RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00421
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20060918

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4 (Construction Mechanic) medically separated by the Informal Physical Evaluation Board for “degenerative disc disease L5-S1 with bulge” and “pulmonary embolism” rated 10% and 0%, respectively; with a combined disability rating of 10%.  

CI CONTENTION:  The CI contends that he was not able to fully comprehend the complete disability evaluation system processing due to medications he was on at the time.  He also contends for additional conditions that were not included into the process.  The applicant’s 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 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 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:  

SERVICE PEB - 20060505	VARD - 20100113	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Disc Disease L5-S1 w/Bulge	5243	10%	Degenerative Disc Disease of the Lumbosacral Spine L5-S1	5242	40%	20091209	
Pulmonary Embolism	7199-6604	0%	Pulmonary Embolism	6899-6817	NSC	20091023	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Low Back Condition.  According to the service treatment records (STR) and the narrative summary (NARSUM), the CI developed low back pain (LBP) after heavy lifting in 2002.  Despite treatment with medications and physical therapy (PT), the CI continued to report LBP with radiating pain and paresthesias (abnormal sensory disturbances, often numbness and tingling [N/T]) of the right lower extremity [RLE]).  Lumbar spine magnetic resonance imaging (MRI) in September 2005 showed multilevel degenerative disc disease and spinal arthritis with “mild” displacement of the right L4-5 nerve root and “mild” neuroforaminal stenosis at L5-S1 bilaterally, without direct nerve compression.  Orthopedic evaluation on 28 September 2005, 12 months before separation, noted the CI used a cane and “ambulated extremely slowly” and had “had exquisite tenderness diffusely to even the lightest touch to his lower back region” and noted other pain responses to exam maneuvers not typically expected to elicit pain.  The CI was able to flex and extend to 20 degrees with pain, and muscle spasm was present.  A pain clinic visit 17 November 2005 indicated the CI was “unable” to flex or extend his low back due to pain.  A PT note on 3 December 2005, 10 months before separation, noted trunk range-of-motion (ROM) was limited by 75% in all directions, and there was an antalgic stance to the left.  A neurological evaluation the same day noted normal reflexes, strength graded 5-/5, and sensory deficits of the entire RLE; the assessment was that the constellation of symptoms and exam findings was not consistent with a lumbar radiculopathy.  A brain MRI was performed 14 December 2005 to rule out central nervous system lesions and was normal.  An internal medicine clinic evaluation on 9 January 2006 noted the CI used a cane.  The exam noted ROM of flexion was 40 degrees (normal 90) and all other ROM (extension, lateral bending, and rotation) was 0 degrees (normal 30 degrees for all).  Bilateral LE strength and reflexes were normal and straight leg raise (SLR) was positive on the right.  There were no periods of physician-prescribed bed rest or quarters documented in the 12 months before separation.  The CI’s LBP did not resolve with conservative treatment, including epidural steroid injections, and no surgery was recommended.  The CI was unable to fulfill his duties due to persistent LBP and an MEB was initiated.

At the MEB exam (recorded on DD Form 2807 and 2808) dated 25 January 2006, 8 months before separation, the CI reported LBP and intermittent RLE pain.   The MEB physical exam noted the CI appeared to be in no acute distress and used a cane for assistance with ambulation.  Lumbar spine ROM was described as “marked restriction of range of motion” with a stooped posture (forward flexed – camptocormia), with “essentially nil” extension, lateral flexion, or rotation.  There was “vague tenderness” in the lumbar region, with back pain, but no muscle spasm or LE pain.  Strength, sensation, and reflexes of the bilateral LEs were normal and SLR testing was negative bilaterally.

At the VA Compensation and Pension (C&P) neurological examination on 27 October 2009, performed 37 months after separation, the CI reported LBP and RLE pain with paresthesias of the entire right leg, without bowel or bladder problems.  The exam noted the CI used a cane.  Lower extremity strength was normal, with normal sensation to light touch, but decreased temperature and vibration sense in the right leg.  Brain MRI and vascular studies of the head and neck were normal.  According to the neurologist, the described sensory deficits were not consistent with a nerve root lesion (radiculopathy).  In an addendum dated 7 December 2009, the neurologist indicated lumbar MRI showed a disc bulge at L5-S1, without nerve compression or spinal canal stenosis and electrodiagnostic studies (EMG/NCV studies) of the RLE were normal.  The final assessment was there was no evidence of stroke or epilepsy and “no convincing evidence of…lumbar radiculopathy.”

