RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00748
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20070810

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Weapons Systems Technician, medically separated “residual low back pain [LBP] without radiculopathy,” with a disability rating of 10%. 

CI CONTENTION:  The CI contends for his back condition. The CI’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 Physical Evaluation Board (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 based upon a 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 - 20070507	VARD - 20071031	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Residual LBP, w/o Radiculopathy	5243	10%	LLE Radiculopathy	8520	10%	20070712	
			RLE Radiculopathy	8520	10%		
Herniated Lumbar Disc L4-L5 Left, S/P Discectomy L4-5 Left	Category II	Thoracolumbar Spine Degenerative Disc and Joint Disease, S/P L4-5 Laminectomy 	5243-5242	20%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Residual LBP without Radiculopathy.  According to the service treatment record (STR), and the MEB narrative summary (NARSUM), this CI injured his back in a motor vehicle accident.  In February 2006, he had back surgery for a herniated lumbar disc at L4-L5.  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted military duty, and he underwent an MEB. The MEB forwarded “hernia of other specified sites,” and “neuralgia, neuritis, and radiculitis, unspecified” for PEB adjudication.  Magnetic resonance imaging (MRI) in December 2006, showed no evidence of recurrent disc herniation.  A series of epidural steroid injections in February and April of 2007 provided only mild improvement.  At the April 2007 MEB NARSUM examination, 4 months prior to separation, the CI reported LBP radiating into both sacroiliac (S-I) areas, aggravated by prolonged standing, sitting, bending or stooping.  Physical examination (PE) noted intact deep tendon reflexes in the lower extremities, without evidence of motor deficit.  There was some tenderness in both S-I areas.  On 3 May 2007, lumbar spine range of motion (ROM) was measured by physical therapy (PT).  With active flexion, the CI brought fingertips to 20.5 inches from the floor (normal is 4 inches).

At the VA Compensation and Pension (C&P) examination on 12 July 2007, 1 month before separation, the CI reported constant pain that was burning, aching, sharp, throbbing, and stabbing.  He also reported incapacitating episodes as often as 3 times per month.  Over the preceding year, he had had 30 such episodes.  PE showed normal posture, but abnormal gait (very slow).  The CI was not using any cane or other assistive device for ambulation.  PE of the back revealed evidence of radiating pain on movement.  There was muscle spasm and tenderness in the lower back.  Straight leg raise was positive bilaterally. There was symmetry of spinal motion, with normal curvature of the spine.  The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~3 mos. Pre-Sep
(20070503)	VA C&P ~1 mo. Pre-Sep
(20070712)	
Flexion (90 Normal)	“20.5 inches from floor (normal 4 inches)”	45	
Combined (240)	(unable to calculate)	105	
Comment	Flexion comment is a quote from the PT data.	Radiating pain on movement; muscle spasm; tenderness;	

The Board directed attention to its rating recommendation based on the evidence.  The Navy PEB assigned a 10% rating under the 5243 code (intervertebral disc syndrome), citing residual low back pain.  The VA assigned a 20% rating using VASRD code 5243-5242 (intervertebral disc syndrome with degenerative arthritis of the spine), citing ROM criteria. 

The Board determined the July 2007 C&P examination was just a month before separation.  At that examination, there was only 45 degrees of forward flexion.  Combined ROM of the thoracolumbar spine was 105 degrees.  IAW VASRD §4.71a, a 20% disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees.  A 20% rating is also warranted when combined thoracolumbar ROM is not greater than 120 degrees; therefore, the Board agreed a 20% rating was appropriate in this case.  

The CI did report a history of incapacitating episodes; however, the record contained insufficient objective evidence to support a higher rating based on incapacitating episodes, IAW diagnostic code (DC) 5243.  The Board also considered the matter of lumbar radiculopathy.  The CI did indeed have neurological symptoms; however, after careful review of all the information in the record, there was insufficient evidence of a clinically significant radiculopathy that interfered with performance of military duties.  The Board concluded there was no unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board unanimously recommends a 20% rating for the unfitting LBP condition, coded 5242 (Degenerative arthritis of the spine), IAW VASRD §4.71a.
 
Contended PEB Condition: Herniated Lumbar Disc L4-5 Left.  An additional low back condition was adjudicated by the PEB as Category II (related to the unfitting LBP condition).  The Board’s main charge with respect to this other back condition is to assess the appropriateness of the PEB’s adjudication.  This condition were thoroughly reviewed and considered by the Board.  The Board determined the other back condition was indeed related to the unfitting condition, and did not constitute a separately unfitting condition for disability rating purposes.  After due deliberation, and in consideration of the evidence, the Board found insufficient cause to recommend a change in the PEB adjudication.

BOARD FINDINGS:  In the matter of the residual LBP, without radiculopathy condition, the Board unanimously recommends a disability rating of 20%, coded 5242, IAW VASRD §4.71a.  In the matter of the herniated lumbar disc L4-L5 left condition, the Board unanimously recommends no change in the PEB adjudication as Category II.  There were no other conditions within the Board’s scope of review for consideration.  

The Board therefore recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
 Residual LBP without Radiculopathy	5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140204, 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 19 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX   
	(c) PDBR ltr dtd 20 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 26 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 19 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 16 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 29 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 20 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX

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

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective date of discharge.  

     b. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.  

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

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

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

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

     f. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 20 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)