RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01715
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20040706

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Tactical Aircraft Maintenance, medically separated for “low back pain with associated depressive disorder” with a disability rating of 20%.  

CI CONTENTION:  “These conditions were worse.  I also have applied SS Disability.”  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 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 - 20040512	VARD - 20041102	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain with Associated Depressive Disorder	5237	20%	Chronic Intractable Back Strain	5243-5237	20%	20040927	
			Adjustment Disorder with Mixed Emotional Features	9440	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  The PEB combined the low back pain with associated depressive disorder conditions under a single disability rating, coded 5237 (lumbosacral strain).  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel’s initial charge in this case was therefore directed at determining if combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the low back pain with associated depressive disorder conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in November 2002 after heavy lifting.  The first record in evidence was dated 15 January 2003.  His back was non-tender and the range of motion (ROM) was full.  The LBP was attributed to his obesity.  He was treated with medications and physical therapy.  On 10 February 2003, X-rays showed normal disc spaces and bony structures.  His pain persisted and magnetic resonance imaging (MRI) studies on 10 April 2003 showed a relatively small broad-based disc bulge at L4-5 with no significant canal or nerve root impingement.  He continued to have pain and was referred to pain management and life skills.  Injections by the former provided partial relief.  Stress management techniques provided by the latter also were partially beneficial.  An evaluation by neurosurgery on 10 July 2003, 12 months prior to separation, recommended non-surgical treatment.  The CI had a normal neurological examination.  He had stiffness when bending forward to touch his toes which he could not reach.  A CT myelogram showed mild degeneration at L4-5 without significant canal or foraminal compromise (no cord or nerve root impingement).  A provocative test for disc pain, a CT discogram, was also negative.  

The 3 October 2003 MEB NARSUM examination, 9 months prior to separation, noted complaints of persistent LBP.  He had partially responded to treatment; the CI requested cross-training to a less demanding specialty.  His commander, in an undated assessment, noted that the CI lacked motivation to perform within the parameters of his profile (restrictions) and recommended separation.  The physical examination showed normal strength, normal reflexes, tenderness, and straight leg raise test was negative for radiculopathy.  The examiner reported that the ROM measurements showed flexion of 25 degrees and a combined ROM of 135 degrees (normal 240).  These were of the lumbar (not thoracolumbar) spine; probative value of these measurements is therefore reduced.  There was no abnormal gait or spasm noted.  On 30 October 2003, the CI was seen in primary care and noted to have a very slow gait.  He appeared “to be tearful in office when I advised RTW (return to work)…” 

At the 27 September 2004 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported chronic back pain, worse with any activity.  He also reported numbness going down the leg at times.  On physical examination, the CI was 75 pounds overweight, had a normal posture and a slow measured gait with a slight limp.  The ROM measurements showed a forward flexion of 45 degrees and a combined ROM of 155 degrees.  The CI was able to stand on his heels and toes, reflexes were normal, and sensation was intact.  The motor examination was not recorded, but the CI was able to squat (limited to one time due to the CI’s concerns of aggravating his LBP).  In a VA note dated 11 January 2005, 6 months after separation and found in an evaluation for Social Security Disability dated 28 September 2010, the CI was noted to have equal strength bilaterally and full ROM of the lumbar and thoracic spine.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5237 (lumbosacral strain).  The VA also rated the back condition 20%, coded 5243-5237 (intervertebral disc syndrome-lumbosacral strain), citing limitation of motion and painful motion in all directions.  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 C&P examination.  It was determined to be more probative for rating than the NARSUM examination as it was more proximate to separation and of the thoracolumbar spine.  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 that condition.  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 adjudication for the back condition.  

Depressive Disorder.  The panel then considered the depressive disorder.  It was not profiled or specifically addressed by the commander.  It was not addressed by the MEB.  The NARSUM listed it among the “Other Diagnosis” present at separation.  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 the preponderance of evidence supported a finding that it was not separately unfitting at separation and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the low back pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended associated depressive disorder condition, the panel unanimously agrees that it cannot recommend it for additional disability rating as a separately unfitting condition.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends 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 20161104, w/attachments
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-2016-01715.

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