RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXX						            CASE:  PD-2014-02705
BRANCH OF SERVICE:  AIR FORCE	SEPARATION DATE:  20060801

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Traffic Mangement Journeyman) medically separated for chronic low back pain.  The  back condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty.  He was issued a temporary L4 profile and was referred for a Medical Evaluation Board (MEB).  The “chronic back pain w/lumbar HNP” was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other condition was submitted by the MEB.  The Informal IPEB (IPEB) adjudicated “chronic low back pain associated with L5-S1 herniated nucleus pulposis” as unfitting, rated 0% citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The IPEB also adjudicated a hypertension as a Category II (can be unfit, but not compensable/ratable) and overweight as a Category III (not separately unfit & compensable/ratable).  The CI appealed to the Formal PEB (FPEB) who reclassified the disability rating to 10%.  The CI appealed to the Secretary of the Air Force Personnel Council who affirmed the FPEB finding and rating 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/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:  

FPEB – Dated 20060427	VA* - (~19 Mos Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain associated with L5-S 1 Herniated Nucleus Pulposis	5243	10%	Early Degenerative Intervertebral Disk Disease Of The Lumbar Spine With Facet Hypertrophy At The Lumbosacral Level Resulting In Stenosis	5243	40%	20071127	
Hypertension	Cat II	Hypertension	7101	0%		
Overweight	Cat III	No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5 	
RATING:  10%	RATING: 50%	
*Derived from VA Rating Decision (VARD) dated 20080117 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:    

Chronic Low Back Pain associated with L5-S1 Herniated Nucleus Pulposis Condition.  The service treatment record provided limited information and documentation that supplemented the MEB narrative summary (NARSUM) dated 3 March 2006, which indicated the CI injured his back in July 2004 when he lifted a piece of equipment weighing approximately 147 pounds by himself.  He felt a pull in the back that became painful without radiation.  The diagnosis of lumbar strain was made for which he received pain medication (naproxen, a nonsteroidal anti-inflammatory drug, amitriptyline, an antidepressant and for nerve pain, and Roxicet, a combination of oxycodone, a narcotic and acetaminophen, a pain reliever) and underwent physical therapy from January 2005 through at least April 2005 without significant relief of the backpain, stiffness and limited range-of-motion (ROM).  By July 2005, pain worsened across his lower back that was aggravated by standing, sitting, and walking.  An magnetic resonance image revealed a moderate central disc herniation at L5-S1.  A neurosurgeon suggested surgery (laminectomy and a discectomy), but instead the CI underwent a trial of two epidural steroid injections (including one with lumbar facet injections) in July 2005 without benefit.  The CI chose not to undergo surgery.  At the NARSUM examination his lumbar ROM was 90 degrees flexion and neurologic evaluation was unremarkable.  Because of his profile with limitations of duty and hours of work restrictions as well as lack of improvement with physical therapy and pain management, the CI was referred for a MEB/PEB.

A revised temporary physical L4 profile was issued on 18 August 2005.  That and subsequent profiles had limitations of no running, no push-ups or sit-ups, no lifting below hips, no repetitive forward bending, no standing longer than 10 minutes, no formation, no aerobic fitness training, no lifting greater than 10 pounds, and no standing duty until cleared by specialist.  The commander’s statement dated 10 February 2006 indicated the CI was working in his primary specialty and was able to work full shifts.  However, he had a duty restriction that prevented him from deploying with the unit.    In a separate commander’s statement dated 24 May 2006 the commander indicated that the CI’s physical limitations far exceeded 10%, but the CI “will do what is asked without complaining,” and although he could make movements considered near normal, he was in considerable pain while performing the motions.  

