RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00966
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20050816

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Missile & Space Electrical Maintenance Journeyman, medically separated for “back pain” with a disability rating of 20%.  

CI CONTENTION:  He was rated by the VA for major depressive disorder at 50%, positive left and right straight leg lifting at 20% each, and degenerative joint disease of the right knee at 10%.  He also contended for other “military-related conditions” of toe fracture and hearing loss.  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 - 20050705	VARD - 20050921	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain	5243	20%	Grade I Anterololisthesis of Lumbosacral Spine	5237-5243	40%	20050707	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back pain began in April 2004 after a hiking incident where his wife pulled on his shoulder causing his lower back to hyperextend.  MRI in September 2004 showed a bulge at L3-4, a Grade 1 spondylolisthesis, and bilateral spondylolisthesis at L5-S1.  It also showed mild foraminal stenosis at L5-S1.  The 24 January 2005 pain management clinic examination, 7 months prior to separation, recorded complaints of worsening low back pain, rated 5/10 in severity, with exacerbations to 10/10, which caused the CI to occasionally go to the emergency room for treatment with morphine.  Physical examination recorded normal posture but an antalgic gait (affected by pain), with the CI using a cane.  Range of motion (ROM) was recorded as flexion to 30 degrees (normal 90) and extension to 10 degrees (normal 30), but no measurements were provided for the other planes of motion.  Tenderness and spasm were not addressed.  

At the time of the family practice clinic appointment on 18 May 2005, 3 months prior to separation, the non-goniometric measurements were flexion at “61 cm from 3rd digit to floor” (24 inches; normal is 90 degrees, which is approximately 0-6 inches from the floor).  Left side bend was recorded as 60 cm to the floor, and right side bend 62 cm to the floor.  The examiner noted minimal extension.

The 10 June 2005 MEB NARSUM examination, 2 months prior to separation, noted complaints of low back pain rated 7/10.  Physical examination showed an antalgic gait, assisted by a “walking stick.” Back ROM was noted as “marked decreased ROM secondary to increased discomfort with any movement.”  ROM testing the same day by physical therapy, showed flexion to 27 cm (approximately 11 inches, which is roughly equivalent to 70-80 degrees), left side bending at 65 cm (26 inches), and right side bending 70 cm (28 inches).  No other planes of motion were recorded.  

At the 7 July 2005 VA Compensation and Pension (C&P) examination, one month before separation, the CI reported severe low back pain radiating to both legs, rated 7-8/10, and treated with morphine, Vicodin, and Valium.  Physical examination showed abnormal posture and a gait with a slow and cautious walk.  The CI used a cane.  Spasm and tenderness were noted in the back, and ROM was recorded as flexion to 5 degrees with combined ROM of 20 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back pain at 20%, coded 5243 (intervertebral disc syndrome [IVDS]).  The VA rated the back 40%, coded 5237-5243 (lumbosacral strain – IVDS), based on the C&P examination, citing ROM and gait.  The panel agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees as reported on the pain management, family practice, and VA examinations.  There was no evidence of ankyloses to support the next higher rating of 50%.  There was no evidence of 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 recommends a disability rating of 40% for the back condition, coded 5243.  

BOARD FINDINGS:  In the matter of the back pain, the panel 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 the CI’s prior determination be modified as follows; and, the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Back Pain	5243	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170216, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

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

XXXXXXXXXXXXXXXXXX

Dear Applicant:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-00966.

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 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,

		

								XXXXXXXXXXXXXXXXXX
								Director
								Air Force Review Boards Agency

Attachment:
Record of Proceedings