RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01281
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20040315

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Aircrew Life Support Journeyman, medically separated for “chronic lower back pain” with a disability rating of 10%.  

CI CONTENTION:  Requests 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 at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  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 - 20031020	VARD - 20050425	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Lower Back Pain	5295	10%	Degenerative Changes Lumbar Spine with Radiculopathy	5237	10%	20041222	
Overweight	Not Unfitting	No VA placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Lower Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI was aero-medically evacuated to CONUS for back pain with radiculopathy causing weakness.  On 6 May 2002 he underwent back surgery with right L4-5 and L5-S1 hemi-laminectomy and discectomy.  He initially did well but soon after his pain returned.  He was treated with lengthy courses of physical therapy which was only minimally helpful.  He was also treated with epidural steroid injections and steroid injections into his facet joints which only provided temporary relief.  A dorsal column spinal nerve stimulator was also applied with no resolution of symptoms.  

The 3 June 2003 MEB NARSUM orthopedic examination, 9 months prior to separation and 13 months after surgery, noted complaints of continued pain in the low back with occasional radiation to the right posterior thigh.  Physical examination showed a well-healed surgical scar.  There was paraspinal muscle tenderness in the right lumbar area.  Range of motion (ROM) was not recorded.  

At the 29 July 2003 flight medicine clinic appointment, 8 months prior to separation and 15 months after surgery, the CI complained of chronic back pain.  Physical examination showed his gait was “careful and deliberate”.  ROM measurement showed normal flexion to 90 degrees with mild pain.  At the 5 December 2003 flight medicine clinic appointment, 3 months prior to separation and 19 months after surgery, the CI reported that he re-injured his back, slipped while washing dishes.  Physical examination showed that the CI could bend to his knees for forward flexion (approximately 45-60 degrees).  The examiner also reported muscle spasm.  At the 18 December 2003 physical therapy appointment, 3 months prior to separation and 19 months after surgery, ROM measurements showed flexion to 50 degrees with pain.  It is unclear if the physical therapist measured lumbar or thoracolumbar range of motion.  

At the 22 December 2004 VA Compensation and Pension (C&P) examination, 9 months after separation, the CI reported a history of chronic low back pain, with pain that went into the right lower extremity.  The CI reported “he cannot work because of his back pain.”  Physical examination showed a normal gait.  ROM measurements showed flexion of 75 degrees, extension to 25 degrees (normal 30) and lateral bending to each side 20 degrees (normal 30).  The examiner noted “there is a lot of symptom magnification during this examination and part of his examination is not very credible.”  At the 22 January 2005 VA C&P spine examination, 10 months after separation, the CI reported low back pain.  The examiner reported that the CI “does have a sort of limp to his right lower extremity.”  Physical examination showed ROM measurements of flexion to 30 degrees, however, extension, side bend, and rotation were all normal, for a combined ROM of 180 degrees (normal 240).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5295 (lumbosacral strain – using the 2002 VASRD).  The VA also rated the back condition 10%, coded 5237 (lumbosacral strain – using the 2004 VASRD), based on the C&P examinations after separation, citing paralumbar spasm and flexion to 75 degrees.  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 5 December 2003 flight medicine and 18 December 2003 physical therapy examinations.  The panel noted that the limitation of thoracolumbar motion recorded in the 22 December 2004 and 22 January 2005 VA C&P examinations were widely varied.  In assigning probative value to these conflicting examinations, members noted that each of the VA examiners made comments suggesting parts of their examination findings were unreliable.  Members agreed that the December 2003 examinations were more consistent with the preponderance of evidence proximate to separation.  The panel therefore relied more heavily on the December 2003 examination measurements, and agreed that a 20% rating was appropriate for the back condition based on ROM.  The panel next 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, after returning from convalescent leave following his May 2002 operation there were only two episodes of quarters (physician prescribed bed rest) for back pain in the available evidence prior to separation which did not provide for a more advantageous rating.  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 5243.  

Contended PEB Condition:  Overweight.  The panel’s main charge is to assess the fairness of the PEB’s determination that the overweight was not unfitting.  The overweight condition is a condition not constituting a physical disability, IAW DoDI 1332.38.  Therefore, the panel has no basis for recommending it as unfitting.

BOARD FINDINGS:  In the matter of the chronic lower back pain condition and IAW VASRD §4.71a, the panel unanimously recommends a disability rating of 20%, coded 5297.  In the matter of the contended overweight condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back Pain, Status Post Right L4-L5 and L5-S1 Discectomy	5297	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160928, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MRB

XXXXXXXXXXXXXXXXXX

Dear Applicant:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2016-01281.

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.  This will not result in any change to your separation documents or the amount of severance pay you are entitled to.  Disability severance pay is computed the same regardless of a rating of 0, 10 or 20 percent.

						Sincerely,

		

Attachment:
1.  Directive 
2.  Record of Proceedings