RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03653
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20050523

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized Reserve, E6, Armament Systems, medically separated for “chronic low back pain,” with a disability rating of 10%.  

CI CONTENTION:  The CI requests the Board consider all conditions.  The CI’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20040723	VARD - 20050706	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Crush Injury, Thoracolumbar Spine with Multiple Compression Fractures of the Lumbar Spine	5235	20%	20050706	
Obesity	Cat III	No VA Placement	
RATING:  10%	RATING:  20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  The CI sustained a crush injury on 22 March 2003 which resulted in multiple rib and thoracolumbar vertebral body fractures.  He was treated with a thoracolumbar brace stabilizer, physical therapy, and pain medications.  Radiographic evaluations in September and December 2003 demonstrated delayed union at the fracture sites and scoliosis possibly involving the fracture or structural defect between thoracic level 4 and 5.  A bone growth stimulator was prescribed.  A bone scan performed after 2 months of bone stimulator use demonstrated significant improvement of the ribs and thoracic vertebrae fracture sites; however, there was no change in the CI’s back pain.  The CI subsequently underwent several treatment modalities including acupuncture, epidural steroid injections, and prolotherapy (injection of an irritant to promote healing) without thoracolumbar pain resolution.  The narrative summary examination performed 10 months prior to separation demonstrated thoracolumbar tenderness to palpation, an antalgic gait, and left lumbar red discoloration of the skin.  

At the VA Compensation and Pension (C&P) exam performed 2 months after separation, the CI reported chronic daily mid-thoracic/upper lumbar pain while noting pain occasionally radiating to the left buttock as well as left posterior thigh to the level of the posterior left knee. The pain worsened with prolonged siting, standing, and climbing activities.  On physical examination there was tenderness and spasm to palpation in the mid-thoracic and upper lumbar spine; pain limited motion; and positive radicular maneuver on the left.  The goniometric range-of-motion (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 ~13 Mo. Pre-Sep	VA C&P ~2 Mo. Post-Sep	
Flexion (90 Normal)	-	45	
Extension (30)	-	0	
R Lat Flexion (30)	-	10	
L Lat Flexion (30)	-	10	
R Rotation (30)	-	45	
L Rotation (30)	-	45	
Combined (240)	-	155	
Comment	Scoliosis of MRI, antalgic gait, tenderness to palpation	Spasm, pain limited motion	
§4.71a Rating	20%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain).  The VA rated the condition 20%, coded 5235 (vertebral fracture).  The Board considered whether the evidence supported a higher than 10% rating.  The Board determined that radiographic evidence of scoliosis resulting from the vertebral body fracture and pain limited thoracolumbar motion met criteria for a 20% rating.  There was no evidence of forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine for a higher than 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the back condition.  The Board also noted that VASRD code 5235 (vertebral fracture) was a more accurate coding option and recommends a code change. 

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that obesity was not unfitting or compensable.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Obesity was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance based evidence from the record that obesity 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 contended obesity condition. Obesity does not constitute a physical disability and is not ratable in the absence of an underlying ratable causative disorder.

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5235 IAW VASRD §4.71a.  In the matter of the contended obesity condition, the Board unanimously recommends no change from the PEB determination.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain 	5235	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140805, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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

Dear XXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-03653.

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 modification of your assigned disability rating without re-characterization of your 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 direct that your records be corrected as set forth in the attached copy of a Memorandum for the Chief of Staff, United States Air Force.  The office responsible for making the correction will inform you when your records have been changed.

Sincerely,

Attachment:

1.  Directive 
2.  Record of Proceedings 

cc:
SAF/MRBR