RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2016-00136
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20040621

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Helicopter Flight Engineer, medically separated for “chronic neck pain” and “chronic lower back pain,” rated at 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  The VA gave him a higher rating.  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 - 20040402	VARD - 20040617	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain 	5242	10%	Herniated Cervical Disc C6-7 	5290	20%	20031119	
Chronic Lower Back Pain 	5242	10%	Herniated Lumbar Disc L5-S1 	5292	20%	20031119	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck condition began in July 2002 after a fall.  X-rays showed mild C3-4 and C5-6 foraminal stenosis and mild posterior osteophytes at C6-7.  MRI showed cervical spondylosis at C6-C7 with a broad disc-osteophyte protrusion that did not cause significant central canal stenosis.  Range of motion (ROM) studies on 23 December 2002, 15 January 2003 and 17 January 2003 showed full ROM of the neck.  

At a 28 March 2003 neurosurgery appointment, the CI reported mild neck pain.  Physical examination revealed tenderness and decreased cervical ROM in lateral rotation (specific ROM measurements were not provided).  The neurosurgeon diagnosed straightening of the normal cervical lordosis consistent with cervical muscle strain and spasm from the previous MRI.  The neurosurgeon suggested surgical options which the CI ultimately declined.  

At the 19 November 2003 VA Compensation and Pension (C&P) evaluation, 7 months before separation, the CI reported sharp pain in his lower neck that radiated down his back and shoulders.  He reported flare-ups that caused him to miss six work days in the previous 12 months.  Physical examination noted tenderness, but no cervical spasm and was silent regarding gait and spinal contour.  ROM Studies showed flexion of 30 degrees (normal 45) and combined ROM of 230 degrees (normal 340), with painful motion.  

The 6 March 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of neck pain and upper extremity numbness.  Physical examination showed a normal gait.  The examiner noted paraspinal muscle spasms but recorded the ROM examination in a non-standard fashion that was not useful for rating purposes.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5242 (degenerative arthritis of the spine).  The VA rated the neck condition 20%, coded 5290 (moderate limitation of motion of the cervical spine), based on the C&P examination 7 months before separation, citing a moderate limitation of forward flexion.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion greater than 15 degrees but not greater than 30 degrees, as reported on the VA examination and for spasm resulting in reversal of the normal cervical lordosis reported on the neurosurgical evaluation.  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 that alternate VASRD formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the neck condition, coded 5242.  

Chronic Lower Back Pain (LBP).  According to the STR and the MEB NARSUM, the CI’s low back condition also began in July 2002 while on active duty for training after the above-mentioned fall.  X-rays showed mild disk narrowing at L5-S1 and MRI showed a herniated disc at L5-S1 and bulging disk at L4-5.  Neurosurgery suggested surgical options for the LBP which the CI ultimately declined.  

At the 19 November 2003 C&P evaluation the CI reported constant LBP which intensified with prolonged sitting, laying, or climbing stairs.  He stated that he had missed a total of 5 weeks of work due to back pain, but denied being incapacitated during flare-ups.  [There was no indication that he had been prescribed bedrest by a physician due to his LBP.]  Physical examination showed no spasm or sacroiliac joint tenderness and normal spinal curvature.  ROM studies showed 60 degrees of flexion (normal 90) and combined thoracolumbar ROM of 200 degrees (normal 240), with painful motion.  The 6 March 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of LBP.  As with the neck condition, the physical examination was limited, reporting a normal gait and silent regarding ROM, spasms, or spinal contour.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5242.  The VA rated the back condition 20%, coded 5292 (moderate limitation of motion of the lumbar spine), based on the C&P examination 7 months before separation, citing moderate limitation of forward flexion.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion greater than 30 degrees but not greater than 60 degrees, as reported on the VA examination.  There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition, coded 5242.  

BOARD FINDINGS:  In the matter of the neck condition, the panel unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the back condition, the panel unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain 	5242	20%	
Chronic Lower Back Pain 	5242	20%	
COMBINED	40%	

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

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Dear Applicant:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2016-00136.

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 your separation be re-characterized to reflect disability retirement, rather than 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 determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.