RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01114
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150129
SEPARATION DATE:  20090731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Storekeeper) medically separated for low back pain (LBP) and depression.  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The LBP and depression and hypertension conditions, characterized as “degeneration of intervertebral disc, site unspecified; neuralgia, neuritis, and radiculitis, unspecified; depressive disorder, not elsewhere classified and essential hypertension, unspecified” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The PEB adjudicated “lumbosacral disk degeneration” and “depression” as unfitting, rated 10% and 10% respectively.  The conditions of “pain associated with psychological and physical factors; sacral radiculopathy” were rated as Category II conditions, which contribute to the unfitting condition.  The remaining condition of “hypertension” was a Category III condition (not separately unfitting and does not contribute to the unfitting condition).   The CI made no appeals and was medically separated.

CI CONTENTION:  “For the PDBR to consider all my PEB conditions for being unfit for duty and rated.  Including sleep apnea.”  The CI submitted a second DD Form 294 three months later in which he stated to “Please consider all conditions.”

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:

Service IPEB – Dated 20090504	VA - (~4 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	

Lumbosacral Disk Degeneration	5237	10%	Degenerative Disk Disease, Lumbar Spine	5243	40%	20091112	
Pain Associated with Psychological and Physical Factors 	Category II	Right Lower Extremity Radiculopathy (Claimed as Sciatica) 	8520	20%	20091112	
Depression	9434	10%	Major Depressive Disorder	9434	30%	20091112	
Hypertension	Category III	Hypertension	7101	0%	20091112	
Other x 0 (Not in Scope)	Other x 5	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20100127 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low back pain.  The service treatment record (STR) indicated the CI had back pain in 2001 secondary to lifting laundry, which resolved with treatment and that beginning on 14 November 2007, the CI complained of sudden LBP when running, which was associated with the symptoms of numbness and tingling down both legs anteriorly to the ankles.  A magnetic resonance imaging (MRI) dated 16 November 2007 demonstrated a focal central disc extrusion at L5-S1 that approached both descending nerve roots with slight displacement of the S1 nerve root on the right.  Degenerative disease of L5-S1 was diagnosed and was treated with a course of oral steroids followed by a nonsteroidal anti-inflammatory and muscle relaxant medications.  The CI was referred to physical therapy (PT) where he was noted to have a “stiff antalgic gait” and was unable to heel toe walk.  Within 5 weeks of the onset, the symptoms had improved, but the CI still felt right leg weakness and right buttock pain as well as right lumbar paraspinal pain.  Several examinations in early 2008 noted muscle spasms of the lower back with decreased ranges-of-motion (ROMs) of the lumbosacral spine.  A PT visit dated 12 March 2008 noted flexion 70% (?63 degrees) and extension 40% (?12 degrees) with radiculopathy and intervertebral disc degeneration.  Neurosurgical evaluation on 7 May 2008 indicated the CI had degenerative changes at L5-S1, but was not a candidate for surgery at that time since he seemed “to be relatively functional” and had received one epidural injection with some degree of improvement.  However, after a drive, the CI noted increased pain and required narcotic medication to control it.  A PT examiner noted sacral radiculopathy marked by “pain and numbness radiating into right buttocks and mid posterior thigh,” and   “[p]alpation of the low back indicate[d] a right rotation of the sacrum, L5 and L4.”  The CI noted an “electric shock” sensation in his feet for 2 months with decreased tactile sensation bilaterally and diminished or absent knee jerk reflexes.  Neurological examination on 12 September 2008 indicated the CI had difficulty putting weight on the right leg and difficulty arising from a chair with his arms crossed.  Additionally, there were findings of an antalgic gait, positive straight leg raising (nerve root irritation), weakness of the right hip, hypoactive knee jerks bilaterally, intact sensation, and moderate tenderness of the right lower lumbar spine and sacroiliac joint.  Neurodiagnostic testing pointed to a possible polyradiculopathy (abnormalities of many nerve branches) with involvement of the lumbar levels.  An MRI dated 23 October 2008 revealed a small central disc herniation at the L5-S1 level, which touched the right S1 nerve root, but no definite nerve root compression was seen.  Back pain, which flared after walking six flights of steps, was treated with oral steroids and narcotic medication.  Pain also flared when CI missed taking his medication as well as after an injury and shoveling snow.  Lumbosacral spine X-rays dated 3 March 2009 revealed low grade retrolisthesis (backward displacement) of L5 on S1 with associated mild intervertebral disc space narrowing.

