RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00083
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150317
SEPARATION DATE:  20060218

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Machinist Mate) medically separated for persistent low back pain (LBP). The 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 (LIMDU) and referred for a Medical Evaluation Board (MEB).  The persistent LBP, scoliosis/kyphosis, and multiple degenerative changes and sacralization/transitional vertebrae lumbar spine conditions, characterized as “lumbago” and was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “persistent low back pain, scoliosis/kyphosis, and multiple degenerative changes and sacralization/transitional vertebrae lumbar” as unfitting, rated 40% with an existed prior to service (EPTS) deduction of 20% for a final rating of 20%.  An additional condition (left anterior cruciate ligament [ACL] reconstruction) was adjudicated and determined to be Category III (not separately unfitting and do not contribute to the unfitting condition).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I had two knee surgeries and back disc issues due to active duty.  To this day I have complications, which were the same as when I was on active duty.”  Additionally, “Remarks Section” stated “I am getting service connected disability rating of 80% permanent and 100% unemployable.”

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 Veterans Affairs Schedule for Rating Disabilities (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 20060106	VA - (<2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Persistent Low Back Pain Possibly Due To Muscle Spasm 	5237	40%*	Lumbar/Thoracic Degenerative Disc Disease	5242	20%	20060407	
Scoliosis/Kyphosis Noted in Childhood Treated with Brace	EPTS					
Multiple Degenerative Changes and Sacralization/Transitional Vertebrae Lumbar Spine	EPTS					
Left ACL Reconstruction	CAT III	Left Knee ACL Re-construction and Medial Meniscus Reconstruction	5259	10%	20060407	
Other x 0 (Not in Scope)	Other x 3 (Not in Scope)	
Combined:  20%
*EPTS Reduction by 20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20081219 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Persistent Low Back Pain, Scoliosis/Kyphosis, and Multiple Degenerative Changes and Sacralization/Transitional Vertebrae Lumbar Spine Condition.  The narrative summary (NARSUM) and service treatment record (STR) noted onset of back pain soon after the CI received spinal anesthesia (for knee surgery).  Spinal anesthesia was administered through a lumbar spine puncture (L3-L4).  The CI was initially seen in the emergency department and had pain with movement and bearing down for bowel movements.  Neurology consult in September 2005 documented a “significantly antalgic gait,” lumbar tenderness and spasm with normal motor and sensory exams.  Imaging found no evidence of blood leakage or infection in the area of the epidural puncture.  Exam history stated:  “history of scoliosis as a child for which he wore a brace for about one year when he was 15 years old.”  The CI’s back pain persisted on muscle relaxants, anti-inflammatories, Valium, and narcotic pain medication and the CI was given 14 days of convalescent leave.  Continued treatment with physical therapy and addition of Gabapentin to his medications (used to relieve neuropathic pain) did not relieve his symptoms.

At the NARSUM exam (dated 6 December 2005), the CI reported continuing LBP and “not getting any relief from medications including gabapentin, Percocet and Valium.”  Range-of-motion (ROM) documented forward flexion of 10 degrees (normal 90), extension of 5 degrees (normal 30) and side-to-side bending to 10 degrees (normal 30) with all movements increasing his pain.  There was spine tenderness without spasm or deformities and the examiner stated “he walks with a deliberate antalgic-type posture.”  Non-physiologic findings of pain with light palpation, pain with full body rotation, and pain with cervical compression were noted.  Straight leg raising reproduced back pain without radicular pain.  Motor strength was normal and reflexes were symmetric and normal at the knee and ankle.  He had 2-3 beats of clonus (abnormal) bilaterally.  Assessment stated “he does have 4/4 Wadell signs.”  The MEB physical exam (DD Form 2808, dated 22 December 2005) documented “moderate bilateral lumbar spasm, neuro is normal.”

Various lumbar and thoracic magnetic resonance imaging (MRI) exams performed in September 2005 documented low grade multilevel degenerative spine disease, small disk herniations at L4-5 and T11-12, and mild narrowing of the vertebral canal.  An MRI “suggests that L5 is sacralized, or there is a transitional vertebral body” (congenital variant of the juncture between the last lumbar vertebra and the sacrum).  Lumbosacral X-rays performed in December 2005 were interpreted as a normal study with intact sacroiliac joints.

The entry physical dated 20 August 2003 noted no history of back problems and documented a normal spine and musculoskeletal exam, no spine-related symptoms, and no significant defects or diagnoses.  At the VA Compensation and Pension (C&P) exam performed 2 months after separation, the CI reported chronic constant LBP with good days of 4/10 pain and bad days at 10/10.  Heat, rest and pain medications helped and there was exacerbation with bending, lifting pulling and twisting.  The CI had a back brace.  Gait and stance were normal.  ROM testing documented painful motion with stated separate thoracic and lumbar ROMs.  Thoracic forward flexion was 0-90 degrees with backward extension 0-30 degrees.  Lumbar forward flexion was 0-60 degrees with backward extension of 0-30 degrees.  There was no change in ROM following repetition and no muscle spasm.  The CI had increased lumbar pain when he stood on his toes.  Lower extremity motor, sensory and reflex exams were normal.

The record contained part of an evaluation for leg numbness and urinary incontinence 10 months following separation.  Two years after separation, VA records of appeal for the back rating indicated worsening back pain with use of narcotic pain medication including methadone, two incapacitating episodes, guarding and forward flexion limited to 25 degrees and symptoms of leg numbness and sensory loss.  The VA awarded a 40% rating effective the date of the CI’s appeal in August 2008.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB 20% final back rating was based on a 40% rating of the STR and a 20% deduction for the condition being EPTS.  This appears to be likely application of DODI 1332.39 (rescinded) in effect at the time for estimating the contribution of any pre-existing disability or progression.  The transitional vertebra and childhood treatment for scoliosis/kyphosis were creditable and would make an individual more prone to developing back problems; however, rating under the VASRD requires any rating deduction to be from a prior ratable exam.  In this case, the normal service entry exam would be either not ratable or ratable at 0% IAW VASRD §4.71a, the maximum 0% rating percentage that may be deducted.

The Board deliberated if the NARSUM examiner’s comments concerning non-physiologic findings and the VA after separation exam also being proximate to separation made that VA exam of higher probative value for rating at separation.  The specifics of the NARSUM exam and VA exam were weighed as well as the CI’s functional impairment and evidence of good and bad days to best adjudge the CI’s disability picture at the date of separation.  The Board agreed that the single after separation VA exam in the record that would be rated at 20% was insufficient to overcome reasonable doubt that the CI’s disability picture at separation warranted a 40% rating for forward flexion of the thoracolumbar spine 30 degrees or less including a deduction of “undeterminable” or 0% for EPTS.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the LBP condition.

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the left knee (left ACL reconstruction) condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The CI had two left knee surgeries including ACL repair and meniscal repair with the last in-service knee surgery in September 2005.  At the NARSUM physical he had minimal complaints of his knee including no catching or locking.  MEB exam indicated “left knee ACL repair is good.”  NARSUM exam stated “knee motion does not cause pain” and gait was antalgic (see above back condition).

The VA C&P exam within 2 months of separation documented continued complaints of left knee pain with activity.  There were no symptoms of locking or instability.  There was painful ROM with flexion of 120 degrees (normal 140) extension to 0 degrees (normal).  Testing for laxity and instability was negative with tenderness on Lachman’s testing.  Records indicated that the CI had increased symptoms remote from separation with abnormal imaging of the meniscus and surgical repair over 18 months after separation.

The left knee condition was not included in any LIMDU.  The non-medical assessment statement did not indicate a specific medical condition, but noted that the CI was “physically unable to perform basic tasks, such as the repeated climbing of ladders, and opening and closing large valves” which could be attributed to either the back or knee condition.  The left knee was not judged to fail retention standards and was not listed on the MEB (NAVMED 6100/1).  The left knee condition was reviewed and considered by the Board.  After separation repeat knee surgery was noted, but was adjudged after separation worsening.  There was no performance based evidence from the record that the left knee condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended left knee condition and so no additional disability ratings are recommended.

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.  As discussed above, PEB reliance on DoDI 1332.39 for rating the back condition was likely operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the low back condition, the Board unanimously recommends a disability rating of 40%, coded 5237IAW VASRD §4.71a.  In the matter of the contended left knee condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Persistent Low Back Pain	5237	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131220, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
		   DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref:   (a) DoDI 6040.44
       (b) PDBR ltr dtd 31 Jul 15 ICO XXXXXXXXXXXXXXX
       (c) PDBR ltr dtd 31 Jul 15 ICO XXXXXXXXXXXXXXX
	 (d) PDBR ltr dtd 24 Jul 15 ICO XXXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 31 Jul 15 ICO XXXXXXXXXXXXXXX
	 (f) PDBR ltr dtd 11 Aug 15 ICO XXXXXXXXXXXXXXX
	 (g) PDBR ltr dtd 27 Jul 15 ICO XXXXXXXXXXXXXXX
	 (h) PDBR ltr dtd 14 Aug 15 ICO XXXXXXXXXXXXXXX

1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (h).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge. 

     b. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.

     e. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.

     g. XXXXXXXXXXXXXXX, former USN: Placement on the Temporary Disability Retired List (TDRL) for six months at time of discharge with a 60 percent disability rating; following the TDRL period, placement on the Permanent Disability Retired List with a 40 percent disability rating. 

3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.