RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03965
BRANCH OF SERVICE:  Air Force	SEPARATION DATE:  20061030

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Enlisted Accessions Recruiter, medically separated for “low back pain,” with a disability rating of 20%.

CI CONTENTION:  The applicant makes no specific contention in his application.  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 - 20060915	VARD - 20080229  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5241	20%	Status Post Fusion, Lumbar Spine with Intervertebral Disc Syndrome	5241	10%	20071016	
			Peripheral Nerve Disease, Femoral Nerve, Right Lower Extremity	8526	10%	20071016	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:   

Chronic Low Back Pain.  The service treatment record and the Medical Evaluation Board (MEB) narrative summary (NARSUM) dated 28 June 2006, indicated the CI had low back pain since February 2002, which occurred when he leaned back in a chair and felt an electrical shock in his back without any obvious acute injury.  Magnetic resonance imaging showed a two-level disc degeneration at L4-5 and L5-S1 with apparent distortion of the left S1 nerve root.   In January 2003, the CI had an L4-5 and L5-S1 anterior lumbar interbody fusion with allograft and pedicle screw fixation.   Imaging postoperatively showed satisfactory alignment of hardware and the vertebrae.  However, by the fall of 2003, it was determined that the fusion did not take, and he had a repeat fusion at L4-5.  A note in May 2006 indicated he was in continuous chronic pain, and it was thought he had a chronic pseudoarthrosis (nonunion) at his lower two lumbar levels.  Postoperatively, the CI was retrained from a weapons loader to a recruiter. The NARSUM author noted that the CI had intractable pain all the time up to 8-9/10 (10/10 being the worst pain), which felt like a ripping sensation in the lower back near the incision sites with radiation of the pain down his right leg.  Driving was very painful due to prolonged sitting; and he missed work due to flare-ups of pain/incapacitation.  No further neurosurgical treatment was planned.  On examination, the CI’s gait and stance were normal and a slight diminution of the right Achilles reflex (2/4+) was noted.  Range of motion (ROM) studies performed by a physical therapist, who noted the CI had just arrived after a 2+ hour long drive for the appointment, are in the chart below.  

At the VA Compensation and Pension (C&P) examination dated 16 October 2007, performed 12 months after separation, the CI reported a 5-year history of stiffness, weakness and extreme leg and back pain, which travelled to the right leg and was described as burning, aching, and sharp.  At the time of pain, the CI could function with the medication and he indicated the spine condition did not cause incapacitation.  The CI did note difficulty walking.  The ROM measurements from the examination are in the chart below.  Joint function was limited by pain, fatigue, weakness, and lack of endurance after repetition, but there was no loss of motion.  The spine was symmetrical and had normal curvatures.  There were signs of intervertebral disc syndrome with motor weakness of the right hip in various motions that improved with repetition, but reflexes of the lower extremities were equal and there was no history of bowel, bladder or erectile dysfunction.  Lumbosacral spine X-rays in October 2007 showed bilateral posterior surgical stabilization of L4, L5, and S1 and was otherwise a negative lumbar spine examination.  

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)	PT/MEB ~2 Mos. Pre-Sep
	VA C&P ~12 Mos. Post-Sep
	
Flexion (90 Normal)	(35) 30, 32, 35	70	
Extension (30)	          (10) 8, 9, 9	20	
R Lat Flexion (30)	(10) 10, 11, 12	20	
L Lat Flexion (30)	(10) 12, 12, 12	20	
R Rotation (30)	(30) 27, 27, 29	20	
L Rotation (30)	(25) 25, 26, 26	20	
Combined (240)	120	170	
Comment	Pain 8/10 prior to PT assessment of active ROM; no increase in pain after passive repetition	Painful motion, but no loss of motion on repetition; right hip weakness during ROMs 2/5/5	
§4.71a Rating	PEB 20%	VA 10% and 10% for radiculopathy	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating using code 5241 (Spinal fusion) for chronic low back pain-post spinal fusion x 2.   The VA assigned a 10% rating using code 5241 for status post fusion, lumbar spine with intervertebral disc syndrome and a 10% rating using code 8526 (mild incomplete paralysis of the anterior crural nerve (femoral))  for peripheral nerve disease, femoral nerve, right lower extremity.  The Board sought a route for a higher rating; however, in the absence of ankylosis, forward flexion of the thoracolumbar spine 30 degrees or less (albeit one PT measurement indicated 30 degrees, but increased to 35 with repetition), or incapacitation (documented by a physician or bed rest prescribed) could not do so.  Board members did discuss the flexion measurements of 30/32/35 degrees and the combined ROM of 120 degrees prior to separation, which were obtained after a long drive, a known exacerbating cause of increased pain.  Furthermore, Board members did note that by 12 months post-separation, albeit at the limit of a look forward that has probative value, forward flexion was 70 degrees and the combined ROM was 170 degrees.  

The Board then considered whether an additional Service rating could be recommended under a peripheral nerve code cognizant that the VA did assign a rating of 10% based on initial weakness of hip flexion, which actually normalized with repetition.  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 at the time of separation.  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 condition. 

BOARD FINDINGS:  In the matter of the chronic 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.  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 20140911, 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 XXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-03965.

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