RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-00100
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20140916
SEPARATION DATE:  20070117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO2/E-5 (Damage Control Specialist) medically separated for degenerative disc disease with herniation at L3/4 through L5/S1.  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] status and referred for a Medical Evaluation Board (MEB).  The MEB forwarded the degenerative disc disease with herniation at L3/4 through L5/S1 condition, characterized as “other and unspecified disc disorder of lumbar region” to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “degenerative disc disease with herniation at L3/4 through L5/S1” as unfitting, rated at 20%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I feel like the damage done to my lower back was more than 20%.  It has caused me to not only end my Naval career but limits my civilian work life as well as my personal life.”

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 degenerative disc disease with herniation at L3/4 through L5/S1 condition is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions 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. 

RATING COMPARISON:  

Service IPEB – Dated 20061002	VA - (1 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Disc Disease with Herniations At L3/4 Through L5/S1	5237	20%	Degenerative Disc Disease and Scoliosis of the Thoracolumbar Spine 	5242	20%	20060227	
Other x 0 (Not in Scope)	Other x 6 (Not in Scope)		
Combined:  20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20070223 (most proximate to date of separation)

ANALYSIS SUMMARY:  The Board acknowledges the impairment with which the CI’s service-incurred condition continues to burden him, but notes the DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  This role and authority is granted by Congress to the Department of Veteran Affairs (DVA).  The VA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate service connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should his degree of impairment vary over time.

DDD with Herniation at L3/4 Through L5/S1 Condition.  Available treatment records documented that the CI presented with a 3-day history of back pain on 10 May 2004.  The physical examination was significant for painful motion with a normal gait and normal neurologic evaluation.  The CI was treated with muscle relaxants, anti-inflammatory medications and activity modification.  The CI’s records were silent for back pain until February 2006 when the CI presented to the emergency department (ED) with lower back pain radiating down into his left leg, left groin and left great toe.  Lumbar X-rays demonstrated mild degenerative changes.  The CI was treated with narcotics and activity modification.  A magnetic resonance imaging study dated 16 February 2006 revealed degenerative disc disease of the thoracolumbar spine with lumbosacral disc herniation.  He was treated with steroid injections and physical therapy without relief of his chronic lower back pain.

The narrative summary (NARSUM) dated 31 July 2006 notes a history of lower back pain with intermittent back spasms.  During the physical examination, the examiner noted moderate distress that limited forward flexion to 30 degrees with moderate tenderness to palpation and positive straight leg raise.  The examiner noted that 3/5 Waddell’s signs were positive.  The examiner opined that the CI was unable to perform the duties of his rank and grade due to chronic low back pain.  

At the VA Compensation and Pension (C&P) examination (performed a month post-separation); the CI reported stiffness, weakness, sleep disturbance, difficulty lifting due to crushing, aching, sticking, cramping, burning and sharp low back pain.  He reported three or four incapacitating episodes a year for duration of 15 days.  The physical examination documented a normal gait; pain limited forward flexion to 60 degrees and additional limitation with repetitive use.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the degenerative disc disease with herniation at L3/L4 through L5/S1 as unfitting.  Both the PEB and the VA rated the low back condition at 20%, coded 5237 (lumbosacral strain).  The Board noted that the forward flexion measurement of 30 degrees at the MEB’s examination (5 months prior to separation), met criteria for a 40% rating, however, the Board placed higher probative value on the VA’s examination measurement of 60 degrees because that evaluation was most proximate to the time of separation.  It also represented a better representation of the CI’s condition as supported by the totality of the record.  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 degenerative disc disease with herniation at L3/4 through L5/S1 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 degenerative disc disease with herniation at L3/4 through L5/S1 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.

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 20131226, 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 8 Apr 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:

- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN