RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00259
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20080428

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Security Forces Craftsman, medically separated for “low back pain status-post fusion of L5-S1” with a disability rating of 10%.  

CI CONTENTION:  The CI has been unemployable since date of separation and was given a higher rating for his condition by the VA.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20080227	VARD - 20081007	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain Status Post Fusion of L5-S1	5241	10%	Status Post Lumbar Spine Fusion	5237	20%	20080829	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Low Back Pain Status Post Fusion of L5-S1.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with fusion of L5-S1 in April 2007.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic back pain” for PEB adjudication.  

The 21 December 2007 MEB NARSUM examination, 4 months prior to separation, noted complaints of pain in the sacroiliac (SI) joint and persistent numbness and tingling in his foot.  The physical examination showed tenderness to palpation of right SI joint, but no paraspinal muscle spasms. Range of motion (ROM) was noted to be full but pain was reported with flexion and bending to the right.  

At the 29 August 2008 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported a long history of back pain with a fusion in April 2007.  The CI stated he had pain and stiffness all the time with numbness into the left leg and foot and couldn’t lift more than 20 pounds.  His pain was aggravated with increased activity.  The physical examination showed no muscle spasm or tenderness to palpation.  Gait was normal. Reflexes and motor strength were normal.  Sensory was diminished on the left.  Straight leg raise was negative.  Thoracolumbar ROM measurements showed flexion of 45 degrees (normal 90) and combined ROM of 165 degrees (normal 240) with no loss of motion after repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5241 (spinal fusion).  The VA rated the back condition 20% coded 5237 (lumbar spine strain), based on the VA C&P examination 4 months after separation, citing forward flexion of 46 degrees.  The panel noted that the thoracolumbar motion recorded in the MEB NARSUM examination was reported as full ROM with pain during flexion and right lateral flexion.  Although there was insufficient limitation of motion to support a minimum rating under the General Rating Formula for Diseases and Injuries of the Spine, the examination met the threshold for a 10% rating for painful motion and tenderness.  The thoracolumbar motion (flexion of 45 degrees) recorded in the VA examination did meet the threshold for a 20% rating however the panel majority agreed that the NARSUM examination, performed was more reflective of his status a separation.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  The panel majority therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back pain condition.  

BOARD FINDINGS:  In the matter of the low back pain status post fusion, the panel majority recommends no change in the PEB adjudication.  There were no other conditions within the panel’s scope of review for consideration.  The single voter for dissent recommended modification to 20% and did not elect to submit a minority opinion.  The panel majority, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150425, 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

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2015-00259.

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,

XXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings