RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX	CASE:  PD-2017-00894
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20051207

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Integrated Avionics Systems Instrument and Flight Command Controls Craftsman, medically separated for “status post L5-S1 laminectomy and fusion with residual left leg parasthesias and weakness” with a disability rating of 20%.  

CI CONTENTION:  He still has back pain and numbness of his left foot.  He also had a meniscal tear of his right knee prior to separation, and feels his case was rushed and information was missing.  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20051026	VARD - 20060517	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post L5-S1 Laminectomy and Fusion with Residual Left Leg Parasthesias and Weakness	8520-5241	20%	Status Post Lumbar Laminectomy and Fusion, L5-S1	5241	20%	20060327	
			Sciatica, Left Lower Extremity	8520	10%	20060327	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Status Post L5-S1 Laminectomy and Fusion with Residual Left Leg Parasthesias and Weakness.  The PEB combined the back pain and left leg weakness conditions under a single disability rating, dual coded 8520-5241 and rated 20%.  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 back and left leg conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated. 

Back Pain Status Post L5-S1 Laminectomy and Fusion.  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI underwent a left L5-S1 laminectomy with spinal fusion, excision of large herniated left L5-S1 disc, and an additional large disc fragment with partial removal of the left L5-S1 facet joint on 9 June 2005 due to a herniated disk with significant stenosis.  During the time after the operation, prior to separation, he generally refused to submit to range of motion (ROM) examinations at the advice of his neurosurgeon.  

The 22 September 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of chronic back pain.  The CI was able to walk without difficulty but sitting was still painful.  He was still wearing his back brace since he had not had a recent follow-up visit with his surgeon.  There was no physical examination of the back.  

At a 2 November 2005 physical therapy evaluation, 1 month prior to separation, the CI reported he had improved but still had low back pain.  Physical examination showed flexion and extension decreased by 50% (normal 90 and 30 degrees respectively).  Side bending and rotation to each side were all decreased by 25% (normal 30 degrees each).  There was no mention of tenderness, spasm, or spinal contours.  The physical therapist noted that the CI was not going to be able to complete the program due to an upcoming knee operation.  

At the 27 March 2006 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported back pain radiating to the left leg.  Physical examination demonstrated a normal gait.  Forward flexion was to 45 degrees (normal 90) and combined ROM was 170 degrees (normal 240) with pain noted on all movements and tenderness in the lumbar region.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the back pain condition with the left leg weakness condition and applied a single 20% rating, dual coded 8520-5241 (paralysis of the sciatic nerve – spinal fusion).  The VA rated the back pain condition 20%, coded 5241, based on the C&P examination, citing forward flexion of the spine greater than 30 degrees but not greater than 60 degrees.  

The panel first considered if the back pain condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Panel members agreed the evidence reasonably justified that the functional limitations of the back pain condition contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  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 physical therapy and VA examinations.  There was no evidence of intervertebral disc syndrome 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 separate disability rating of 20% for the back pain condition, coded 5241.  

Residual Left Leg Paresthesias and Weakness.  According to the STR and the MEB NARSUM, the CI underwent a left L5-S1 laminectomy with spinal fusion 9 June 2005 for a herniated disk as reflected above.  At separation, the paresthesias and weakness were improving but not yet resolved.  An 8 September 2005 electrodiagnostic study demonstrated S1 nerve root damage with degeneration causing weakness of muscles of the lower leg.  The neurologist noted that these findings did not represent severe nerve damage and that, in time, the CI should get the strength back.  

The 22 September 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of moderate weakness of the left leg with numbness of the sole of the left foot.  He had also developed paresthesias of the posterior left thigh and calf over the preceding three weeks.  Physical examination showed decreased sensation of the sole of the left foot, 2/4 weakness of the left foot plantar flexion and dorsiflexion with a diminished ankle jerk reflex.  

At the 27 March 2006 VA C&P examination the CI reported back pain had decreased since surgery and the urinary symptoms were resolved but he was still having radiating pain and numbness in the left leg.  Physical examination demonstrated 4/5 weakness of the left lower extremity with no evidence of muscle atrophy.  Later in the note the examiner states there was no motor loss.  Deep tendon reflexes were equal with the right leg.  There was also sensory loss in the left small toe and lateral side of the foot.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the back pain condition with the left leg weakness condition and applied a single 20% rating (coded 8520-5241).  The VA rated the left leg weakness condition 10%, coded 8520, (incomplete paralysis of the sciatic nerve), based on the C&P examination, citing wholly sensory involvement.  The panel considered if the leg weakness condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The leg weakness was considered to fail retention standards and was implicated in the NARSUM.  Since undue speculation would be required to conclude that impairment from the leg weakness would not have unacceptably interfered with duty performance, members agreed that the leg weakness was reasonably justified as separately unfitting.  The panel then considered its rating recommendation for the leg weakness based on the above evidence.  

The neurodiagnostic study showed residual neuropathy with denervation of the muscles of the lower leg after the discectomy, and all examinations proximate to separation showed a degree of muscle weakness. Examinations prior to separation showed decreased reflexes; however, there was no evidence of muscle atrophy to validate a severe incomplete paralysis.  The panel noted that VASRD §4.124a states, “When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.”  Panel members agreed that, with some degree of motor involvement, the evidence supports a moderate degree of disability for a 20% rating, coded 8520.  After due deliberation and considering all of the evidence, the panel recommends a separately unfit determination with a disability rating of 20% for the left leg weakness condition, coded 8520.  

BOARD FINDINGS:  In the matter of the status post L5-S1 laminectomy and fusion with residual left leg parasthesias and weakness condition, the panel recommends that each condition be separately adjudicated as follows: an unfitting back pain condition coded 5241 and rated 20% IAW VASRD §4.71a, and an unfitting left leg weakness condition, coded 8520 and rated 20%, IAW VASRD §4.124a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends 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  the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Status Post L5-S1 Laminectomy and Fusion	5241	20%	
Residual Left Leg Parasthesias and Weakness	8520	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-2017-00894.

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.