At the MEB examination dated 22 January 2009, the CI reported his “disc is pushing on his sciatic nerve” and “caused tingling and numbness in the right buttocks.”  He also noted he had to use a back brace when at work.  The MEB physical examination documented acute spasms with limited ROM due to pain and a positive straight leg raising (SLR) test (to evaluate for an underlying herniated disc).  The MEB narrative summary (NARSUM) dated 6 February 2009 indicated the CI had two periods of LIMDU in 2008 and confirmed pertinent details of the CI’s history and findings.  It noted the CI was recommended by orthopedics in April 2008 to have surgery whereas a second opinion recommended against surgery and suggested continuing physical therapy.  Rheumatology work up was negative.  On examination, the CI was noted to have a limp and muscle spasms in the lumbosacral area, as well as reduced ROMs in all planes.  A lumbosacral SLR was positive to 30 degrees on the right.  Limitations included no deployment or physical training testing and no lifting greater than 20 pounds.  The non-medical assessment (NMA) dated 17 February 2009 indicated the CI’s medical condition severely limited his usefulness in the performance of military or professional occupational standards; and, his responsibilities were primarily administrative and limited in nature due to many hours a week off site for treatment and unexpected visits to military sick call.

At the VA Compensation and Pension (C&P) examination dated 12 November 2009, performed 4 months after separation, the CI reported he was repeatedly lifting 75-80 pound loads into the truck and felt back pain, but ignored it and did not report to anyone.  When he took the physical readiness test he had back pain with radiation to the right buttock down to the right lower extremity (RLE).  Low back and right buttock pain became worse in November 2008, and the disc disease was diagnosed.  Examination revealed the CI limped and there was tenderness of the lumbosacral spine and paralumbar muscles, the left greater than right, and limited ROM due to severe back pain.  Neurologically, the motor, sensory and reflex examinations were intact.  A SLR test was positive.  All ROMs were with severe pain:  lumbar flexion 0 degrees-20 degrees, extension 0 degrees-0 degrees, lateral flexion 0 degrees-15 degrees bilaterally, and lateral rotation 0 degrees-15 degrees bilaterally with a combined ROM of 80 degrees.  Another C&P examination dated 16 November 2009 reported pain described as aching discomfort on active ROM with radiation to the right buttocks to the lower legs with the following ROMs:  lumbar flexion 0 degrees-30 degrees, extension 0 degrees-20 degrees, lateral flexion 0 degrees-15 degrees bilaterally, and lateral rotation 0 degrees-30 degrees bilaterally with a combined ROM of 150 degrees.  Moderately painful flareups occurred every 2 to 3 weeks.  Tingling, numbness and paresthesias of the right leg were reported by the CI to be constant and weakness of the RLE was due to pain of the knee and hip.

The Board directed attention to its rating recommendation based on the above evidence.  The Navy PEB assigned a 10% rating using code 5237 (lumbosacral strain) for LBP and determined the sacral radiculopathy to be a Category II condition.  The VA assigned a 40% rating using code 5243 (intervertebral disc syndrome) based on a flexion ROM of 20 degrees and assigned a 20% rating for the RLE radiculopathy using code 8520 (moderate incomplete sacral nerve paralysis) based on decreased sensation in the right lower extremity with 2/5 weakness.  The Board was unclear on how the Navy PEB determined its rating for low back pain in the absence of actual measured ROMs IAW the VASRD unless the PT examination more than a year prior to separation that noted flexion of 70% was interpreted to be 63 degrees, which might have accounted for assignment of a 10% rating.  However, other STR evidence indicated the ROMs were decreased in all planes, and it would be speculative to consider what the combined ROM would be.  In assigning probative value to these somewhat conflicting examinations, the Board noted that the VA measurements were consistent with the diagnostic and clinical pathology in evidence.  Forward flexion measurements of 20 degrees and 30 degrees only several days apart each afforded a 40% rating.  Therefore, the Board members determined that the VA documentation was sufficiently probative on which to base its rating of 40%.  There was no other route to a higher rating.  Lower ratings based on a combined ROM of 80 degrees would afford a 20% rating as would muscle spasm and a limp, and taking painful motion in account could bring up the rating to 30%.  However, IAW VASRD §4.3 benefit of doubt goes to the CI and the Board members agreed that a 40% rating was appropriate.  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 LBP condition.

