RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX		CASE:  PD-2014-01214
BRANCH OF SERVICE:  NAVY	separation date: 20081228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Master at Arms) medically separated for degenerative disc disease.  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 “other and unspecified disc disorder of lumbar region,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded one other condition (neuralgia neuritis, and radiculitis unspecified) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “degenerative disc disease” as unfitting, rated 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting/Category II (contributing to unfitness).  The CI made no appeals and was medically separated.  

CI CONTENTION:  His 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 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	VA* - (~9 Days Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Disc Disease	5237	20%	Lumbar Strain with Mild Degenerative Changes	5237-5242	10%	20090106	
Lumbar Radiculopathy	Category II					
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 11	
RATING:  20%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20090519 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  The PEB coded the lumbar radiculopathy condition as a Category II condition (“Conditions that contribute to the unfitting condition”).  This condition will be discussed under the unfitting back condition below.  

Degenerative Disc Disease (DDD) with Lumbar Radiculopathy Condition(s):  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s lower back (DDD) condition began in 2002 and progressively worsened.  The CI denied any specific injury or trauma.  Radiographs documented disc degeneration at L5-S1 with a persistent fissure or tear with minimally progressive left paracentral disc protrusion that contacted the left S1 nerve root.  The radiographs, an MRI done in June 2007 showed a diffuse disc bulge at L5-S1 without nerve root contact, minimal disc bulging at L4-5 and degenerative changes of the spine and a repeat MRI done in March 2008 showed degeneration at L5-S1 with a persistent fissure or tear with minimally progressive left paracentral disc protrusion that contacted the left S1 nerve root.  At the time of the Pain clinic appointment on 2 July 2008, the CI reported leg, foot and back pain.  Back pain was 7/10, bilateral and constant.  Leg pain was intermittent, bilateral, sharp and radiated to the buttocks, posterior thighs and right foot.  There was no report of weakness, foot drag or foot drop.  Despite aggressive physical therapy (PT), Pain management and Orthopedics evaluations; transforaminal epidural steroid injections and discography, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for a Medical Evaluation Board (MEB).  

The MEB NARSUM exam on 21 July 2008 approximately 5 months prior to separation noted complaints of pain that varied in intensity and was worsened by walking or standing for greater than several minutes.  Surgery was not indicated following neurosurgery evaluation.  The physical exam findings are summarized in the chart below.  Exam documented a non-tender back with range-of-motion (ROM) “restricted at approximately 75%.  The (CI) is able to reach proximal shins with flexion.”  Extension was normal and twisting/bending were “75%.”  Straight leg raise (for radicular symptoms) was positive on both sides with pain radiating into the buttocks.  Motor strength and sensory exam were normal.  Reflexes of both knees and ankles reduced.  The CI was taking narcotic pain medication and was being evaluated for an implanted spinal cord stimulator (neuromodulator for pain control).  

At the VA Compensation and Pension (C&P) exam performed 10 days after separation, there was no complaint of back symptoms.  Exam showed a normal gait and posture and normal appearing spine.  There was tenderness without spasm and painful motion to flexion 90 degrees (normal) and combined 240 degrees (normal).  There was increased pain, fatigue and lack of endurance on repetition without additional ROM limitation.  Motor, sensory, and reflex exams were normal and straight leg testing was negative.  “There were no signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement.”  Lumbar spine X-rays were normal.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under the coding 5237 (lumbosacral strain).  The VA assigned a 10% rating under the coding 5237 with 5242 (degenerative arthritis of the spine), citing painful motion and tenderness that did not result in an abnormal gait.  The VA exam had the highest probative value for rating as it was closest to the date of separation.  The VA exam showed evidence of tenderness and painful motion which met the 10% rating.  The Board therefore, did not find evidence which would justify a rating higher than that assigned by the PEB. 

There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  
There was no ankylosis of the thoracolumbar spine or evidence that thoracolumbar spine forward flexion approached 30 degrees or less to support any rating higher than the 20% assigned by the PEB.  There was no associated non-pain radiculopathy for separate peripheral nerve rating.  Although the CI experienced radiating pain, there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There is no evidence in this case that there was radiculopathy with associated functional impairments separately functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  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 DDD condition, and no separately ratable radiculopathy.  

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.  In the matter of the degenerative disc disease with lumbar (pain-only) radiculopathy condition(s) and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  

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 20140224, 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 1 Feb 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:

- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN   
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 

		XXXXXXXXXXXXXXX
	     	Assistant General Counsel
		(Manpower & Reserve Affairs)