RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01945
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20150626
SEPARATION DATE:  20050322

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (C-130 Loadmaster) medically separated for back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty (AFS).  He was issued a permanent P4 profile and referred for an Medical Evaluation Board (MEB).  Bilateral bulging disc with facet arthrosis at L4-5 was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other condition was submitted by the MEB.  The Informal PEB adjudicated chronic back pain as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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:

Service IPEB – Dated 20050204	VA	
Condition	Code	Rating		
Chronic Back Pain…	5243	10%	No VA Claim Filed	
Other MEB/PEB Conditions x 0 (Not In Scope)		
RATING:  10%	NONE	

ANALYSIS SUMMARY:  The MEB narrative summary (NARSUM) was not available in evidence prior to the Board and could not be located after appropriate inquiries.  Further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case.

Chronic Back Pain.  Besides the absence of the NARSUM and VA documentation since the CI did not file a VA claim, the service treatment record (STR) had limited primary source material; however the STR relies upon medical officer summaries and a line of duty (LOD) investigation, which includes statements by the CI.  After release from active duty in June 1992, the CI indicated he ruptured the disc between L4 and L5 in his lower back in December 1992 from years of heavy lifting and had treatment with steroids and chiropractic care, which seemed to cure the injury.  In 1998 he re-enlisted in the Air Force Reserves after a 6 year break in service.  On or about 25 July 2003, while performing loadmaster duties, he felt a sharp pain in the lower back, which he reported to his senior NCO.  He saw a neurosurgeon upon return, who diagnosed a herniated disc and arthritis based on a magnetic resonance imaging (MRI) dated 12 August 2003, which revealed bilateral bulging of the disc and facet arthrosis (arthritis) at L4-5 with Grade I retrolisthesis (backward slip) of L5 on S1 and a probable left L5 nerve root impingement.  A flight surgeon’s entry in the STR dated 9 October 2003 noted the neurosurgeon had ordered 20 physical therapy visits through January 2004, while the neurosurgical note dated 14 October 2003 indicated the degenerative osteoarthritic changes present on the MRI were permanent and would “only progressively get worse as this person ages.”  The neurosurgeon further noted that “because of his ten year history,” the CI should not lift greater than 20 pounds, bend or twist at the waist, and should change positions hourly.  As a result of those limitations, the CI was permanently disqualified from flight status on 30 December 2003.

The commander’s statement dated 23 January 2004 indicated “[t]he current work restrictions … makes it impossible to utilize him in the performance of the normal duties of his AFS … [C-130 Loadmaster and he] would be a hazard to himself and a liability to the crew.”  The CI “no longer possesses the physical stamina or range of body motions required to perform even the most rudimentary of tasks associated with his normal duties.”  Although an MEB NARSUM was not available, the flight surgeon summarized the CI’s history on 11 February 2004 and noted that the CI’s back pain occurred in 1992 after he left active duty and subsided after about 6 to 8 weeks of therapy.  Pain recurred in May 2003 and was controlled with anti-inflammatory medication and became severe in July 2003 after having been bent over for a prolonged period of time while rigging platforms.  A legal review of a LOD determination based on the medical facts in the STR and the CI’s written statements was completed on 7 March 2004 and recommended a determination of EPTS—LOD Not Applicable be made because the CI failed to reveal the history of the back injury while in a civilian status when he re-enlisted in the AF Reserves.  However, the surgeon general recommended EPTS service aggravated, but to be consistent with AFI 36-2910, the LOD was changed to ILOD (in line of duty) on 24 September 2004.  A P4 profile was issued on 9 January 2005 and indicated the CI was not qualified for deployment and the “member may not participate in the reserves for pay or points until his/her “fitness for continued military service” is determined.”

No entries were found in the STR addressing examination of the CI’s back range-of-motion (ROM) nor were there any MEB or VA examination findings.  Therefore, ROM evaluations normally in evidence, which the Board weighs in arriving at its rating recommendation, cannot be determined.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB applied a 10% rating using code 5243 for “chronic back pain associated with bulging disk with facet arthrosis at L4-5 and grade I retrolisthesis of L5 on S1 (condition not revealed on entrance physical).”  There was no VA rating since no VA claim was filed.  The Board considered whether an additional service rating could be recommended under a peripheral nerve code.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to service disability in spine conditions.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed 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,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.  The Board sought a route for a higher rating, but was unable to find one based on the absence of mention in the STR of additional ROM limitations, gait disturbance, abnormal spinal contour, and/or incapacitating episodes.  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 for the low 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 pain 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 20140423, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
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 (Section 1554, 10 USC), PDBR Case Number PD-2014-01945.

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,

XXXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings

cc:
SAF/MRBR