RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05460
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20090729

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, In-Flight Refueling Journeyman, medically separated for “chronic low back pain (LBP) status post (S/P) L5-S1 fusion” with a disability rating of 0%.  

CI CONTENTION:  No specific contention was made.  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 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 - 20090505	VARD - 20090928	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP  S/P L5-S1 Fusion	5243	0%	S/P Lumbar Spine Surgical Disc and Fusion Procedure	5241	10%	20090515	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic LBP S/P L5-S1 Fusion.  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI’s long-standing LBP was aggravated in mid-2007 after heavy lifting.  His clinical work-up identified herniated spinal discs and on 1 December 2007 he underwent a lumbar spinal fusion.    The 15 January 2009 MEB NARSUM examination, 6 months prior to separation, noted complaints of continued LBP. The physical examination (PE) revealed that the CI had “full range of motion (ROM) in all major joints.  Strength testing was normal and there was no lumbar tenderness.”  At the 1 June 2009 VA Compensation and Pension (C&P) examination, 2 months prior to separation, the CI endorsed LBP that adversely affected his ability to exercise.  His PE revealed tenderness and spasm about the low spine.  Thoracolumbar ROM was painful and measured forward flexion to 65 degrees (normal 90) and a combined range to 200 degrees (normal 240).  Peripheral motor activity was normal.  Although unidentified in the STR as to which lower extremity was involved, the provider documented the following.  “[The CI’s] sensation was decreased for his heel and intact for the other dermatomes…to light touch.”

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 0%, coded 5243 (intervertebral disc syndrome [{IVDS]), citing “good ROM of the spine without tenderness.”  The VA rated the back condition 10%, coded 5241 (spinal fusion), based on the C&P examination citing “status-post lumbar spine surgical disc and fusion procedure with forward flexion of 65 degrees.” 

All panel members agreed that the VA examination held the greatest probative value being nearest to the time of separation and clearly its individual and combined ROM findings supported a maximum 10% impairment rating.  Although muscle spasms were noted on the VA examination, they were not associated with the presence of an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  Additionally, there was no documentation of IVDS with incapacitating episodes which would provide for a higher rating or evidence of a ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the LBP condition.

BOARD FINDINGS:  In the matter of the low back condition, the panel recommends a disability rating of 10%, 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, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain S/P L5-S1 Fusion	5241	10%	

SAF/MRB

Dear XXXXXXXXXXXXX:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2017-05460.

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 in accordance with 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 the 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.