RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00537
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20070531

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Electrician's Mate, medically separated for low back pain.  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 “lumbosacral spondylosis without myelopathy” and “degeneration of intervertebral disc,” 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 the back condition as “fit to continue on active duty.”  The CI appealed to a reconsideration IPEB which adjudicated “lower back pain” as unfitting, rated 20%.  The remaining conditions (DDD; disc bulge L3-4, L4-5; spondylosis L5-S1) were determined to be category II (contributing to unfitting condition).  The CI made no appeals and was medically separated.  

CI CONTENTION:  “The following issues are why my condition which rendered me unfit for service should be changed to a higher rating.  I injured my back while being ordered to carry a 300-500 pound motor with a fellow serviceman.  When he slipped I took the brunt of the weight on my lower back and severely injured it.  I was unable to perform P.T. and other duties (Please note that the first two documents also demonstrate the other service connected injuries rated by the VA, including my neck injury which I think may also have been part of my medical separation). I was found unfit to continue service with the Navy, even though I had planned to go career.  After that injury my back has “gone out” numerous times both during my remaining time in the Navy and also numerous times since I have been separated.  Another reason why I believe the rating should be changed is that the VA rated my injury (degenerative disc disease, lumbar spine with spondylosis) at 40% within 12 months from separation.  And lastly, you will see from my medical records that I am on constant pain medication, have had numerous steroid injection procedures and PT.  My job is also impacted as I call in sick when my back goes out.  My rating should be changed to 40%. ”  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 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:  

Recon IPEB – Dated 20061026	VA* - (~8 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5242	20%	Degenerative Disc Disease (DDD), Lumbar Spine with Spondylolysis  and Radiculopathy	5243	40%	20080118	
Disc Bulge L3-4, L4-5	Cat II					
Spondylolysis L5-S1	Cat II					
DDD	Cat II					
No MEB or PEB entry	Right Lower Extremity Radiculopathy Associated with DDD, Lumbar Spine with Spondylolysis  and Radiculopathy	8626	10%	20080118	
	Left Lower Extremity Radiculopathy Associated with DDD, Lumbar Spine with Spondylolysis  and Radiculopathy	8626	10%	20080118	
Other x 0 (Not In Scope)	Other x 9	
RATING:  20%	RATING:  90%	
*Derived from VA Rating Decision (VARD) dated 20080408 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Low Back Pain.  The CI initially presented with lower back pain in June 2003.  Radiographic evaluations in 2003 demonstrated lumbar vertebrate 5 on sacral level 1 pathology and lumbar 4-5 disc protrusion.  The CI was evaluated by neurosurgery in September 2005 and was diagnosed of mild to moderate lumbago (lower back pain) and mild radicular pain.  The CI continued with conservative management without pain relief.  At the MEB exam, the CI reported 4/10 lower back pain.  On physical examination there was there was a normal gait with pain limited thoracolumbar motion.  At the VA Compensation and Pension (C&P) examination performed 8 months after separation, the CI reported 6-7/10 lower back pain with weakness, stiffness, swelling, instability, locking, fatigue, and lack of endurance. He reported pain radiation down both his legs.  On physical examination there was lumbar spasm, loss of lordotic curvature; pain limited motion, and positive radiculopathy testing bilaterally.  

The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~9 Mo. Pre-Sep
(20060809) 	MEB ~7 Mo. Pre-Sep
(20061010) 	PT ~3 Mo.    Pre-Sep
(20070214) 	Chiro ~2 Mo. Pre-Sep
(20070328) 	VA C&P ~8 Mo. Post-Sep
(20080118) 	
Flexion (90 Normal)	Fingertips to knees	35, 30, 28	50%	70	0-25	
Extension (30)		10, 10, 10	25%	FROM	8, 10	
R Lat Flexion (30)		40, 38, 35	25%	FROM	0-18	
L Lat Flexion (30)		48, 45, 48	75%	FROM	0-30	
R Rotation (30)		25, 25, 28	45	FROM	0-20	
L Rotation (30)		15, 18, 25	45	FROM	0-20	
Combined (240)						
Comment						
§4.71a Rating	20%	20%	20%	10%	40%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the lower back pain condition at 20%, coded 5299-5242 (analogous to degenerative arthritis of the spine.  VA rated the condition at 40%, coded 5243 (degenerative disc disease.  The Board considered whether the evidence supported a higher than 20% rating.  Although the NARSUM and VA examinations documented 30 degrees of forward flexion, multiple treatment notes most proximate to separation documented forward flexion greater than 30 degrees. Board members agreed that the measurements greater than 30 degrees most closely approximated the CI’s daily functional ability. The Board also considered a rating under the intervertebral disc rating schedule; however, there was no evidence of incapacitating episodes having a total duration of at least 4 weeks for a higher evaluation.  Board members agreed that the preponderance of the evidence did not support an unfitting radiculopathy for additional ratings.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 20% for the low back pain condition was appropriately recommended in this case

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that degenerative disc disease, dis bulge, and spondylosis were Category II conditions.  The Board’s threshold for countering Category II determinations requires a reasonable doubt, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  All were reviewed and considered by the Board.  The Board noted that pain from the aforementioned diagnoses was subsumed in rating of the low back pain condition. After due deliberation in consideration of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB Category II determination for contended conditions 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.  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 low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended degenerative disc disease, disc bulge, and spondylosis conditions, the Board unanimously recommends no change in the PEB adjudication as Category II conditions.  There were no other conditions within the Board’s scope of review for consideration.  

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 20140123, 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 22 Dec 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:

- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN  
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN
- XXXXXXXXXXXXXXXXXXXX former USN 
- XXXXXXXXXXXXXXXXXXXX former USN

						  XXXXXXXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)