RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01776
BRANCH OF SERVICE:  nAVY	BOARD DATE:  20140613
SEPARATION DATE:  20051031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Reserve AME2/E-5 (Aviation Structural Mechanic) medically separated for low back pain (LBP) with a herniated disk.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  Displacement of lumbar intervertebral disc without myelopathy, characterized as not meeting retention standards, was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated LBP with herniated disc as unfitting rated 20%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB (FPEB), but later accepted the IPEB findings and withdrew his demand for a FPEB.  The CI was medically separated.

CI CONTENTION:  “Rated 90% disability rating with a permanent 100% disability evaluation for my service connected disabilities, because I am unable to work.  Also a 100% disability rating from social security,”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting back condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The conditions which were later service-connected by the VA (posttraumatic stress disorder, right shoulder and erectile dysfunction) were not identified by the PEB and thus are not within the DoDI 6040.44 defined purview of the Board.  Any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20050822	VA* - (~6 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back with Herniated Disc	5237	20%	Intervertebral Disc Syndrome, Lumbar Spine	5243	20%	20060424	
			Left Sciatic Nerve Deficit Associated with Intervertebral Disc Syndrome	8520	10%	20060424	
Other x 0 (Not in Scope)	Other x 0	20060424	
Rating:  20%	Combined:  30%	
* Derived from VA Rating Decision (VARD) dated 20060724 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  

Low Back with Herniated Disc:  Service treatment records (STR) show the CI developed LBP after carrying an inflatable raft and lifting a tow bar in the 1999.  A magnetic resonance imaging (MRI) study was conducted in August 2001 finding mild central canal stenosis and lower back discs without nerve compression.  The condition progressed despite nonsurgical treatment with development of intermittent numbness in the lower legs.  An MRI study obtained in May 2003, revealed bulging discs in the lower back.  From that time to the narrative summary (NARSUM) in June 2005, the CI was examined on multiple occasions.  On these examinations range-of-motion (ROM), flexion of the back (normal: 90 degrees) was generally reduced (65 degrees, flexion to 12 inches from floor) but motor, sensory and reflex exams were normal.  At the MEB/ NARSUM evaluation on 22 June 2005, 4 months prior to separation, the CI reported back pain with motion and constant numbness in in both legs, left greater than right.  The MEB physical exam noted a normal gait.  Flexion of the back was described as “limited” with the CI able to forward flex to within 8 inches of the floor.  Reflex and neurovascular exams were normal.  The VARD, performed on 24 July 2006, quoted data from the C&P exam in its rating discussions.  The data quoted: antalgic gait with normal spine curvature, flexion of 40 degrees limited by pain without back spasm and no reported episodes of incapacitation in the prior 12-month period.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, code 5237 and (lumbosacral strain).  The VA rated the condition 20%, code 5243, (intervertebral disc syndrome), citing flexion of 40 degrees with pain.  Under both codes IAW § 4.71a, a rating of 20 %, requires flexion of the lumbosacral spine greater than 30 degrees, but not greater than 60 degrees.  The next higher rating, 40%, requires flexion of the lumbar spine of 30 degrees or less.  The VA adjudicated an additional 10% rating, code 8520 (incomplete paralysis, sciatic nerve-mild), IAW §4.124, citing sensory defects in the left lower leg.  The Board unanimously agreed that the evidence in the STR supported a rating of 20%, but no higher, for decreased range of motion of the lumbosacral spine IAW §4.71a.  The Board considered a rating IAW §4.124 (neuralgia, peripheral nerve).  The Board agreed there was no evidence for ratable peripheral nerve impairment in this case, since the preponderance of evidence in record showed that no motor weakness was present and sensory symptoms had no functional implication.  The Board considered a rating under code 5243, incapacitating episodes/intervertebral disc syndrome.  An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed and treated by a physician.  The record documents no incapacitation under this definition in the 12 month period prior to the MEB examination.  The Board agreed that no rating could be recommended under this code.  The Board found no other appropriate codes for consideration.  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 back 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 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 recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131022, 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 20 Jan 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:

-	XXXXXXXXXXXXXXX, XXX XX XXXX, former USN
-	XXXXXXXXXXXXXXX, XXX XX XXXX, former USMC
-	XXXXXXXXXXXXXXX, XXX XX XXXX, former USN
-	XXXXXXXXXXXXXXX, XXX XX XXXX, former USMC
-	XXXXXXXXXXXXXXX, XXX XX XXXX, former USN
-	XXXXXXXXXXXXXXX, XXX XX XXXX, former USN