RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXX	CASE:  PD-2017-03980
BRANCH OF SERVICE:  Air Force	SEPARATION DATE:  20091228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty O3, Clinical Nurse, medically separated for “low back pain status post L4-5 disc replacement” with a disability rating of 10%.   

CI CONTENTION:  Review requested of the back condition as well as additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) was 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 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’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 - 20091001	VARD – 20100728	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain… 	5243	10%	Degenerative Disc Disease of the Thoracolumbar Spine Status Post Disc Replacement L4-L5 with Facet Syndrome	5243	20%	20100607	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent back surgery with retroperitoneal exposure and anterior L4/L5 total disc replacement on 29 October 2008.  During post-surgical follow-up on 1 December 2008, the CI reported good initial response to surgery with resolution of right lower extremity pain and discomfort.  However, she was experiencing intense left-sided spine, hip and thigh pain which was new and differed from pre-operative pain.  On 4 December 2008, MRI studies showed cysts or seromas adjacent to the L4/L5 space.  At the 5 February 2009 neurosurgery appointment, she reported pain, rated at 3/10, and mostly on the left flank above the pelvis, as well as occasional right foot weakness.  Thoracolumbar spine range of motion (ROM) showed flexion to 75 degrees (90 normal) with pain, “abnormal” extension, and “normal” lateral left and right flexion; facet injections were recommended.  At the 26 February 2009 physical therapy (PT) visit, 10 months prior to separation, the examiner noted decreased lumbar lordosis, left hip flexor tenderness, and normal, but painful “trunk” flexion.  An MRI on 6 April 2009 revealed that the previously observed paravertebral cysts or seromas had resolved.  The 17 April 2009 neurosurgery follow-up recorded flexion of 10 degrees with painful motion and back tenderness.  

The 14 May 2009 MEB NARSUM examination, 7 months before separation, noted CI complaints of continued LBP and frequent low back and leg muscle spasms aggravated by standing, bending and twisting motions.  Physical examination showed the left leg was warmer than the right, and sensory symptoms such as tingling and numbness, were also worse on the left.  Gait was noted as normal, but deliberate, and straight leg raise testing was negative.  The examiner recorded “strength limited r/t [related to] pain, thoracolumbar spine flexion and extension is abnormal, limited to about 10 degrees with increase in pain,” and diagnosed lumbago.  

At the 2 July 2009 pain clinic visit, the CI reported temporary relief with facet blocks, and that while the leg pain was better, the back pain was worse.  On examination, ROM was decreased with painful flexion to 45 degrees and slight paraspinal muscle tenderness.  At the 25 August 2009 follow-up, flexion, extension axial rotation and lateral flexion were noted to be normal, with slightly tender bilateral paraspinal muscles.  

Thoracolumbar ROM measurements performed by PT on 17 August 2009, 4 months prior to separation, showed flexion of 90 degrees and combined ROM of 230 degrees (normal 240) after repetition and associated with painful motion.  At the 14 September 2009 neurosurgery appointment, the CI reported improvement (50% better) with facet injections, and no longer having sharp shooting pains down her legs.  Multiple treatment notes from pain medicine (September and October 2009), 2-3 months prior to separation, noted no spasms.  Paraspinal muscles were tender but flexion, extension, axial rotation and lateral flexion were normal.  On 22 September and 6 October 2009, the CI underwent radiofrequency ablation (RFA) of lumbar facets at two levels for back pain.  

At the 7 June 2010 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported constant daily LBP, rated at 7/10, and worsened by activity.  She also reported flare-ups, rated at 10/10, about 3 times a week when she was “was on the couch with a heating pad.”  Despite the RFA procedures and good initial results, she reported progressively worsening LBP.   Physical examination showed a slightly antalgic gait and tenderness at L4/L5 with guarding, but no spasms.  Thoracolumbar ROM measurements showed flexion of 45 degrees and combined ROM of 145 degrees, with painful motion.  There was no further decrease in ROM with repetition, and muscle strength was normal.  

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).  The VA rated the back condition 20%, also coded 5243, based on the C&P examination, citing thoracolumbar forward flexion spine greater than 30 degrees but not greater than 60 degrees.  Panel members noted that ROM measurements recorded at the neurosurgery and NARSUM examinations met the 40% threshold, while pain medicine ROMs met criteria for a 20% rating, and the PT MEB ROM measurements warranted a 10%.  However, the CI was still engaged in interventional treatment of injections and RFA treatments which showed temporary ROM improvements and worsening of the post-separation C&P ROMs, which again met the threshold for a 20% rating.  In assigning probative value to these somewhat conflicting examinations, the panel considered the entirety of the record and timing of the CI’s complaints and interventional treatments.  The panel consensus was that the pain medicine and VA examinations bracketed improved ROM measurements likely due to acute treatments, and they most represented the CI’s disability picture at separation, and thus carried the highest probative value for rating.  The panel consensus was that a 20% rating, but no higher, was justified for limitation of flexion.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the low back condition, coded 5243.  

BOARD FINDINGS:  In the matter of the low back condition, the panel majority recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  The single voter for dissent recommends no change and did not elect to submit a minority opinion.  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	
Chronic Low Back Pain Status Post L4-5 Disc Replacement	5243	20%	

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

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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-2017-03980.

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 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 their 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.