RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00643
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20040428

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an E4, Tactical Aircraft Maintenance Journeyman, medically separated for “chronic 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 - 20040129	VARD - 20040923	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5243	10%	…Low Back Injury with Herniated Disc at L4-L5…	5237	40%	20040923	
	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in March 2002 after changing a truck tire.  Treatment consisted of a profile, Motrin (a nonsteroidal anti-inflammatory drug (NSAID), and stretching.  Flexeril (cyclobenzaprine, a muscle relaxer) was added to the treatment along with physical therapy.  On 17 December 2002 magnetic resonance imaging (MRI) demonstrated degenerative changes in the disk area of L4-S1.  At L4-L5 there was a protrusion onto the dural sac and at L5-S1 there was medial disk herniation on the back area of the dural sac and the foramen on both sides.  In June 2003 the CI underwent a surgical removal of the herniated disc at the L4-L5 level only; however, the CI was without relief of pain.  On 8 September 2003 an addendum indicated a follow-up MRI on 11 August 2003 showed the L4-L5 herniated disc was no longer visualized with evidence of surgery at that level on the right side.  The median L5-S1 herniated disc appeared unchanged.  The CI reported feeling better and had no paresthesia.  In October 2003 the CI noted he was still having problems and his pain was worsened by long sitting, twisting, and long standing.  

The 18 December 2003 MEB NARSUM examination, 4 months prior to separation, noted complaints of daily pain and lower extremity sciatic pain.  Physical examination showed evidence of a herniated disc at the L5-S1 level.  The CI could only flex within 18 inches of the floor (~45‐60 degrees) and had minimal extension.  There was some tenderness to palpation, and the CI had difficulty transitioning to the standing position.  The CI’s gait revealed no limp.  

At the 21 June 2004 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported a recurrence of pain after surgery; however, he could walk approximately one block, but did not use a crutch or cane.  Physical examination showed a profound positive Lasègue’s signs (to determine nerve root irritation) bilaterally along with tenderness over the CI’s back.  Range of Motion (ROM) measurements were 15 degrees of flexion (normal 90) and 0 degrees of extension (normal 30) with less than 5 degrees of right and left flexion and right and left rotation.  Movements were all painful with excruciating painful movements in the lying, sitting to standing, and moving positions.  The examiner’s diagnosis was “history of back injury with herniated discs at L4-L5 and L5-S1 with recurrent pain, muscle spasm, and perhaps scarring from his disc surgery, extremely symptomatic.”  Furthermore, the examiner opined that he was “strongly suspicious that he [the CI] will need more surgery in order to get him to a tolerable level” and considered it “a very urgent situation.”  On 30 July 2004 the CI stated he felt better since starting Naprosyn (naproxen, an NSAID), Vicodin (hydrocodone, a narcotic and APAP (acetaminophen, a pain reliever), and Flexeril.  He had normal bowel and bladder movements and had no focal neurologic symptoms except for constant radiation of pain down both legs, but no gross neurologic deficits.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic LBP status post discectomy L4-L5 with residual herniated nucleus pulposus L5-S1 condition 10%, coded 5243 (intervertebral disc syndrome).  The VA rated the LBP condition 40%, coded 5237 (lumbosacral strain), based on the C&P examination 2 months after separation, citing 15 degrees of flexion and 0 degrees of extension with pain on all ranges of motion.  The panel noted that the limitation of lumbar flexion of “18 inches from the floor” reported in the MEB NARSUM suggested consideration of the next higher rating of 20%; however, the panel members agreed that the VA examination, performed post-separation, but more proximate to separation than the NARSUM examination, was more detailed and compliant with VASRD rating guidelines.  Therefore, the panel placed greater probative value on the VA examination and agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees.  Moreover, the CI at the time of separation still had a herniated disc at L5-S1, which was not removed at the surgery in June 2003.  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).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the LBP condition, coded 5243.

BOARD FINDINGS:  In the matter of the LBP condition, the panel unanimously recommends a disability rating of 40%, coded 5243 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 LBP	5243 	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160915, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

SAF/MRB

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2016-00643.

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.  The Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

I 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 XXXXXXXXXXXXXXXXXX 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.

Sincerely,

Attachment:
Record of Proceeding