RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01489
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20051026

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Pavements and Construction Equipment Craftsman, medically separated for “chronic back pain status post discectomy and fusion,” with a disability rating of 10%.

CI CONTENTION:  His condition continues to worsen and impact his daily activities.  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 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 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 - 20050908	VARD - 20060303	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain Status Post Discectomy and Fusion	5241	10%	Herniated Disc Status Post Discectomy and Fusion	5241	10%	20060301	
			Spondylosis	5099-5003	NSC		
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Back Pain Status Post Discectomy and Fusion.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI developed persistent back pain after a fall in late 2003.  Magnetic resonance imaging (MRI) demonstrated degenerative changes and disc disease (“moderate” left bulge at L4/5 with left neural impingement); and, in April 2004 he underwent surgery (L4/5 discectomy/laminectomy).  He improved post-operatively but had a persistent recurrence of pain with left lower extremity (LLE) radiation in November 2004. A repeat MRI was suggestive of new disc disease (L5/S1) and the CI underwent a second surgical intervention (L4-S1 fusion) in December 2004 (10 months before separation).  Post-operative STR entries reflected significant improvement of the pain and LLE radicular symptoms (no motor or sensory complaints), normal neurological findings with no entries to the contrary, and normal to minimally limited range of motion (ROM).  There were no post-operative STR entries that indicated an abnormal gait or abnormal spinal contour, more severe ROM limitation, or periods of incapacitation.  Further surgery was not indicated; operative results were not sufficient to allow unrestricted duty; and, the CI was referred for an MEB which in turn forwarded “low back pain” to the PEB.  

The NARSUM examination on 6 June 2005 (5 months before separation) documented persistent pain (not quantified, no mention of radicular complaints) amendable to a return to “medium duty” with no limitation of walking or lifting, but with pain at the end of the day upon prolonged sitting or “protracted activity.”  The physical examination recorded “mild tenderness” (no comment regarding gait disturbance, abnormal spinal contour, spasm, or guarding), normal neurological findings (5/5 strength), and “full” ROM except for “some limited flexion, though he is almost able to touch his toes.”  There was a 31 August 2005 addendum to the NARSUM (2 months before separation) that stated the condition was unchanged and provided formal ROM measurements: flexion to 75 degrees (normal 90) with a combined ROM of 210 degrees (normal 240).  

A General VA Compensation and Pension (C&P) examination in December 2004 was supplemented by an addendum of 1 March 2006 (5 months after separation).  These documented “back aches at night and after his construction job” associated with a complaint of LLE numbness (weakness denied).  The physical examination recorded a normal gait, lumbar flattening (although opined by the examiner to be uncorrelated with spasm or guarding as is requisite for rating), “mild” tenderness, and normal neurological findings (motor, sensory, and reflexes).  Measured ROM was flexion to 80 degrees with a combined ROM of 195 degrees.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5241 (spinal fusion) was aligned with VASRD §4.71a criteria for the MEB findings and ROM evidence.  The VA’s rating under the same code cited the C&P ROM evidence for meeting the §4.71a 10% criterion of “flexion ... greater than 60 degrees but not greater than 85 degrees.”  There was no ROM evidence supporting a rating higher than 10%, insufficient evidence for abnormal gait or spinal contour to support a 20% rating, and no documentation of incapacitating episodes or diagnosis of intervertebral disc syndrome that would provide for a higher rating under that formula.  

The Board also considered if additional service rating was justified for peripheral nerve impairment due to the residual LLE radiculopathy.  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).”  Since there was no evidence for objective sensory impairment or motor weakness that would have impacted military occupation-specific activities, members concluded that additional service 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 Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lumbar spine condition.  

BOARD FINDINGS:  In the matter of the lumbar spine 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 20150619, 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-2015-01489.

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