RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXX	CASE:  PD-2014-01148
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20150226
SEPARATION DATE:  20091027

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Security Forces Journeyman) medically separated for low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic low back pain with degenerative disk disease” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The MEB also identified and forwarded “obstructive sleep apnea” for PEB adjudication.  The Informal PEB adjudicated the LBP as unfitting, rated 20%, citing application of the Department of Defense guidance for applying the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining sleep apnea condition was determined to be Category II (can be unfitting, but not currently compensable or ratable).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI contended that his acute chronic disorder was diagnosed as PTSD and that he is unable to work.  He also contended his back, joints and Fibromyalgia conditions continue to hinder him.  The complete submission is at Exhibit A.

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 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/Naval 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 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:

IPEB – Dated 20090825	VA* - ~1 Month Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP with DDD and Disc Bulge Lumbar Spine	5242	20%	DDD From L3 to S1	5299-5237	10%	20091209	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 11 	
RATING:  20%	RATING:  80%	
*Derived from VA Rating Decision (VARD) dated 20100329 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Pain with Degenerative Disc Disease. Review of the record shows that the CI presented on 29 August 2007 with a complaint of LBP for months, dating to the last deployment.  He was referred to physical therapy, issued duty restrictions, and a magnetic resonance imaging was ordered.  It revealed multi-level degenerative disc disease (DDD) with nerve root impingement at L2 and L3.  X-rays on 25 February 2008 were unremarkable.  His pain persisted and he was referred to chiropractic therapy which also was unsuccessful.  The CI then underwent a series of three steroid injections which initially provided good relief of pain, but the final injection was not beneficial.  At a neurosurgical evaluation on 8 September 2008, the CI reported radicular symptoms.  He had an absent right ankle jerk, but the examination was otherwise unremarkable.  No further intervention was warranted.  At the VA Compensation and Pension (C&P) examination performed on 29 October 2008, approximately 12 months prior to separation, the CI reported a 2-year history of LBP aggravated by activity.  He denied incapacitation.  On examination his gait and posture were normal.  The range-of-motion (ROM) is below.  It was limited by pain, but there was no further limitation with repetition.  Spinal contour was normal and signs of intervertebral disc syndrome were absent.  The neurological examination was normal.  Repeat X-rays again showed multilevel DDD from L3 to S1.  The narrative summary was dated 4 May 2009.  The previous leg pain (radicular pain) was resolved, but his back pain persisted at both rest and with activity.  On examination, testing for signs of non-organic pain was negative.  The ROM was reduced and painful as documented below.  No comment was made on the gait and a neurological examination was not recorded.  The second VA C&P examination was performed on 9 December 2009, approximately a month after separation.  The CI reported constant back pain with flares, but denied incapacitation.  The gait and neurological examination were normal.  Provocative testing for nerve root irritation was negative.  The ROM is charted below.  The goniometric ROM 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 ~13 Mo. Pre-Sep	VA C&P ~12 Mo. Pre-Sep	MEB ~6 Mo. Pre-Sep	VA C&P ~1 Mo. Post-Sep	
Flexion (90 Normal)	60 (45, 55, 60)	50	30	75	
Combined (240)	165	150	145	220	
Comment	Limited by pain		Attached on the side of the ROM table from 20080910	No additional limitation with pain	
§4.71a Rating	20%	20%	40%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 20% using the code 5242, degenerative arthritis of the spine.  The VA rated the back at 10% using the code 5299-5237, analogous to lumbosacral strain, and referencing the examination on 9 December 2009.  The Board noted that this was the most proximate examination to separation and supported a 10% evaluation.  It is also more consistent with the initial C&P and a physical therapy evaluation a month prior to that.  The MEB values date 4 May 2009 are not consistent with the other three sets of measurements and also are not consistent with the normal gait consistently in evidence.  It is not clear from the record how these measurements were obtained.  The 9 December 2009 examination is therefore assigned the highest probative value.  However, the Board does not recommend a rating lower than that assigned by the PEB.  The Board also notes that there is no evidence that an unfitting radiculopathy was present at separation.  After due deliberation 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 back 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 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 20140307, 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

XXXXXXXXXXXX
XXXXXXXXXXXX
XXXXXXXXXXXX

Dear XXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-01148.

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,

XXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings