RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-03449
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20020712

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Aerospace Ground Equipment Craftsman, medically separated for “degenerative disk disease [DDD] associated with herniated nucleus pulposus at L4-5 and L4-S1” with a disability rating of 10%.  

CI CONTENTION:  Review of all conditions requested.  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 - 20020523	VARD - 20030322	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DDD associated with Herniated Nucleus Pulposus at L4-5 and L4-S1	5293	10%	Herniated Nucleus Pulposus, Lumbar Spine	5293	10%	20021105	
Tobacco Abuse	Cat III	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

DDD associated with Herniated Nucleus Pulposus at L4-5 and L4-S1.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in May 1994 while lifting on the job.  He had an exacerbation in 1996 at which time X-rays were normal.  X-rays of the lumbar spine dated 28 July 2000 showed no radiographic abnormalities.  An MRI in September 2000 showed multilevel degenerative changes from L3-S2, most significantly affecting the right S1 nerve root, but without evidence of direct nerve root impingement in the neural foramina or on the thecal sac.  In January 2001, the CI was treated with an epidural steroid injection for low back pain (LBP) and radiculopathy of L5-S1.  He also underwent physical therapy, which helped a little.  X-rays of the lumbar spine in February 2002 were normal.  He was seen again later that month with the complaint of right-sided back, buttock, and leg pain.  An MRI in March 2002, ordered for back pain and left leg radicular symptoms, showed multilevel lower lumbar spine DDD.  The discs appeared to have a right paracentral predominance and not to correlate with the radicular symptoms, although the left exiting nerve root foramina (where nerves pass through the vertebral column) at L5-S1 was minimally effaced.  Muscle relaxers and nonsteroidal anti-inflammatory drugs (NSAIDs) were not useful in ameliorating his pain.  

The 18 April 2002 MEB NARSUM examination, 3 months prior to separation, noted complaints of LBP that impaired his work because he had to be cautious and take more time than his colleagues when picking up heavier objects or pushing equipment around.  He was only using NSAIDs at the time.  Physical examination showed gait and coordination were normal and Romberg’s sign (to determine balance) was absent.  There was some tenderness of the lumbar spine in the midline and a very small step at the L4/L5 level.  Deep tendon reflexes of the knees and ankles were normal as was sphincter function.  The commander’s statement dated 17 May 2002 indicated the CI was reassigned from the field he had worked in for 10 years to an administrative position in the logistics group due to his profile restrictions, which also eliminated the possibility of deployment with the unit. 

At the 5 November 2002 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported LBP, herniated discs of L5-S1 and L4-L5, and multilevel DJD of the lower back.  Current treatment consisted of an NSAID (indomethacin), home exercise, and Neurontin (gabapentin for nerve pain).  Physical examination showed the lumbar spine had a normal curvature without pronouncement of posterior vertebral bodies.  T8-L2 demonstrated a slight curvature with deflexion (turning away) to the right in a scoliotic fashion.  There was no tenderness over the vertebral processes; however, there was moderate bilateral sacroiliac notch tenderness.  Range of motion (ROM) was intact with 110 degrees of flexion (thoracolumbar normal 90); rotational and lateral motion was at 45 degrees (normal 30).  There was a slight deficit in extension at 20 degrees (normal 30).  Deep tendon reflexes were intact and straight leg raise elicited pain on the right hip.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the DDD associated with herniated nucleus pulposus at L4-5 and L4-S1 10%, coded 5293 (intervertebral disc syndrome [IVDS]).  The VA based the rating on the C&P examination, citing painful motion.  In accordance with DoDI 6040.44, the panel is required to recommend a rating IAW the VASRD in effect at the time of separation. The panel noted that the 2002 Veteran Administration Schedule for Rating Disabilities (VASRD) standards for the spine in effect at the time of separation were changed to the current §4.71a rating standards in 2004.  The panel must correlate the above clinical data with the 2002 rating schedule; applicable diagnostic codes include:  5292 (limitation of lumbar spine motion); 5293 (IVDS); and 5295 (lumbosacral strain).  