Sciatic Radiculopathy.  The Board considered whether an additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for the associated sciatic radiculopathy at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case had no functional implications; the motor impairment was either intermittent or relatively minor and cannot be linked to significant functional consequence.  The weakness noted by the VA was due to pain of the knee and hip.  There was no significant evidence, in the absence of the use of supportive footwear or a brace, of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy.  The Board cannot support a recommendation for an additional disability rating on this basis.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB determination of the radiculopathy as a Category II condition.

Depression.  Clinical notes in the STR were limited.  However the CI was evaluated on 15 September 2008 at which time he was seen in the Mental Health (MH) Clinic upon referral and was noted to have a depressed mood, suicidal thoughts (in the past), several stressors including back pain, and a MMPI-2 test suggestive of severe depression, marked worry, and anxiety.  Medication and psychotherapy were commenced in September 2008 for the diagnosed conditions of depression and pain associated with psychological and physical factors.  The MEB NARSUM dated 6 February and MH Addendum dated 18 February 2009 provided further information related to the CI’s MH condition.  As a result of his back pain and the lack of improvement with several treatments mentioned above, the CI “expressed frustration and despair regarding his home life, continuing back pain, and ‘abusive’ treatment by his command.” His symptoms improved and he was found psychiatrically fit for full duty on 1 October 2008.  An emergency department note dated 24 October 2008 indicated the CI admitted to a history of depression.  Biofeedback therapy was instituted in December 2008 for his “stress-related anxiety disorder.”  In January 2009, he expressed thoughts of self-harm and was referred to MH where outpatient treatment consisted of weekly cognitive psychotherapy and antidepressant medications (sertraline and nortriptyline).  His condition “waxed and waned in relation the worsening of his back pain, but has overall improved.”  He presented “as dysphoric, anxious, and expresse[d] a sense of hopelessness and helplessness about his chronic back problems. . . At times he [became] despondent and reported suicidal thoughts” without any “gesture or attempt.”  The back pain did not “improve and [made] climbing stairs and many routine activities a painful experience.”  The CI’s “focus centered around his physical pain and the adverse effects it had on his ability to function.”  Judgment was good and cognitive functions were intact.  Continued psychotherapy and medication were determined to be needed on return to civilian life and the “condition alone [was] so severe that it affects his employability in the civilian world.”  While the NMA did not explicitly address the MH condition, it did indicate “he remain[ed] on the supply watch bill with the help of another sailor who perform[ed] all manual labor and was at the ready to assume all duties and responsibilities of the . . . duty supply officer.”  But the NMA noted “the CI is off site for many hours a week for treatment,” while the NARSUM indicated he would not be able to make progress or return to full duty in regard to his back condition, which was “complicated by his morbidity of depression.”

At the VA C&P examination dated 12 November 2009, performed 4 months after separation and based on evaluations of 1 October and 23 October 2009, the CI reported that depression started after an MRI showed ruptured disks in his back.  His “reported symptoms included passive suicidal ideation, depressed mood, amotivation, isolation, and insomnia” and “noted stressors included dissatisfaction with command, strained relationship with wife and children, difficulty adjusting to possibility of back pain being chronic, and possibility that [he would] not be able to return to athletic functioning.”  He was diagnosed with major depressive disorder, single episode-mild, pain disorder associated with General Medical Condition and Psychological Factors, and Partner Relational Problem.  During an examination for posttraumatic stress disorder (PTSD), the CI reported a stressor particularly traumatic in 2004 in the waters near Iran marked by intense fear and helplessness and “witnessed death of crew members” about which he did not discuss.  Symptoms were infrequent and mild and included “intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; markedly diminished interest or participation in significant activities; a feeling of detachment or estrangement from others; difficulty falling or staying asleep; irritability or outbursts of anger; and difficulty concentrating.”  However, the CI did not meet the DSM-IV criteria for a diagnosis of PTSD and was diagnosed with major depressive disorder, recurrent-moderate with a Global Assessment of Function (GAF) score of 55 (moderate symptoms or moderate difficulty in social, occupational, or school functioning).  After separation, the CI was hospitalized in November 2009 for homicidal ideation toward his ex-wife and his GAF was 50 on discharge.

