RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02457
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20070402

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Tactical Air Command & Control, medically separated for low back pain with a disability rating of 10%.

CI CONTENTION:  “Review all conditions.”  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 – 20061229 	VARD - 20071203	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain, Degenerative Disc Disease and Herniated Disc L4-5	5243	10%	Lumbar Strain with Intervertebral Disc Syndrome	5243	40%	20070828	
Obstructive Sleep Apnea, Status-Post Uvulopalatopharyngoplasty	6847	Cat II	Sleep Apnea Status Post Uvulopalatopharyngoplasty	6847	50%	20070828	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI initially injured his back during a parachute jump in 1999.  Radiographic and Magnetic resonance imaging (MRI) studies revealed a herniated lumbar disc as well as degenerative disc disease.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  

A physical therapy (PT) encounter dated 08 August 2006, 8 months prior to separation, documented a full range of motion (ROM) of the lower back.  A primary care encounter on 20 September 2006, 6 months prior to separation, documented ROM of the lower spine as normal, but painful. 

During the MEB NARSUM examination dated 10 November 2006, 5 months prior to separation, the CI reported constant back pain.  The CI exhibited a normal gait and spinal contour.  Lower back muscle spasms were present.  Thoracolumbar ROM was decreased and painful, noting forward flexion of 80 degrees (normal 90) and extension of 10 degrees (normal 30).  There was normal bilateral lateral flexion and no documented ROM for bilateral rotation of the lower spine.  A primary care appointment on 08 January 2007, 3 months prior to separation, noted lower spine ROM described as “mildly decreased” and painful upon motion.  At the 28 August 2007 VA Compensation and Pension (C&P) evaluation, performed 5 months after separation, the CI reported back pain that occurred constantly and traveled up and down the spine and legs.  Pain was elicited by physical activity and stress.  On examination, the CI exhibited lower spine tenderness with muscle spasms however, gait and spinal contour were normal.  ROM was recorded with flexion at 20 degrees (normal 90) and combined ROM at 70 degrees (normal 240).  This represents a 78% deficit in forward flexion and 71% deficit in combined ROM, severe deficits not recorded in any other examination in evidence. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition at 10%, coded 5243 (intervertebral disc syndrome), citing Department of Defense and Veterans Administration Schedule for Rating Disabilities (VASRD) guidelines.  The VA rated the low back condition at 40% coded 5243, based on the VA C&P examination 5 months after separation, citing a limitation of flexion to 20 degrees.  

In assigning probative value to these somewhat conflicting examinations, the panel noted that the MEB measurements were consistent with other proximate (pre-separation) examinations by primary care and PT.  The ROM values reported by the VA examiner (5 months after separation) were significantly worse than those reported by the MEB examiner (5 months before separation).  There was no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements.  While ROM limitations may have progressed over time, there was no evidence in the record from which to conclude that the severity at separation approached that portrayed by the VA measurements.  The panel members agreed that the MEB examination was more consistent with the STR and more reflective of the anticipated severity, based on the clinical pathology.  The panel therefore relied more heavily on the MEB examination measurements and agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees).  

The panel also considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB’s adjudication for the low back condition.  

Contended PEB Condition:  Obstructive Sleep ApneaStatus-Post Uvulopalatopharyngoplasty.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the  panel  concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended obstructive sleep apnea, status-post uvulopalatopharyngoplasty condition, the panel unanimously recommends no change from the PEB’s determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  The panel, 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, 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

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2015-02457.

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.  The Board recommended no re-characterization or modification of your separation.

I 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.  I accept their recommendation that your application be denied.

Sincerely,

XXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings