RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00374
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20050505

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E6, Utilitiesman First Class, medically separated for “low back pain,” with a disability rating of 10%.  

CI CONTENTION:  The applicant states he has continuous pain.  The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 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:  

SERVICE PEB - 20050110	VARD - 20050511	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	Lumbar Sprain and Strain	5237	10%	20031106	
Left Lower Extremity Radiculopathy	Cat II					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in April 2003 after falling while on active duty.  He was evaluated for back pain in June 2003.  On physical examination (PE), he was alert, oriented, and in no apparent distress.  PE of the back revealed full range-of-motion (ROM), with no spasms noted.  Muscle strength and deep tendon reflexes (DTRs) were normal.  

At a VA Compensation and Pension (C&P) exam on 6 November 2003, 18 months before separation, the CI reported pain in the paraspinal muscle area more than the midline.  He denied any lower extremity (LE) radiation of pain, and denied any LE motor or sensory symptoms.  His LBP was worse after a lot of activity.  On PE, gait and station were normal.  There was some mild tenderness to palpation (TTP) in the right and left paraspinal regions.  Neurological exam was normal.  Back ROM was measured and is summarized in the chart below.  On 22 December 2003, magnetic resonance imaging (MRI) was performed on the lumbar spine.  There was no evidence of a herniated nucleus pulposus (HNP); minimal disc bulging and mild foraminal stenosis (narrowing) was seen at L5-S1.

The MEB narrative summary (NARSUM) dated 30 September 2004, noted CI reports that he was unable to perform heavy lifting or twisting, as the pain would shoot down his left leg.  On PE, he was in no acute distress and the back showed a grossly well-aligned spine.  There was significant paraspinal spasm in the lower lumbar region.  Straight leg raise (SLR) was positive on the left at 60 degrees.  Muscle strength was normal and sensory examination distally showed normal sensation to light touch.  MRI revealed multilevel disc desiccation, with L4-L5 and L5-S1 disc bulge.  The NARSUM diagnostic assessment was: low back pain with multilevel disc desiccation, L4-L5 and L5-S1 disc bulge, with left lower extremity radiculopathy.  Thoracolumbar ROM was not recorded at that time.  

The Board directed attention to its rating recommendation based on the evidence.  Both the PEB and VA assigned a 10% rating using the 5237 code (lumbosacral strain).  The VA rating based on the C&P exam 18 months before separation, cited limitation of forward flexion. The Board’s rating recommendations are based on ratable criteria at the time of separation; therefore, higher probative value was placed on the MEB exam, 7 months after separation, which documented significant paraspinal spasm and localized tenderness in the lumbar region, but insufficient evidence of abnormal gait or abnormal spinal contour.  IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 10% rating is warranted for muscle spasm or localized tenderness not resulting in abnormal gait or abnormal spinal contour.  The Board considered using other VASRD codes which could be applied to the CI’s condition, but none resulted in a higher rating since the record did not show sufficient evidence of a seriously disabling back condition or spinal abnormality. Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication of the unfitting low back pain condition. 

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the L4-L5 and L5-S1 disc bulge, with left LE radiculopathy, determined to be a Category II condition, was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The L4-L5 and L5-S1 disc bulge, with left LE radiculopathy, was not implicated in the commander’s statement and was not judged to fail retention standards.   The condition was reviewed and considered by the Board.  The CI did indeed have neurological symptoms, and was diagnosed with radiculopathy. However, his muscle strength was normal, and there was no performance-based evidence from the record that the neurological condition significantly interfered with satisfactory duty performance.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  The Board determined that this condition was indeed related to the unfitting LBP condition, and did not constitute a separately unfitting condition for disability rating purposes. After due deliberation, and in consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB adjudication of the L4-L5 and L5-S1 disc bulge, with left LE radiculopathy.  Therefore, no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the L4-L5 and L5-S1 disc bulge, with left LE radiculopathy, 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.  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 20140110, 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 11 Mar 16

      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, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC