RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	      CASE:  PD-2014-01425
BRANCH OF SERVICE:  AIR FORCE                                                            SEPARATION DATE:  20090629

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Airspace Propulsion Technician, medically separated for “low back pain” with a disability rating of 20%. 

CI CONTENTION:  The CI’s conditions continue to worsen and negatively affect daily activities.  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 based upon a 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 - 20090325	VARD - 20100609	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	20%	Chronic Lumbosacral Strain	5237	20%	20110421	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to service treatment records (STRs) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s mid to lower back pain condition began in October 2006 after he slipped and twisted his back while carrying a case of oil.  A week later he felt a pop in his back.  X-rays of the thoracic and lumbar spine were normal and physical therapy (PT) was instituted along with nonsteroidal anti-inflammatory drugs (NSAIDs), muscle relaxers, narcotics, and prednisone.  Thoracic spine X-rays were normal in March 2007.  Pain management evaluation in April 2007 noted no pain radiation or sciatica.  Facet injections and a possible denervation were considered.  
On 7 January 2008 an MRI of the thoracic and lumbar spine showed a mild to moderate right paracentral disc protrusion of the T8-9 intervertebral disc causing mild flattening of the right aspect of the cord.  Mild hypertrophic degenerative changes of the facet joints at L3-4, L4-5, and L5-S1 were present.  There were no disc herniations at any level and all foramina (openings in the vertebral column where nerves pass through) were all widely patent.  Neurosurgical evaluation in February 2008 noted the CI’s pain was in the lower thoracic area and upper lumbar area without pain or numbness in the lower extremities and indicated the condition was nonsurgical.  Epidural steroid injections (ESIs) were given without improvement.  A pain management/physical medicine evaluation on 7 May 2008 found movements of extension, flexion, rotation and side bending were within normal limits as was the CI’s gait.  Excessive narcotic use was treated with a trial of a TENS (transcutaneous electrical nerve stimulation) unit, Celebrex (celecoxib, an NSAID) and Flexeril (cyclobenzaprine, a muscle relaxer).  A pain management note on 1 July 2008 indicated the CI was pleased with his progress and objectively he had a full ROM (range of motion) pain free at the dorsal and lumbar spine.  The plan was to continue the Celebrex and Flexeril as needed, to purchase a TENS unit, and to possibly upgrade to full duties without restrictions.  However, the CI’s profile expired on 2 July 2008 and because he had been on profile for more than a year and a half, a MEB was required.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the his military specialty.  The MEB forwarded “back pain” for PEB adjudication.

PT ROM measurements dated 8 September 2008 are in the chart below.  An MRI dated 19 December 2008 revealed an extraforaminal bulge at L3-L4, a mild annular disc bulge at L4-L5, and a right subarticular focal disc protrusion causing a mass effect on the right S1 nerve root.  Additionally, an annular tear of the disc at L5-S1 and a mild right foraminal narrowing were also present.  Follow-up ROM measurements dated 11 February 2009 are also in the chart below.  

At the VA Compensation and Pension (C&P) examination on 5 January 2009, performed 6 months before separation, the CI reported he still had quite a bit of problems with bending and lifting, but did not wear a back brace or use a walking cane.  ROM measurements are in the chart below.  Neurologic evaluation was unremarkable and his gait was normal.  At a remote VA examination, with limited to no probative value, on 23 November 2011, 29 months post-separation, the CI’s flexion was 25 degrees with painful motion and muscle spasm, an abnormal spinal contour, and an abnormal gait.

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 ~9 Mo. Pre-Sep
	VA C&P ~6 Mo. Pre-Sep
	
PT/SAFPC PEB ~4 Mo. Pre-Sep
	
Flexion (90 Normal)	35	60	25,18,18(20)	
Extension (30)	15	20	10,8,10(10)	
R Lat Flexion (30)	20	30	15,12,12(10)	
L Lat Flexion (30)	20	30	8,7,8(10)	
R Rotation (30)	25	30	18,16,16(20)	
L Rotation (30)	20	30	15,15,14(15)	
Combined (240)	135	20	85	
Comment	AO	Limited by pain and stiffness; no loss of motion with repetition		
§4.71a Rating	20%	20%	40%	

The Board directed attention to its rating recommendation based on the above evidence.  The Air Force Formal PEB assigned a 20% rating under the 5237 code (lumbosacral strain), citing low back pain.  The VA also assigned a 20% rating using the 5237 code (lumbosacral strain) based on the VA C&P examination 5 months before separation.  Board members took notice that the CI requested a review of the PEB’s proceedings, which was reported by SAF/MRBP on 25 March 2009 and noted the CI’s “thoracolumbar (TL) flexion was measured at 35 degrees and his combined range of motion (ROM) was 135 degrees.”  It continued:  “The member obtained an additional ROM measurement after the PEB disposition that showed only 20 degrees of TL flexion and a mere eight degrees of left lateral flexion.”  It concluded:  “The Board does not consider this measurement credible in the context of an attempt to obtain a higher disability rating and concludes that the 20 percent rating is appropriate (see also VASRD §4.7).”  

Physical Disability Board of Review members discussed the CI’s ROMs prior to separation including a full ROM during a pain management/physical medicine examination; noting 35 degrees of flexion while undergoing physical therapy measurements 9 months prior to separation; 60 degrees flexion at his VA examination; and 25/18/18 degrees while undergoing post-FPEB physical therapy measurements.  Of note the FPEB relied on measurements 9 months prior to separation and the flexion measurement was reiterated and likewise relied upon by the SAF/MRBP.  However, neither commented on the VA examination of flexion of 60 degrees nor did either address the MRI findings of 19 December 2008, which demonstrated disc bulges at L3-4 and L4-5 and the focal disc protrusion at L5-S1 causing a mild mass effect on the S1 nerve root and an annular tear of the disc at the L5-S1 level.  While the SAF/MRBP did not consider the 20 degrees of flexion credible, it did not take into account the MRI findings.  Board members did note that after the pain management/physical medicine examination physical therapy was discontinued as were the narcotics for pain relief although there was no evidence in the record of an injury, illness or surgery to the back to explain the disparate measurements.  Be it as it may, the PT measurements after the FPEB proceedings were more proximate to the time of separation than those that the FPEB relied upon; therefore, the measurements warrant credibility since they were seemingly performed accurately and there was no note or indication that the CI’s effort was impaired or lessened voluntarily.  While the Board members considered a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the MEB and VA examinations, Board members also noted that a 40% rating was justified for limitation of flexion (not greater than 30 degrees) reported by a physical therapy examination more proximate to separation.  However, a subsequent, albeit remote, VA examination likewise revealed ROM measurements warranting a 40% rating thereby demonstrating consistency over time.  

There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.  The Board also considered whether an additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  A radiographic study in December 2008 supported some level of radicular nerve irritation or involvement, but physical examinations (physical medicine, PT, MEB NARSUM, and VA C&P) proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the low back pain condition, coded 5237.  

BOARD FINDINGS:  In the matter of the low back pain condition, the Board unanimously recommends a disability rating of 40%, coded 5237 IAW VASRD §4.71a.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5237	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140321, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXXX

MEMORANDUM FOR THE DIRECTOR, AIR FORCE REVIEW BOARDS AGENCY

SUBJECT:  Physical Disability Board of Review Recommendation on XXXXXXXXXXXXXXXXXXXXX Case Number PD-2014-01425

	In accordance with Title 10 § 1554a and in compliance with DoDI 6040.44, the Physical Disability Board of Review (PDBR) adjudicated the disability rating accompanying the medical separation of the covered individual from the United States Air Force.  After carefully reviewing the application and medical separation case file, the PDBR recommended the separation be re-characterized to reflect permanent disability retirement with a combined disability rating of 40% rather than 20%.

I have reviewed the application and Record of Proceedings and I recommend you accept this proposed decision.

As a reminder, a copy of your decisional documents must be provided to the PDBR at the following address:

XXXXXXXXXXXXXXXXXXXXX

	Sincerely,

Attachments
1.  Record of Proceedings
2.  Case File