)	MEB ~10 Mos. Pre-Sep	PT 5.5 Mos. Pre-Sep	VA C&P 36 days Post-Sep	
Flexion (90 Normal)	Slightly decreased	80 	45	
Combined (240)	-	-	140	
Comment	Pos. painful motion; antalgic gait; Normal strength & reflexes; Pos. tenderness to palpation (TTP)	Pos. painful motion; Normal gait	Pos. painful motion; Pos. decreased sensation left leg; Pos. straight leg raise bilaterally; Pos. DeLuca criteria	
§4.71a Rating	10%	10%	20%	

The CI sustained a low back injury from lifting a heavy object while working in 2002 and experienced LBP, weakness and pain in the left lower leg.  He had extensive physical therapy (PT), however, the symptoms persisted.  Along with PT, the CI also had epidural steroid injections which aggravated his symptoms.  In October 2002, the CI underwent an L5-S1 microdiscectomy surgery with good symptom resolution.  In February 2006, the CI had a reoccurrence of symptoms and underwent a redo L5-S1 microdiscectomy on 12 June 2006 which provided approximately 6 months of partial relief.  The CI was evaluated by a chiropractor because he had a sudden onset of LBP with forward head flexion or sitting down with radiation down his left leg.  The physical exam was normal without any motor or sensory deficits.  The lumbar spine magnetic resonance imaging (MRI) demonstrated post-surgical laminectomy changes at L5 with a large area of enhancing epidural fibrosis/scar above L5-S1 and a suspicious area of recurrent or residual disc fragment which could be exerting mass effect or entrapping of the left L5 nerve root at lateral recess level.  He was seen by neurosurgery for LBP that radiated across his across the buttocks, posterior thigh and calf with radiation into his groin.  The physical findings were a normal motor and sensory exam; however, there was mildly positive straight leg raise and cross straight leg raise with bilateral extension of 90%.  The examiner diagnosed LBP; and possible recurrent disc herniation/sequestered disc fragment versus an L4-5 disc herniation.  Two days later the primary care provider noted significant lumbar muscle spasm, tightness, left straight leg raising significantly restricted and decreased reflex of the left lower extremity.  The examiner prescribed a narcotic medication and a muscle relaxant for spasms.  The CI continued to follow with neurosurgery, primary care and a chiropractor for ongoing LBP and radicular pain.  A repeat lumbar spine MRI showed laminectomy changes, and evidence of a probably focal extruded disc herniation posteriorly and to the left at L4-5 with some caudal extension of disc material.  A flexion/extension lumbar spine X-ray showed a slight retrolisthesis (condition in which spinal vertebrae become displaced and move backwards) of L5 on S1 stable between flexion and extension.  The CI underwent an L5-S1 fusion on 11 May 2007.  An electromyelogram performed on 19 November 2007 was normal for both lower extremities with no evidence of radiculopathy or neuropathy.  A lumbar spine CT scan demonstrated a slight retrolisthesis of L5 on S1 with overall intact appearing fusion and an incompletely healed laminar defect on the left side.

The MEB narrative summary (NARSUM) exam approximately 10 months prior to separation documented some degree of achy LBP on a daily basis along with significant sensory symptoms in his left leg.  At the time of this exam, he had a temporary P2L4H3 profile for LBP and other medical conditions.  The examiner further noted that the treating neurologist and neurosurgeon agreed that the CI’s current level of symptoms were unlikely to improve significantly over time and there were no additional procedures recommended.  The MEB NARSUM physical exam findings are summarized in the chart above.  The commander’s statement noted that the CI’s medical disability restricted him from most of his MOS duties.  The neurosurgeon noted that the disc bulging at L4-5 was not severe enough to warrant any additional surgical intervention at that time.  The VA Compensation and Pension (C&P) exam 36 days after separation documented constant LBP, stiffness, weakness and constant numbness in both legs with the left leg worse than the right; he could only sit for a few hours, stand for one hour and walk approximately one mile per day slowly.  The VA C&P physical exam findings are summarized in the chart above.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the LBP due to DDD s/p microdiscectomy and fusion L5-S1 condition as 5241 (spinal fusion) and rated at 10%.  The VA coded the multi-level DDD condition as 5242 (degenerative arthritis of the spine) and rated at 20%.  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 Board heavily considered the CI’s written contentions after the IPEB and FPEB. The CI was asking for placement on the Temporary Disability Retired List in hopes that his condition would improve and that he would be able to complete 20 years of service.  However, as evidenced by the VA C&P exam a month after his separation, his condition worsened.  After deliberation, Board members agreed that the VA C&P exam was closer to separation; more aptly described the CI’s condition at the time of separation and therefore had the higher probative value.  With respect to a radiculopathy, 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 had no functional implications and there was no motor impairment documented.  Since no evidence of functional impairment due to a peripheral nerve condition exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  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 LBP due to DDD s/p microdiscectomy and fusion L5-S1 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 LBP due to DDD s/p microdiscectomy and fusion L5-S1 condition, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  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, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
LBP due to DDD S/P Microdiscectomy and Fusion L5-S1	5241	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140227, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

							

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-2014-01018.

	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