RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2019-00378
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20050425

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Air Traffic Control Journeyman, medically separated for “degenerative disk disease [DDD] L5-S1” with a disability rating of 10%.  

CI CONTENTION:  In addition to contending for a 40% rating for his back, the CI also requested review of other conditions not identified by the Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB).  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 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 - 20050308	VARD - 20051215	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DDD L5-S1	5243	20%	Herniated Nucleus Pulposus	5010-5243	40%	20050929	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Back Condition.  According to the service treatment record and MEB narrative summary (NARSUM), the CI injured his back in January 2003 after falling while riding in an elevator.  A lumbar MRI showed a disc bulge at L4-L5 without nerve root compression, and loss of disc space at L5-S1 without encroachment of the thecal sac or neuroforaminal.  The MEB NARSUM examination, 8 months prior to separation, noted complaints of low back pain that radiated down the right leg.  Physical examination showed decreased sensation at the dorsum of the right foot and a moderate antalgic gait.  At the 2 December 2004 physical therapy examination, 4 months prior to separation, the examiner used the non-VASRD-compliant Schὄber method to determine range of motion (ROM), which showed flexion of 1.5 cm and extension of 0.5 cm.  The examiner noted the measurements for flexion and extension were below the normative data based on the CI’s age.  Normative for the CI were flexion of 7.48 +/-0.82 cm and extension of 5.05 +/- 1.41cm.     

At the 29 September 2005 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported severe radiating low back pain that limited walking to 100 yards and required a cane to assist in walking.  Physical examination showed an antalgic gait.  The ROM study showed flexion of 30 degrees (normal 90) and combined ROM of 80 degrees (normal 240) with pain and fatigue in all planes of motion.  

During the 9 February 2006 primary care appointment, 9 months after separation, the CI complained of chronic radiating 8/10 low back pain.  Physical examination showed a slow gait with use of a cane.  The spine was symmetric in appearance, and ROM, noted as guarded, was 75-80 degrees of flexion and extension was 5 degrees.  However, at the 13 April 2006 primary care appointment, 12 months after separation, the examiner noted tenderness of the back and guarded ROM with flexion of 20 degrees and extension noted to be “very limited.”

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 20%, coded 5243 (intervertebral disc syndrome (IVDS)).  The VA rated the back 40%, coded 5010-5243 (arthritis due to trauma – IVDS) based on the C&P examination.  Panel members agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees, as reported on the VA C&P examination.  Although the PT ROM examination was not VASRD compliant, it demonstrated a severe degree of impairment in thoracolumbar flexion that would be consistent with the 40% rating criteria.  The panel also noted two additional ROM studies within a year of separation, one of which supported a 40% rating.  There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula.  Although the CI reported radiating back pain into his right lower extremity, this pain was properly subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  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 5243.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 40%, coded 5243 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	
Degenerative Disk Disease L5-S1	5243	40%	

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

Dear XXXXXXXXXX:

		Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2019-00378.

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 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 the 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 90 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, in such a case, failure to render an election will result in automatic enrollment by law.