The Board directed attention to its recommendations based on the above evidence.  The Board first deliberated whether VASRD §4.129 (for any “mental disorder that develops in service as a result of a highly stressful event”) is applicable to this case.  All members agreed that the depression and the pain disorder associated with general medical condition and psychological factors were related to the CI’s back pain and not to a highly stressful event.  The VA examination indicated that although the CI reported fear when in waters off Iran, the criteria for PTSD were not met.  Furthermore, the STR did not support any highly stressful event.  Therefore, the Board determined that the depression was independent of any stress related to deployment in 2004, and VASRD §4.129 is not applicable in this case.  The Board turned to deliberation of a fair rating recommendation at the time of separation; this derived from criteria of VASRD §4.130 and based on the disability evidenced in the record at the time of separation.  The PEB rated the depression at 10% using code 9434 (Major Depressive Disorder) and determined the pain disorder was a Category II condition related to the back pain, while the VA rated the depression 30% also using code 9434.  The CI’s MH conditions were inextricably intertwined and related to the CI’s back pain and pyramiding IAW VASRD §4.14 is to be avoided.  A 10% rating requires an occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication, while an evaluation of 30% is granted whenever there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  The Board noted the CI’s symptoms “waxed and waned” related to his back pain, which is consistent with an occupational impairment due to transient symptoms.  Additionally, his symptoms improved with psychotherapy and continuous medication thereby favoring a 10% rating, although the NARSUM noted his back condition was “complicated by his morbidity of depression” and the addendum noted “the condition alone [was] so severe that it affects his employability in the civilian world.”  However, the VARD of 30% was based “on continued symptoms of agitated and depressed mood with decreased attention span, panic attacks, problems controlling anger and homicidal and suicidal ideation without plan or intent.”  The Board members discussed the merits of a 10% and 30% rating and noted the service treatment record had very limited primary source information regarding the CI’s MH treatment and progress.  There was little doubt that the CI was depressed as a result of the back condition.  While the VA MH examinations in the record were in more depth and elucidated more details on which the VA rating was determined, the PEB rating of 10% is likewise credible and reasonable since his treatment was on an outpatient basis requiring neither intense outpatient therapy nor hospitalization prior to separation; and he was noted to have “overall improved.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the depression condition.

Hypertension.  The CI was noted to have a blood pressure reading of 132/102 during a clinic visit at which time he presented with right knee pain on 21 August 2008.  The MEB physical examination revealed his blood pressure to be 104/78 dated 22 January 2009, while the NARSUM dated 6 February 2009 noted the CI was taking blood pressure medications (Toprol XL and lisinopril) for the hypertension and his blood pressure was 128/84.  At the VA C&P examination of 12 November 2009, the CI’s blood pressure was controlled with Lisinopril and was 121/72 mm Hg.  The Board’s main charge in respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering Disability Evaluation System fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the hypertension condition.

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 LBP condition, the Board unanimously recommends a disability rating of 40%, coded 5237 IAW VASRD §4.71a.  In the matter of the depression condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the two Category II conditions, sciatic radiculopathy and hypertension, per IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.

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	
Low Back Pain	5237	40%	
Depression	9434	10%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140610, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 15 Jun 15 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 9 Jun 15 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 29 May 15 ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

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 with a 30 percent disability rating (increased from 10 percent) effective date of discharge.

b. XXXXXXXXXXXXXXXXXXXX, former USMC:  Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 0 percent) effective date of discharge.

c. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 50 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.

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel
(Manpower & Reserve Affairs)