RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01781
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20150212
SEPARATION DATE:  20051206

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Aerospace Propulsion Journeyman) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Air Force Specialty or satisfy physical fitness standards.  She was issued a temporary L4 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “degenerative disc disease” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “back pain, degenerative disc disease, status post L5-S1 fusion” as unfitting, rated 10%, citing criteria of the Department of Defense Instruction (DoDI) 1332.39 and Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “L5-S1 Lumbar fusion”

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 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 IPEB – Dated 20051024	VA* - (4 Days Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain, Degenerative Disc Disease, Status Post L5-S1 Fusion	5241	10%	Healed Thoracolumbar Fusion of L5-S1 w/Degenerative Disc Disease and Residual Right Lower Quadrant/Lower Abdomen Scar	5241	40%	20051202	
Other x 0 (Not in Scope)	Other x 5		
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20060214 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Back Pain, Degenerative Disc Disease, Status Post L5-S1 Fusion Condition.  The narrative summary (NARSUM) and treatment record indicated onset of low back pain (LBP) in 1998 following heavy lifting.  Magnetic resonance imaging documented L5-S1 central disk herniation with canal stenosis.  Symptoms included radiation of pain and numbness down the right leg.  Conservative treatment including physical therapy and epidural steroid injections did not resolve her symptoms.  The CI underwent anterior (through the abdomen) fusion of L5-S1 in September 2004 and was “… placed on convalescent leave for several months, until January 2005.”  She had initial relief of LBP and radiating symptoms but the LBP returned when she went back to work in January 2005 with the pain level described as 7/10 with a decrease to 4/10 after taking Tylenol.  She had poor sleep, awakening due to pain and had pain with prolonged sitting.  The NARSUM exam performed approximately 3 months prior to separation on 23 September 2005 stated “Lumbar region with mild paraspinal muscle spasms, but normal range-of-motion (ROM), including flexion, extension, side-bending and rotation bilaterally.”  There was no mention of gait or neurovascular testing.  Records did indicate a number of periods of “quarters” and a consultant’s note of “spent one month at bed rest.”

At the VA Compensation and Pension exam performed 4 days prior to separation, the CI reported LBP since 2004 with pain 10/10 radiating down the right leg.  She reported incapacitating episodes of 120 days in the last year with “the physician who recommended bed rest was Military doctor.”  Imaging documented minimal thoracic scoliosis “not clinically significant” and lumbar post-surgical disc space fusion without evidence of complications.  Exam documented the CI’s “posture is abnormal it is unable to stand fully erect.”  Gait was normal.  The motor, sensory and reflex exams of the lower extremities were normal.  Straight leg testing (for radicular signs) was positive on both sides.  There was no back tenderness or spasm.  ROM testing indicated pain with motion and forward flexion of “12⁰” (10 degrees IAW VASRD spine formula rounding; normal 90 degrees) and a combined ROM of 55 degrees (normal 240 degrees).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10% coded 5241 (spinal fusion) and the VA rated the condition at 40% using the same code based on a different exam.  The Board considered that the CI’s history of having had incapacitating episodes was almost certainly based on the extended period of convalescent leave.  Although the Board adjudged that convalescent leave did not equate to a physician prescription for bed rest, multiple “quarters” entries and a physician note of having “a month of bed rest” potentially supported a 40% rating under disability code 5243 (intervertebral disc syndrome) IAW the VASRD formula for rating intervertebral disc syndrome for “incapacitating episodes having a total duration of at least 4 weeks” (even though some of the episodes were outside the 12-month rating timeframe).  There were no fixed peripheral nerve deficits and pain (whether or not it radiates) is considered under the criteria of the general spine rating formula.  The Board agreed that there was no unfitting radiculopathy (peripheral nerve) condition.

The Board then assessed the probative value of the two very disparate exams in evidence to evaluate which had the highest probative value for rating at the time of separation.  The NARSUM exam was further away from the date of separation, did not have goniometric ROM testing (no measured numbers IAW VASRD §4.2), did not address receptive motion or DeLuca criteria, and did not mention posture, gait, or lower extremity exam for strength, reflexes, or sensory deficits.  The VA exam was closest to the date of separation, used goniometric ROM testing, described DeLuca criteria and was more detailed and complete.

The Board adjudged that the VA exam had the highest probative value for rating and that forward flexion not greater than 30 degrees warranted a 40% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board recommends a disability rating of 40% for the 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 low back condition, the Board unanimously recommends a disability rating of 40%, 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Back Pain, Degenerative Disc Disease, Status Post L5-S1 Fusion	5241	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140428, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD 20762

Dear XXXXXXXXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2014-01781.

	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 your separation be re-characterized to reflect disability retirement, rather than 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 determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

	As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

Sincerely,

XXXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings

cc:
SAF/MRBR
DFAS-IN