At the VA Compensation and Pension (C&P) examination dated 27 November 2007, performed 19 months after separation, the CI reported pain in his lower back and both legs with occasional numbess of his legs.  Since discharge he was treated with analgesics and three epidural injections without significant improvement; however, he did not use any assistive devices.  The CI stated he had severe limitations on walking and could walk only less than a city block.  Additionally, he was not able to do any lifting, pushing, or pulling and standing caused back pain as did kneeling, squatting, and stooping.  The CI noted daily flare-ups and complained of urinary frequency and frequent difficulty evacuating his bowel due to back pain.  Examination revealed an alert male in no acute distress, who ambulated without a limp and got on and off the examining table with ease and turned from side-to-side with ease.  There were no gross deformities of the lumbar spine, but there was slight tenderness on palpation of the lower lumbar paravertebral musculature without any evidence of any muscle guarding or spasm.  Straight leg raising (to determine nerve root irritation) was carried to 10% degrees bilaterally with back pain elicited.  There was no sensory or motor deficit of either lower extremity and neurologic evaluation was unremarkable.  When the CI got on the onto the table in a sitting position and the table, when in placed into full position, the CI complained of very little discomfort.  The examiner opined that the CI’s subjective symptoms were grossly out of proportion to the objective physical findings of the examination.  The CI’s ROM and strength was diminished due to the complaint of pain on repetition, the extent and degree of which was not possible to determine due to the extreme subjectivity of the exercise.  The examiner’s diagnoses were early degenerative intervertebral disk disease of the lower lumbar spine with facet hypertrophy at the lumbosacral level resulting in stenosis at that level.  The ROM evaluations 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 ~5 Mo. Pre-Sep
	VA C&P ~19 Mo. Post-Sep
	
Flexion (90 Normal)	90	10	
Extension (30)	-	0	
R Lat Flexion (30)	-	10	
L Lat Flexion (30)	-	10	
R Rotation (30)	-	20	
L Rotation (30)	-	20	
Combined (240)	-	70	
Comment	DTRs 2+ patellar and Achilles	Straight leg raising with back pain, pain on repetition	
§4.71a Rating	-	40%	

The Board directed attention to its rating recommendation based on the above evidence.   The PEB initially assigned a 0%, which was increased by the FPEB to a 10% rating, using code 5243 (intervertebral disc syndrome) for chronic low back pain associated with L5-S1 herniated nucleus pulposus.  The VA assigned a 40% rating using code 5243 for early degenerative intervertebral disk disease of the lumbar spine with facet hypertrophy at the lumbosacral level resulting in stenosis.   The Board sought a route to a higher rating.  Prior to separation the MEB examination, albeit limited with only a flexion measurement of 90 degrees favored a 0% rating; however, the PT examination suggested limited lumbar motion, but provided limited information for rating purposes IAW the VASRD.  Although the VA examination was 19 months post-separation and had limited probative value, that examination addressed the full spectrum of ROM measurements; however, the record is silent whether there were any intervening accident or injury to account for the significant decrement from the MEB examination.  However, there was some correlation of the measurements related to lateral flexion and rotation of the PT examination.  The Board sought a route for a higher rating, but in the absence of ankylosis (favorable or unfavorable), more limited ROMs, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitation the Board was unable to do so proximate to and/or within 12 months of separation, but it did discuss the VA rating and its applicability in this case. The Board then 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.   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 chronic low back pain associated with L5-S1 herniated nucleus pulposis condition.

Contended PEB Conditions-Hypertension and Overweight.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hypertension condition was not unfitting.  The Board’s threshold for countering a fitness determination requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Category II hypertension, was not profiled or implicated in the commander’s statement.  Hypertension was noted to be 136/80 at the NARSUM examination on 3 March 2006 and ranged from 146/82 to 148/93 in April and May 2006 respectively.  Treatment consisted of zestoretic (blood pressure medication consisting of lisinopril, an angiotension converting enzyme (ACE) inhibitor and hydrochlorothiazide, (a diruetic) and propranolol (a beta blocker).  In July 2006 the CI’s blood pressure was 120/75.  The aforementioned was reviewed and considered by the Board.   There was no performance based evidence from the record that the hypertension condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the hypertension contended condition and so no additional disability rating is recommended.  Overweight is a Category III condition that is not separately unfitting and not compensable or ratable.

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 chronic low back pain associated with L5-S1 herniated nucleus pulposis condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hypertension condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 20140529, 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-2014-02705.

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