At the VA C&P spine exam performed 9 December 2009, 39 months after separation, the CI reported LBP with intermittent radiating pain to the RLE.  He reported there were no episodes of physician prescribed bed rest in the past 12 months.  The CI was wearing a back brace and used a cane with a limp favoring the right leg.  The examiner noted that the CI could remove and put back on his clothes, socks, and shoes without difficulty during the exam.  The exam noted tenderness to palpation of the lumbar region, with increased muscle tone and guarding.  Thoracolumbar ROM was flexion of 30 degrees, and combined ROM was 85 degrees (normal 240) and there was no additional loss of ROM with repetition.  Straight leg raise testing was negative and RLE sensation and reflexes were normal; strength was graded 4/5.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5243 (intervertebral disc syndrome) and the VA rated the low back condition 40%, coded 5242 (spinal arthritis), 39 months after separation, based on the ROM at the remote C&P Spine exam.  The Board notes that the VA C&P exams are outside the 12-month period for special consideration of post-separation VA evidence in the Board’s rating recommendation IAW DoDI 6040.44, and the C&P exams were therefore considered in the Board’s deliberations only to the degree that they provide information that reflects the CI’s condition proximate to the date of separation.  

Thus, the Board focused its deliberations predominately on the evidence in the STR and at the MEB NARSUM exam.  Multiple evaluators in record noted qualitatively that low back ROM was primarily limited by pain, and implied the CI would not attempt ROM due to pain at times.  Only two exams in the STR noted ROM in degrees.  The orthopedic exam documented flexion limited to 20 degrees with muscle spasm, but noted that elements of the exam raised doubt regarding the validity of the findings.  The internal medicine evaluation in January 2006 noted flexion of 40 degrees and 0 degrees of motion for all other thoracolumbar ROM (combined ROM of 40 degrees when normal is 240), without muscle spasm.  In the opinion of the Board, the objective pathology did not provide a medically plausible explanation for the severe and variable limitation of global spine motion noted.  The clinical findings within single exams were inconsistent with a single etiology and seemed out of proportion to the imaging and testing evidence and findings were also inconsistent between multiple serial exams.  After deliberations, the Board agreed that the ROM evidence prior to separation does not meet an acceptable standard for a ratable measurement and that the C&P spine exam was too remote from separation to base the rating at separation solely on the ROM at that exam.  

Therefore, the Board looked for other rating criteria documented prior to separation to support a rating IAW the VASRD General Formula for Rating the Spine.  The CI used a cane for assistance at all the exams noted above and some exams within a year of separation noted the presence of muscle spasm or an abnormal spinal posture (antalgic stance).  No muscle spasm was noted at the MEB exam; however, Board members conceded that muscle spasm due to LBP is often an intermittent occurrence and the absence of muscle spasm at the MEB exam may have indicated improvement in the back condition or just day-to-day variability.  The Board concluded that with resolution of reasonable doubt in favor of the CI as per VASRD rating guidelines, the totality of the evidence in record supports a 20% rating for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  The Board reviewed to see if a higher evaluation than 20% was achieved with code 5243 (intervertebral disc syndrome) and rating based on incapacitating episodes (defined by the VASRD as treatment and bed rest prescribed by a physician).  However, there was no documentation in record of incapacitating episodes as defined.  Thus, the Board determined that the evidence supports a 20% rating for the low back condition and no higher.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low back condition.  

The Board also considered if there was evidence in the record to support recommending peripheral nerve impairment due to the back condition (radiculopathy) as separately unfitting and eligible for additional disability rating.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  Proximate to separation the CI had reported intermittent RLE pain and N/T.  The Board noted that the service neurology assessment indicated the CI’s reported sensory deficits were not consistent with a lumbar radiculopathy; at the MEB exam, RLE strength, sensation, and reflexes were normal; and, remote post-separation EMG/NCV studies were negative.  The lumbar MRI results may have indicated nerve root irritation or stretching, but there was no evidence of spinal nerve compression and the pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  Since there was no evidence of a lower extremity motor or fixed sensory deficit associated with functional impairment in this case, the Board cannot support a recommendation for additional rating on this basis.  

Pulmonary Embolism (PE) Condition.  According to notes in the STR and the NARSUM, the CI had a history of a pulmonary embolus in November 2005 after a period of hospitalization due to an overdose of prescribed narcotics.  He was placed on anticoagulation and testing for a genetic clotting disorder was positive for a partial genetic mutation (Factor V Leiden heterozygous), which increases risk of forming blood clots.  While there was no DD Form 2808 from the CI’s enlistment physical in record, there was no mention of a clotting disorder, past history of blood clots, or medications or symptoms due to blood clots of any type noted on DD Forms 2807-1 (dated 20 October 2001 and 19 June 2002) and the CI did not report any such history at any subsequent exam in record. The last note in record which indicated residual symptoms (shortness of breath [SOB]) was dated 25 January 2006.  At the time of the NARSUM the CI remained on oral anticoagulation, and treatment notes indicated that this regimen would be continued for 6 months for the acute PE.

