RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00777
BRANCH OF SERVICE: NAVY 	BOARD DATE:  20151023
SEPARATION DATE:  20050607

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4 (Air Traffic Controller) medically separated for a back condition.  The back 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).  “Acquired spondylolisthesis,” “degeneration of lumbar or lumbosacral intervertebral disc,” and “schmorl’s nodes, lumbar region” were the only conditions forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “chronic low back and right lower extremity pain” as unfitting, rated 10%.  The PEB adjudicated the “degenerative disc disease (DDD) w/schmorl’s node formation at L2/3 level and bilateral pars defect” as a Category II condition (contributing to the unfitting condition).  The PEB also adjudicated “likely forme fruste ureteropelvic junction, obstruction as a Category III condition (not separately unfitting and does not contribute to the unfitting condition).  

CI CONTENTION:  He was given a higher rating by the VA and his back condition continues to worsen and negatively impact his daily activities.  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: 

IPEB – Dated 20050105	VA* - (~3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back and Right Lower Extremity Pain	5242	10%	Degenerative Joint Disease (DJD), degenerative spondylosis at L2/3	5242	40%	20050928	
DDD w/Schmorl’s Node Formation…..	Category II	No VA entry	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 4 	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20060628 (most proximate to date of separation (DOS)).  VARD of 20061018 increased rating to 50% based on rating of deferred conditions.

ANALYSIS SUMMARY:  

Low Back and Right Leg Condition.  Absent direct trauma, the CI initially reported low back and right leg pain while in basic training in early 2002.  Orthopedic work-up revealed DDD of the lumbosacral spine.  Despite conservative treatment including two periods of LIMDU, medications, physical therapy (PT) and local injections, his painful symptoms remained and he was referred to an MEB.  At the MEB narrative summary (NARSUM) examination on 23 August 2004 (10 months pre-separation) the CI endorsed constant low back and right leg pain extending to his heel.  He reported worsening pain with sitting, prolonged standing/walking, bending, stooping, or any twisting motion.  He denied numbness and tingling in his lower extremities.  His physical examination (PE) revealed lumbosacral tenderness with decreased range-of-motion (ROM).  Strength, motor, and sensory components of the lower extremities were normal or intact.  His gait was normal and there was no comment in regards to the presence of painful motion.  There was no documentation of VASRD defined periods of incapacitation.  His diagnosis remained unchanged.  The commander’s comments included a strong recommendation that the CI return to full duty status after receiving medical treatment.  At the VA Compensation and Pension (C&P) examination on 28 September 2005 (4 months post-separation), the CI reported weakness and low back pain (LBP) that radiates in his right leg.  His PE revealed tenderness to the lumbosacral spine and painful decreased ROM of the thoracolumbar spine.  His gait, stance, and coordination were appropriate.  A right-sided straight leg raise was positive at 20 degrees.  Vital signs were documented in sitting, recumbent and standing positions.  The goniometric 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 ~10 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep	
Flexion (90 Normal)	70	10	
Extension (30)	25	5	
R Lat Flexion (30)	30	10	
L Lat Flexion (30)	30	15	
R Rotation (30)	30	40	
L Rotation (30)	30	40	
Combined (240)	215	120	
Comment	tenderness;
normal gait	tenderness;
painful motion; 
normal “appropriate” gait	
§4.71a Rating	10%	40%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB adjudged only the low back with extending right leg pain condition was unfitting, rated 10% with code 5242 (degenerative arthritis).  The DDD with Schmorl’s node formation was adjudged as Category II and was considered correctly related to the unfitting back condition and disability included under the 5242 rating code.  The VA also coded under 5242 with a 40% rating.  

Board members first acknowledged the vast difference and worsening ROM parameters within the 13 month period from the MEB and VA examinations noting the absence of evidence indicating a recurrent injury or other pathologic development in explanation of such declining ROM values.  Board members extensively discussed the variance and concluded that the MEB evaluation remained more consistent with the objective findings in the majority of clinical encounters contained within the case file; and therefore, placed a higher degree of probative value (PV) on that examination.  Additionally, members agreed that the apparent inconsistency with the VA examination of having the ability to sit (for vital sign monitoring) in light of the severe limitation of forward flexion of the thoracolumbar spine only strengthen the PV being assigned to the MEB.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the LBP condition was appropriately recommended in this case.  Members also agreed that there was no radicular component linked to functional impairment and that the radicular ‘pain component’ is subsumed under the general spine §4.71a rating.  

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 and right lower extremity pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 20140202, 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 4 Jan 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:

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