RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02330
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20070108

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

CI CONTENTION:  He should have been rated for his mental health condition.  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 - 20061121	VARD - 20070410	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain 	5243	10%	Lumbosacral Strain	5237	0%	20070328	
Depression	Cat II	No VA Placement	
COMBINED RATING:  10%  	COMBINED RATING OF ALL VA CONDITIONS:  0%  	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began without trauma in January 2005 after being deployed to Iraq.  An MRI showed an L5-S1 left sided disc bulge minimally compressing the thecal sac of the spinal nerves, but there was no surgical procedure that would help him.  The 7 November 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of chronic 2/10 back pain with radiation down his left sciatic nerve.  Physical examination showed lower back tenderness.  Range of motion (ROM) was limited in extension, extreme flexion, left side bending and rotation to the left secondary to pain.  Straight leg raise test was positive bilaterally.  The physical therapy ROM examination of the back on 8 November 2006, showed active flexion to 80 degrees (normal 90) and combined ROM of 210 degrees (normal 240) with pain on extension.  

At the 28 March 2007 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported recurrent back pain with prolonged standing or strenuous chores with occasional radiation to his left lower leg.  Physical examination showed a normal posture and gait with no paraspinal spasm.  Straight leg raise test was negative bilaterally.  Reflexes were normal.  The ROM study showed flexion of 90 degrees and combined ROM of 240 degrees.  He did not complain of pain with active movement and did not complain of pain, weakness, fatigability or lack of endurance with repetitive movement.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome (IVDS)).  The VA rated the back condition 0%, coded 5237 (lumbosacral strain), based on the C&P examination, citing full ROM without pain.  The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion greater than 60 degrees but not greater than 85 degrees, as reported on the NARSUM examination proximate to separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  The panel considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to IVDS.  Although the CI had IVDS, there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  The panel also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain treated conservatively and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal gait.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore, the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The panel therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

Contended PEB Condition:  Depression.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement or judged to fail retention standards.  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 there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended depression condition, the panel agrees it cannot recommend it for additional disability rating.  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 20170302, 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 XXXXXXXXXXXXXXXXXX:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-02330.

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.  Accordingly, the Board recommended no re-characterization or modification of your separation.

I have 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.  Accordingly, I accept their recommendation that your application be denied.

						Sincerely,

								XXXXXXXXXXXXXXXXXX
								Director
								Air Force Review Boards Agency

Attachment:
Record of Proceedings