Neither the MEB NARSUM exam on 25 January 2006 nor the MEB internal medicine addendum, dated 30 January 2006, documented a pertinent exam for the PE condition.  At the MEB exam on 17 April 2006, the CI reported a history of PE, but no current symptoms of chest pain or SOB.  The exam of the heart, lungs and extremities was normal.  

At the VA C&P general medical exam on 23 October 2009, 37 months after separation, the CI reported that he was treated with oral anticoagulation for approximately 8 months after the acute PE.  He reported he was evaluated by a VA hematologist in August 2009 and was re-tested and told he did not have any inherited or acquired coagulation problem and chronic anticoagulation was not recommended.  There had been no recurrence of PE or blood clot in the legs.  The CI denied any chest pain or cough, but noted infrequent difficulty catching his breath, when sitting or walking, with no problems at night or while lying down.  The exam of the heart and lungs was normal.  Pulmonary function testing (PFT) showed a forced expiratory volume of 87.2% of predicted normal (normal greater than 80%) and chest X-rays were normal.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB adjudicated the PE condition as unfitting, but existed prior to service (EPTS), rated 10% and applied a 10% EPTS deduction for a 0% rating, coded 7199-6604.  This coding appeared to the Board to be an attempted analogous/combined code for “analogous to” chronic obstructive pulmonary disease (6604) with a “hypercoaguable state,” since VASRD 7121 (post-phlebitic syndrome) is an analogous code for hypercoaguable state (7199-7121).  During active duty, testing indicated the CI had a heterozygous genetic mutation that rendered him at greater than average risk of developing a blood clot and the PEB therefore determined the coagulation disorder condition EPTS, with service aggravation during active duty implied by the rating provided.  The Board agreed with the EPTS and service aggravation determination and therefore deliberated a rating recommendation at separation.  

The Board first deliberated whether the evidence supported an EPTS deduction based upon the CI’s condition relative to the PE at the time of enlistment.  There was no evidence in the record that the he was taking medications related to a clotting disorder or had any past history or current symptoms of a blood clot at the time of enlistment.  Therefore, the Board recommends a 0% EPTS deduction at Service entry.  

The Board first considered coding the PE condition 6817 (pulmonary vascular disease) IAW VASRD §4.97 (respiratory disorders) which appeared to be a good fit for the medical evidence in this case.  At the MEB NARSUM exam, the CI was still on oral anticoagulation, however, notes indicated that once he completed a usual course of anticoagulation to treat the acute PE, the medication was stopped, and by the date of separation, the CI was not on chronic anticoagulant medication.  Also, the last note in the STR which indicated residual symptoms due to the PE was dated 25 January 2006, 8 months before separation, with no concern for persistent blood clot, breathing difficulties, or long term pulmonary or cardiovascular complications.  At the remote C&P exam, the CI reported occasional vague difficulty with breathing, but the PFT and chest X-rays were normal.  The Board agreed the evidence supports a 0% rating coded 6817 based upon lack of symptoms following resolution of the PE, and did not support the next higher rating of 30%, which specifies persistent symptoms after resolution.  The Board next reviewed coding the condition as 6604, but also found that the evidence supported a 0% rating since there was no PFT evidence prior to separation; the C&P exam PFT was normal and did not meet the threshold criteria for a 10% rating based upon reduced PFT values, coded as 6604, or other codes based on PFT results (6606 [chronic bronchitis], 6602 ([asthma], or 6603 [emphysema]).  The CI also did not have symptoms and was not on medication for a 10% rating coded as 6601 (bronchiectasis), or 6602 (bronchial asthma).  The Board next considered coding as 7199-7121, IAW §4.104 (cardiovascular system), but for the same reasons, the absence of any symptoms or physical findings related to the hypercoaguable state at the time of separation, the 10% rating was not supported.  Thus, the Board determined that the evidence supports a 0% rating for the PE condition at separation and no higher.  After deliberations, the Board settled upon the same final rating recommendation as the PEB, however, it was unclear how the PEB arrived at a 10% rating or a 10% EPTS deduction with the PEB’s coding choice.  Therefore, in this case, the Board recommends a change to the PEB code, and recommends 6817 instead.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 0% for the pulmonary embolism condition, coded 6817.  

BOARD FINDINGS:  In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the pulmonary embolism condition, the Board unanimously recommends a disability rating of 0%, coded 6817 IAW VASRD §4.97.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Degenerative Disc Disease Condition	5243	20%	
Pulmonary Embolus Condition	6817	0%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140114, 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 21 Jan 16 ICO XXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 07 Jan 16 ICO XXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 22 Jan 16 ICO XXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 11 Jan 16 ICO XXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 19 Jan 16 ICO XXXXXXXXXXXXXXX

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

     b. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge.

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

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

     e. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 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.

		XXXXXXXXXXXXXXX
		Assistant General Counsel
		(Manpower & Reserve Affairs)