RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxxxxx	CASE:  PD-2017-02143
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20080707

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an Air National Guard E5, Security Forces, medically separated for “low back pain” with a disability rating of 10%. 

CI CONTENTION:  In addition to the unfitting back condition, the CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 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 - 20080409	VARD - 20081114	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5243	10%	Lumbar Spondylosis	5239-5243	40%	20081030	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI experienced an atraumatic onset of low back pain in 2003.  Imaging showed degenerative disc disease at L4/5 and L5/S1 without neural compromise.  Multiple neurological examinations were normal and the CI underwent serial radiofrequency ablation procedures without lasting success.  There were two interspersed VA Compensation and Pension (C&P) examinations; however, with conflicting ROM evidence.  A C&P examination of 13 March 2007 documented thoracolumbar flexion to 60 degrees (normal 90) and combined ROM of 200 degrees (normal 240); while an 18 July 2007 C&P examination documented flexion of 45 degrees and combined ROM of 165 degrees.  There were multiple STR entries that documented normal gait and spinal contour, but only one notation of an antalgic gait (not correlated with spasm or guarding).  There was no STR documentation of incapacitating episodes.

The 8 December 2007 MEB NARSUM examination, 7 months prior to separation, documented nonspecific low back pain that prohibited running, lifting and prolonged sitting or standing.  The physical examination recorded a normal gait without note of abnormal spinal contour, spasm or tenderness.  Measured ROM was flexion to 80 degrees and combined ROM of 170 degrees.  At the 30 October 2008 VA compensation and pension (C&P) examination, 4 months after separation, the CI reported constant back pain with subjective weakness that limited prolonged walking, sitting or standing.  The examiner specified the absence of intervertebral disc syndrome (IVDS) or incapacitating episodes.  The physical examination recorded a “moderately antalgic” gait and normal spinal contour, but no spasm, tenderness or abnormal neurological findings.  Measured ROM was flexion to 35 degrees and combined ROM of 140 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (IVDS).  The VA rated the back condition 40%, dual coded 5239-5243 (spondylolisthesis - IVDS).  The panel considered the disparate ROM evidence and noted the STR consistently indicated much better ROM than the VA evidence.  The STR evidence (specifically the NARSUM ROM) was consistent with VASRD §4.71a spine criteria for a 10% rating, whereas the VA evidence (specifically the post-separation C&P ROM) was consistent with criteria for a 20% rating.  There was no ROM or other spine evidence that would support any VASRD criterion for the VA’s 40% rating proximate to separation.  Ultimately panel consensus was that reasonable doubt favored assignment of determinant probative value to the VA ROM evidence because the NARSUM reflected lumbosacral ROM testing instead of thoracolumbar as required by the VASRD.  The post-separation C&P ROM was also corroborated by two pre-separation C&P examinations that were consistent with the same rating, and all provided goniometric measurements compliant with VASRD §4.46 (accurate measurement).  The post-separation C&P was also somewhat temporally closer to separation than the NARSUM.  

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 post-separation VA C&P examination.  There was no documentation of incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all the evidence and conceding VASRD §4.3 (reasonable doubt), the panel’s consensus recommendation is a 20% rating for the back condition under code 5242 (degenerative arthritis of the spine).

BOARD FINDINGS:  In the matter of the back condition, the panel majority recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  The single voter for dissent recommends no change and does not elect to submit a minority opinion.  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	
Degenerative Disc Disease, Lumbar Spine	5242	20% 	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170224, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

 

Dear XXXXXXXXXXX:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-02143.

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 in accordance with 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 the 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,

Attachments:
1.  Directive 
2.  Record of Proceedings