RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXX						            CASE:  PD-2014-01900
BRANCH OF SERVICE:   AIR FORCE  	SEPARATION DATE:  20050425  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve O-3 (Communications and Information) medically separated for “chronic low back pain, status post-surgery X 3,” rated at 10%.  

CI CONTENTION:  “Military did not consider left lower extremity [LLE] radiculopathy.”  The applicant’s 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 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 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 20050217	VA* - (2 Wk. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain (Surgical Residuals)	5243	10%	Surgical Residuals, Lumbar Disk	5237-5243	10%	20050511	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 1	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20060413 (most proximate to date of separation [DOS]).  VARD 20110411 granted a 10% for rating LLE radiculopathy (DC 8521), effective 20101025 (5+ years post-separation).

ANALYSIS SUMMARY:  

Lumbar Spine Condition.  The service treatment record (STR) corroborated the history in the narrative summary (NARSUM) of an onset of back pain with LLE radiation in 1999.  The CI was diagnosed with multi-level lumbar disc disease and underwent a series of three surgical interventions: a discectomy/laminectomy (L4/5) in July 2007, a foraminotomy (left L4/5) in December 2001, and an annuloplasty (left L3/4) in January 2004 (15 months pre-separation).  The surgeries resulted in initial improvement, but symptoms recurred over time.  The most recent magnetic resonance imaging prior to separation demonstrated multi-level degenerative disc disease with the only significant neural encroachment being at the left L5/S1 foramen.  Although there were numerous progress notes, there were no STR entries after the last surgery providing evidence significantly probative to rating;  specifically, there were no entries documenting range-of-motion (ROM) observations or measurements, and none documenting neurological exam findings (although there was one which denied motor or sensory symptoms).  There were no STR entries indicating gait or spinal contour abnormalities and none documenting incapacitating episodes.

The NARSUM was conducted 19 November 2004 (5 months pre-separation) and documented persistent pain (not quantified) radiating into the left hip (sensory symptoms denied) which was aggravated by prolonged sitting (demanded by the MOS) and improved with ambulatory activities.  The NARSUM physical examination did not provide physical findings or comment on ROM or gait (although toe-and-heel walk were normal); but, recorded neurologic findings for normal strength, reflexes and sensation. 

A VA Compensation and Pension (C&P) examination was conducted 11 May 2005 (2 weeks post-separation) and documented constant back pain with left hip radiation, “severe” with bending, and subjective LLE weakness.  The VA physical examination recorded normal posture and gait without comment regarding tenderness or spasm, normal lower extremity strength (“5+/5+”) and reflexes, but decreased LLE sensation in “dermatomes L5 and S1.”  The VA measured ROM was flexion to 70 degrees (normal 90) and combined ROM of 205 degrees (normal 240), specifying “no pain.”

The Board directed attention to its rating recommendation based on the above evidence.  Since no Service ROM is in evidence (albeit possibly available to the PEB), the basis of the PEB’s 10% rating under 5243 (intervertebral disc syndrome) is not clear; although, there was no Service evidence which conflicted with VASRD §4.71a criteria for a 10% rating.  The VA’s 10% rating was consistent with the C&P findings and ROM measurements.  There was no ROM evidence supporting a rating higher than 10%, no evidence for abnormal gait or contour to support a 20% rating; and, no documentation of incapacitating episodes which would provide for a higher rating under that formula.  

The Board considered whether additional Service rating could be recommended under a peripheral nerve code for the associated LLE radiculopathy as contended by the CI.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The intermittently documented sensory component in this case had no functional implications, and no objective motor weakness was in evidence.  There was thus no evidence of significant functional impairment from the associated radiculopathy, and the Board cannot support a recommendation for additional disability rating on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar spine 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 lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended left lower extremity radiculopathy, the Board unanimously agreed that no additional disability rating was indicated.  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 20140502, 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 XXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-01900.

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