RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02113
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20150514
SEPARATION DATE:  20060510

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Integrated Avionics Systems Electronic Warfare Craftsman) medically separated for a lumbar spine condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty (AFS).  He was issued a temporary L3 profile and referred for an Medical Evaluation Board (MEB).  Chronic lower back pain was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other condition was submitted to the MEB.  The Informal PEB adjudicated chronic low back pain, status post L4-5 discectomy and fusion as unfitting, rated 20% citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  Additionally, tobacco habituation condition was determined to be Category III (not separately unfit and compensable/ratable).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 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 20060329	VA* (10 Wk. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain (Surgical Residuals)	5241	20%	Lumbar Spine, Fusion	5241	20%	20060728	
Tobacco Habituation	Category III	No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0	
RATING:  20%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20060511 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Lumbar Spine.  The service treatment record (STR) corroborates an abrupt onset of back pain (and bilateral radicular symptoms) with squat lifting in March 2004 (2 years prior to separation).  The symptoms persisted and imaging (MRI) revealed a disc protrusion (L4/5).  A protracted trial of conservative treatment (including epidural injections) was unsuccessful; and, in June 2005 (11 months prior to separation), the CI underwent surgery (laminectomy with L4/5 fusion).  A neurosurgical post-operative note of January 2006 (7 months post-operative, 4 months prior to separation) noted an “uneventful” recovery; and, recorded a normal gait, normal neurological findings, and assessed range-of-motion (ROM) as 50 degrees flexion (normal 90) with painful motion.  There is no STR documentation of significant ROM limitation, abnormal gait or spinal curvature, neurological deficits, or incapacitating episodes (after surgical recovery).  

The MEB narrative summary (NARSUM) was conducted on 28 February 2006 (10 weeks prior to separation).  The examiner documented continued pain with an inability to meet the “lifting and physical requirements” of the AFS, and specified that there was “no evidence of radiculopathy ... [or] ... other neurological symptoms reported.”  The NARSUM physical exam recorded a normal gait without comment on tenderness or spasm, and detailed normal strength and neurological findings.  The only documented ROM finding was “forward bending is well done up to 50⁰ with some discomfort ....”  There is a civilian orthopedic exam from July 2006 (8 weeks after separation) which does not indicate any radicular symptoms; and, records a “normal gait without assistive devices,” normal neurologic findings (5/5 strength), and “relatively normal” lumbar ROM.

A VA Compensation and Pension (C&P) examination was conducted 28 July 2006 (10 weeks post-separation), and documented persistent pain (severity and limitations not elaborated) with a “dull throb” occasionally “occurs every 2-3 days” down the right leg.  The VA physical exam recorded a normal gait, “mild” lumbar flattening without tenderness or spasm, and normal neurological findings.  The VA measured ROM was flexion to 60 degrees and combined 200 degrees (normal 240), annotating painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating under code 5241 (spinal fusion) was consistent with VASRD §4.71a criteria for the MEB ratable findings and ROM evidence (corroborated by the STR).  The VA’s identical code and rating likewise rested on the §4.71a criterion of flexion ≤ 60 degrees (but > 30 degrees) as provided in the C&P evidence.  There was no route to a higher rating under any alternate code, no evidence of additionally ratable peripheral nerve impairment, and no documentation of incapacitating episodes which would provide for a higher rating under that formula.  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 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.  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 20140506, 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-2014-02113.

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