RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-03910
BRANCH OF SERVICE:  air force	SEPARATION DATE:  20080829

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Services Journeyman, medically separated for “low back pain status post [S/P] spinal fusion” with a disability rating of 10%.   

CI CONTENTION:  “The current rating does not include my issues with anxiety, depression, sleep apnea and kidney stones and surgeries.”  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 - 20080605	VARD - 20070523	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain S/P Spinal Fusion	5241	10%	S/P L4-5 and L5-S1 Posterior Fusion 	5241	20%	20090122	
Urolithiasis	Not Unfitting	Kidney Stones	7508	NSC	20090122	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent a lumbar fusion (L4-S1) in February 2005 (2½ years before separation).  Her pain persisted and did not respond adequately to a protracted trial of conservative treatment which included epidural steroid injections.  There was left leg radiation with intermittent sensory symptoms and findings, but all motor examinations and electrodiagnostic testing was normal.  A CT scan on 4 October 2007 demonstrated normal hardware alignment and some degenerative changes.  The majority of clinical STR entries documented grossly normal or non-specifically limited range of motion (ROM), albeit with painful motion, but no suggestion of significantly severe ROM limitation.  There was ample documentation of a normal gait and no indication of an abnormal spinal contour.

The 21 February 2008 MEB NARSUM examination, 6 months prior to separation, noted CI complaints of constant pain, rated at 7/10, that was “worse with exercise or prolonged periods of sitting or standing.”  Physical examination recorded spinal tenderness and a “straight” back without note of spasm or guarding.  A normal gait and neurological findings were referenced from a recent consultation, and ROM measurements conducted for the MEB by physical therapy (PT) a month later on 17 March 2008, showed flexion to 90 degrees (normal) and a combined ROM of 155 degrees (normal 240), specifying painful motion in all planes.  
  
At the 22 January 2009 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported “progressively worse” back pain rendering her “unable to walk more than a few yards.”  Physical examination revealed a normal gait and spinal contour, and no tenderness, guarding, spasm, or neurological deficits.  Measured ROM showed flexion to 60 degrees and a combined ROM of 130 degrees, with no objective evidence of pain with active or repetitive motion.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the lumbar spine condition 10%, coded 5241 (spinal fusion), without elaboration of applied evidence or rating criteria.  The VA rated the condition 20% under the same code, based on the C&P examination and citing the applicable VASRD §4.71a spine criterion of flexion greater than 30 degrees but not greater than 60 degrees.  Panel members noted that the MEB PT and VA C&P ROM examinations were equally proximate to separation.  While the C&P flexion measurements met the 20% threshold, they were not well correlated with the absence of painful motion, tenderness, spasm or other associated findings documented at the same time.     However, the MEB PT examination was amply corroborated by other STR evidence and was more consistent with the associated physical findings, especially the consistent absence of spasm.  Thus the panel placed more probative value on this examination, and agreed that a 10% rating, but no higher, was justified for painful motion and combined ROM (greater than 120 degrees but not greater than 235 degrees).  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.  After due deliberation, considering all 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 lumbar spine condition.  

Contended PEB Conditions:  Urolithiasis.  The panel’s main charge is to assess the fairness of the PEB’s determination that the condition was not unfitting.  The condition was never profiled and was not implicated in the commander’s performance statement.    There was no performance-based evidence from the record that it significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for urolithiasis and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

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

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Dear XXXXXXXXXX:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-03910.

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.