RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00385
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20040706

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Fire Control man, medically separated for low back conditions.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Rating.  He was placed on limited duty (LIMDU) and referred for an Medical Evaluation Board (MEB).  Spinal stenosis of lumbar region, multilevel lumbar degenerative disc disease and epidural fibrosis were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated spinal stenosis, lumbar region as unfitting, rated 10%.  The remaining conditions were determined to be Category II (contributing to the unfit condition).  

CI CONTENTION:  The Department of Veterans Affairs gave him a higher rating for his back disability.  He was not evaluated for sleep apnea and asthma conditions.  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 condition 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 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 with application of the Veteran’s 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 IPEB – Dated 20040329	VA* - (~1 Mo. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Stenosis, Lumbar Region	5242	10%	DDD, Lumbar Spine, Post Op	5243	40%	20040611	
Epidural Fibrosis	Cat II					
Multi-level Lumbar DDD	Cat II	Scar, Lumbar Spine	7801	0%	20040611	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 7	
RATING:  10%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20040827 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The three PEB conditions are all related to the thoracolumbar spine and are considered together as the thoracolumbar spine is rated as a unit under the general spine formula IAW VASRD §4.71a.  The Board noted that the new spine rules became effective in September 2003, and prior spine rating criteria (and disability exams) did not include goniometric measurement of range-of-motion (ROM).  

Lumbar Region Conditions (Spinal Stenosis, Epidural Fibrosis, Degenerative Disc Disease).  The narrative summary (NARSUM) and treatment record documented onset of low back pain in 2001.  The CI complained of increasing back pain and left foot pain and paresthesias (abnormal sensations).  An MRI documented multilevel degenerative disc changes and spinal stenosis in the lumbar spine.  The CI underwent spine surgery (laminectomy at L2-3 and 3-4 levels) in February 2003.  The back pain continued following surgery and left leg symptoms resolved.  Post-surgical epidural steroid injections, pain management, and narcotic pain medication were not effective in relieving the CI symptoms.  

At the MEB examination, dated 19 December 2003, approximately 7 months before separation, the CI reported persistent low back pain with intermittent right leg pain and paresthesias.  Exam documented no lumbar spine tenderness to palpation.  Straight leg raise (for radicular signs and symptoms) was positive bilaterally.  Motor, sensory and reflex exams were normal with no focal deficits.  Repeat MRI indicated “epidural fibrosis surrounding the L3 nerve roots in the region of the prior decompression” with no gross disc herniations.  The record documented that the CI had additional epidural steroid injections (ESI) prior to separation.  

Treatment note dated 13 February (approximately 5 months before separation) for back pain and right leg and foot burning sensation, documented pain on all lower back motions with tenderness, spasm and an antalgic gait.  Extremity movement and reflexes were normal and narcotic pain medication was prescribed.  

At the VA Compensation and Pension (C&P) exam dated 11 June 2004, approximately 1 month before separation, the CI related a similar history.  The CI complained of constant low back pain, morning stiffness, and bilateral radicular symptoms (L2 and L5-S1) including daily (radiating) right foot pain.  The CI was taking narcotic pain medication and muscle relaxants.  Exam documented normal posture and gait with guarding of all lumbar spine movements.  Forward flexion was 25 degrees (normal 90) with combined ROM of 155 degrees (normal 240).  Straight leg raises were positive bilaterally.  Lower extremity sensory, reflex, and motor exams were normal.  Spine X-ray was negative.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the CI’s back condition at 10% coded 5242 (degenerative arthritis of the spine), while the VA using a different exam rated the CI’s back condition at 40% coded 5243 (intervertebral disc syndrome).  The Board deliberated on the probative value of the evidence in the record.  None of the Service exams provided goniometric ROM values IAW §4.46 (accurate measurement).  The VA exam was detailed and thorough, prior to (and closest to) the date of separation, and was the single comprehensive goniometric ROM evaluation.  The Board adjudged that the VA exam therefore had the highest probative value for rating.  That exam met the 40% rating criteria for forward flexion of the thoracolumbar spine 30 degrees or less.  

The Board additionally considered if the CI’s radiating leg (radicular) symptoms warranted additional Service disability rating.  However, there were no objective neurologic deficits on exams, and pain (whether or not it radiates) is subsumed under the general spine rating as specified in §4.71a.  The Board concluded therefore that no peripheral nerve condition (neuropathy) could be recommended for additional disability rating.  

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 low back condition(s).  

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.  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 40%, coded 5242 IAW VASRD §4.71a.  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:  

CONDITION	VASRD CODE	RATING	
Lumbar Region Spinal Stenosis With DDD and Epidural Fibrosis	5242	40%	
RATING	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140101, 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 16 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX 
	(c) PDBR ltr dtd 16 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 11 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 31 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 31 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 31 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 30 Nov 15 ICO  XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 30 Nov 15 ICO  XXXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 01 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 04 Jan 16 ICO  XXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (k) are approved.

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

     a. XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List effective date of discharge with a 60 percent (increased from 20 percent) disability rating.

     b. XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List effective date of discharge with a 50 percent (increased from 10 percent) disability rating.

     c. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List effective date of discharge with a 40 percent (increased from 10 percent) disability rating. 

     f. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

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

     h. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List effective date of discharge with a 50 percent (increased from 20 percent) disability rating. 

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

     j. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.  
       
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.

	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)