RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01525
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20040712

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-4 (Aviation Machinist Mate) medically separated for low back pain (LBP).  The back condition could not be adequately rehabilitated to meet the physical requirements of his Rating.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The “lower back pain with radiculopathy” and “PPD, Converter” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “lower back pain with radiculopathy” as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be Category III, not separately unfitting and did not contribute to the unfitting condition.  The CI made no appeals and was medically separated.  

CI CONTENTION:  His condition continues to worsen and negatively impacts his daily activities.  His complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited 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 PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:  

IPEB - Dated 20040609	VA* - (~11 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP with Radiculopathy	5237	10%	Degenerative Disc Disease … Peripheral Neuropathy, Right Leg	5293-5292	20%	20030808	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20031114 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  The Board noted that the VA rater used the interim spine rules, which were in effect from 23 September 2002 until 25 September 2003, after determining that these provided an advantage to the CI although the current rules were in effect at the time of separation.  The older spine ratings also did not have the current general spine rating formula provision of including pain (whether or not it radiates) and did not rely on specific range-of-motion (ROM) measurements as the current rules do.  The Board utilized the current VASRD rules, which were in effect at the time of separation, in its adjudication.  

Lower Back Pain with Radiculopathy Condition.  The record shows that the CI was first seen for LBP on 15 May 2002 when he reported pain and thigh tingling after jumping during physical fitness training.  He was treated conservatively with medications and warm compresses.  His pain persisted and he was referred to physical therapy.  His examination was unremarkable other than increased symptoms at the end of the ROM maneuvers.  He remained symptomatic and was evaluated in neurosurgery.  This record is not in evidence, but a series of epidural steroid injections (ESIs) was recommended.  A pain clinic evaluation on 3 December 2002 noted limited ROM with a positive provocative test for nerve root irritation on the right (a straight leg raise [SLR]).  A right lumbar radiculopathy was diagnosed although no neurological deficit was recorded.  He was given the first ESI and had temporary benefit.  Follow up on 18 February 2003, the SLR was now negative.  An evaluation in orthopedics on 12 March 2003 noted that the CI had persistent symptoms despite treatment including injections.  The ROM was normal and pain free.  Strength and reflexes were normal.  Mild spasm was present.  A SLR was positive on the right.  He was diagnosed with a right sided radiculopathy.  On 10 June 2003, the CI was demobilized.  X-rays on 8 August 2003 showed some evidence for degenerative joint disease at L4, but the intervertebral spaces were preserved.  An MRI on 19 August 2003 showed degenerative disc disease at multiple levels without cord impingement.  Mild narrowing of the neural foramina (spaces between the vertebrae through which the nerve roots exit) was noted ln the left at L4-5 and L5-S1.  Electrodiagnostic studies (EDX) on 29 October 2003 were abnormal showing a motor and sensory neuropathy.  This was thought to be a generalized condition and a radiculopathy, which would be indicative of a back condition, was not diagnosed.  Further studies were recommended, including EDX studies of the upper extremities, and possible nerve and muscle biopsies.  

At the VA Compensation and Pension (C&P) orthopedic examination performed on 8 August 2003, 2 months after demobilization and 11 months prior to separation, the CI reported that he had jumped off of a rafter 10-12 feet onto a concrete surface.  He denied incapacitation other than for a day or two after an ESI.  His deep tendon reflex was diminished for the right ankle at 0/4 and 1/4 for the left ankle.  Sensation was normal as was his gait, muscle tone, and heel/toe walk.  His (neurological) examination was noted to be normal.  The ROM was 75 degrees for flexion (normal of 90) and the combined ROM was also reduced, but complete measurements were not recorded.  At the MEB examination on 14 September 2003, 10 months prior to separation from the reserves, the CI reported difficulty standing and sitting.  The examiner noted limited forward flexion without quantification.  The neurological examination was normal.  The narrative summary (NARSUM) was dated 19 December 2003, 7 months prior to separation from the reserves.  The CI reported that the LBP began after a fall in May 2002.  The examiner referred to the above examination.  The CI was separated effective 12 July 2004.  A second VA spine examination on 16 November 2004, 4 months after separation, recorded on-going LBP with radiation into the right leg.  He was employed as a baggage clerk for an airline, a position which required a lot of heavy lifting, a job he had held since 1999.  He reported working 3 days and then recovering for 4 days.  On examination, he was in no acute distress and had tenderness of the lower back, but no spasm.  The ROM was limited, but near normal as charted below.  Painful motion was not recorded.  There was some weakness for ankle eversion and inversion (turning out and in, respectively) and the right patellar reflex reduced at 1/4; the neurological examination was otherwise normal.  It was recommended that he seek a less physically strenuous occupation.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.
Thoracolumbar ROM
(Degrees)	VA C&P ~11 Mo. Pre-Sep	VA C&P ~4 Mo. Post-Sep	
Flexion (90 Normal)	75	80	
Combined (240)	---	145	
Comment	Painful motion not recorded	Painful motion not recorded	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the VA utilized the interim spine rules in its adjudication as these were more beneficial to the CI.  The PEB rated the CI at 10%, coded 5237 (lumbosacral strain).  A 10% rating is supported by the limitation in motion on both VA C&P examinations.  Spasm, an abnormal gait, or incapacitation was not recorded.  The Board noted that the CI did need to recover from work (loading luggage), but physician described bed rest was not recorded.  The EDX studies documented a neuropathy, but did not record a radiculopathy (secondary to the back).  The second VA examination noted weakness with ankle motion, but previous examinations had been normal.  The evidence does not support the presence of an unfitting radiculopathy at separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the LBP condition.  

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the lower back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 2013-01525, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		
MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 18 Dec 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USMC  
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USMC