Both the PEB and the VA used code 5293 and rated 10% for a mild disability based on confirmed MRI findings of multilevel disc disease.  All of the Service and VA evidence depicted the back condition as chronic and stable.  There were daily pain and activity limitations, but there was no evidence of ‘recurring attacks’ (as defined by 5293), which were disruptive to daily activities, required urgent medical attention, or resulted in work loss.  The panel majority, therefore, could not find evidentiary justification for recommending a rating higher than 10% under the 5293 code.  A 20% rating which requires a moderate disability with recurring attacks was considered, but does not fit the pattern that the CI exhibited over the years as well as the condition proximate to separation since his radicular symptoms were on the contralateral side of the disc herniations and his ROMs at the VA examination were within normal limits.  Furthermore, the CI reported he could do most things, although slower, and although surgery was discussed as a consideration, he was only taking NSAIDs for relief.  The panel considered alternative codes including 5292 (lumbar spine limitation of motion), 5291 (dorsal spine limitation of motion), 5294 (sacroiliac injury and weakness), 5295 (lumbosacral strain), and 5285 (vertebra, fracture of, residuals), but none offered options for a higher rating than 10%.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority concluded there was insufficient cause to recommend a change in the PEB adjudication for the DDD associated with herniated nucleus pulposus at L4-5 and L4-S1.  

Contended PEB Condition:  Tobacco Abuse.  Tobacco abuse is not a condition that constitutes a physical disability IAW DoDI 1332.38.  Therefore, the panel has no basis for recommending it as unfitting.  

BOARD FINDINGS:  In the matter of the degenerative disk disease associated with herniated nucleus pulposus at L4-5 and L4-S1 and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended tobacco abuse 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.  

SAF/MRB
3351 Celmers Lane
JBA NAF Washington, MD 20762-6435

XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX

Dear XXXXXXXXXX:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-03449.

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.

						 

Minority Opinion.  The panel minority voter noted that the old spine rules were in effect at the time of separation and both the PEB and VA used code 5293 and rated 10% for a mild disability based on confirmed MRI findings of multilevel disc disease.  A 20% rating, which requires a moderate disability with recurring attacks, fits the pattern that the CI exhibited over the years as well as proximate to separation.  Additionally, the CI’s complaints, multiple clinic visits, clinical findings, and limitations were clearly in concert with the MRI findings proximate to separation. Furthermore, he had a revised temporary L4 profile that precluded heavy lifting and prolonged sitting, standing or running.  Additionally, he could not deploy, and as a result of the limitations for low back pain, he was recommended for separation since even if he were reassigned to a different AF specialty, he would not be able to lift more than 20 pounds.  A 40% rating using code 5293 requires “severe; recurring attacks, with intermittent relief.”  However, the CI’s radicular symptoms were on the contralateral side of the disc herniations and his ROMs at the VA examination were within normal limits.  

Although he reported only taking NSAIDs for relief, surgery was discussed as a consideration and at the VA examination he reported taking indomethacin, a potent NSAID and Neurontin for nerve pain.  Therefore, based on the CI’s recurrent bouts of low back pain and his inability to perform the duties of his AFSC, a 20% rating is both reasonable and appropriate.  Alternative codes including 5292 (lumbar spine limitation of motion), 5291 (dorsal spine limitation of motion), 5294 (sacroiliac injury and weakness), 5295 (lumbosacral strain), and 5285 (vertebra, fracture of, residuals), do not offer rating options for a higher rating than 20%.

Therefore, the minority voter recommends the ROP be modified as follows.

BOARD FINDINGS:  In the matter of the degenerative disk disease associated with herniated nucleus pulposus at L4-5 and L4-S1, the panel recommends a disability rating of 20%, coded 5293 IAW VASRD §4.71a.  In the matter of the contended tobacco abuse 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.  

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Degenerative Disk Disease Associated with Herniated Nucleus Pulposus at L4-5 and L4-S1	5293	20%