RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXX	CASE:  PD-2017-04207
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20050218

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Paralegal Craftsman, medically separated for “low back pain” with a disability rating of 20%.  

CI CONTENTION:  “Review all conditions.”  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 - 20041118	VARD - 20060302	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain 	5241	20%	Status Post L5-S1 Fusion	5242-5241	20%	20050621	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent L5 laminectomy with L5-S1 fusion in March 2004.  The 17 October 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of activity limiting central low back pain from the region of her surgical repair into her buttocks causing an inability to tolerate extended sitting or standing.  The CI denied lower extremity weakness or paresthesia/dysesthesias.  Physical examination showed good strength (4-5/5) and intact sensation in each leg.  Range of motion (ROM) was moderately limited in all directions.  At the time of the primary care clinic appointment on 3 May 2005, 3 months after separation, the CI reported low back pain.  On examination there was minimal tenderness.  Straight leg raise test was negative bilaterally and there was no leg pain or numbness.  Thoracolumbar spine exhibited abnormal curvature, but there was no muscle spasm.  

At the 21 June 2005 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported 7-9/10 back pain in the lumbar region of her back radiating into the buttocks with almost daily flare-ups related to being in one position too long, walking bending or twisting.  Physical examination showed a steady gait and muscle strength was normal and equal bilaterally.  Deep tendon reflexes were normal bilaterally.  On inspection of the spine, there were no abnormalities, deformities or abnormal curvatures.  There was no evidence of any tenderness or muscle spasms.  Thoracolumbar ROM showed flexion of 30 degrees (normal 90) and combined ROM of 110 degrees (normal 240) with pain.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5241 (spinal fusion).  The VA also rated the back condition 20%, coded 5242-5241 (degenerative arthritis of the spine – spinal fusion), based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine was not greater than 120 degrees.  

The panel noted the absence of numerical recording of specific ROM measurements in the STR prior to separation, and that the post-separation C&P examination was the sole document with proper recording of ROM values.  The panel agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees as reported on the C&P examination.  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 40% for the back condition, coded 5241.  

BOARD FINDINGS: In the matter of the back condition, the panel recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5241	40%	

The following documentary evidence was considered:  

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

Dear XXXXXXXXXX:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-04207.

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 your separation be re-characterized to reflect disability retirement, rather than 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 determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.