RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX		CASE:  PD-2015-00373
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070612

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active E4, Aircraft Fuel Systems Journeyman, medically separated for “low back pain due to degenerative disc disease status post L4-5 discectomy, laminectomy, and fusion” with a disability rating of 10%.  

CI CONTENTION:  The CI contends that his back condition with radiating pain and leg numbness has worsened and that the rating should be changed.  His 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 – 20070502	VARD - 20080324	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain…	5241	10%	Herniated Nucleus Pulposus…	5243	10%	20080220	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Low Back Condition.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent an L4-L5 discectomy for a herniated disc in January 2006.  Because of recurrent L4-L5 disc herniation and left sciatic radiculopathy, the CI underwent repeat L5 decompression and L4-L5 discectomy, foraminotomy, laminectomy, and posterolateral fusion in on 15 March 2006.  Following the second surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “lower back surgery” for PEB adjudication.  At the physical therapy (PT) ROM measurement on 8 August 2006, 10 months prior to separation, the examiner recorded that active and passive ROM were “increasing slowly but steadily.”  On examination, his ROM was limited as indicated in the chart above.  There was no evidence of painful motion.  He did have localized tenderness, but tests for radiating pain were negative.  His strength and sensation were normal.  

The MEB NARSUM examination on 15 September 2006, 9 Months prior to separation, noted complaints of daily 3/10 back pain.  The physical examination showed “severely limited” ROM in all planes of motion due to pain.  Tests for radiating pain were positive, but his gait, motor strength, reflexes, and sensation were normal.  At the PT ROM measurement on 28 March 2007, 3 months prior to separation, the examiner found painful limited ROM as indicated in the chart above.  There was muscle guarding noted with passive ROM, but the examiner did not comment on abnormal gait or abnormal spinal contour.  The CI had localized tenderness.  Tests for radiating pain were negative and he had normal motor strength and sensation.  

At the 20 February 2008 VA Compensation and Pension (C&P) examination, 8 months after separation, the CI reported pain across his lower back radiating to both legs and down to both feet with tingling.  The CI also reported decreased strength in his left leg.  Physical examination showed decreased ROM as indicated in the chart above with pain starting at 20 degrees of flexion.  There was no additional decrease in flexion with repetitive movements.  Although there was guarding of movements with forward flexion, the gait and spinal contour were normal.  There was no spasm, but moderate tenderness was noted.  Although there was some “decrease in strength” during ROM testing, his motor strength, reflexes, and sensation were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10% under the 5241 code (spinal fusion).  The VA rated the back condition 10% under the 5243 code (intervertebral disc syndrome), based on the VA C&P examination 8 months after separation, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees and/or combined ROM greater than 120 degrees but not greater than 235 degrees.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion greater than 30 degrees but not greater than 60 degrees reported on the PT ROM examination.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  The CI had a herniated disc with radicular pain treated with surgery, and there were symptoms of radiating pain documented in the treatment records; however, examiantions indicated normal strength, reflexes, sensation and gait.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, and considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the back condition, coded 5241.  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain…	5241	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140725, 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-2015-00373.

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,

Attachments:
1.  Directive 
2.  Record of Proceedings 

cc:
SAF/MRBR