RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX 	CASE:  PD-2014-01413
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20081107

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-5, Bosun’s Mate, medically separated for a low back condition.  The Informal PEB (IPEB) adjudicated “L4-5 diskogenic syndrome” as unfitting, rated 10%.  

CI CONTENTION:  The applicant contends he suffers from depression, or potentially PTSD.  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 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 PEB - Dated 20080428	VA* - (~8 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L4-5 Diskogenic Syndrome	5237	10%	Lumbar Strain	5237	20%	20090625	
Other MEB/PEB Conditions x 0 	Other x  13	
RATING:  10%	RATING:  80%	
*Derived from VA Rating Decision (VARD) dated 20090804 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY: 

L4-5 Diskogenic Syndrome Condition.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s back condition began in January 2007 after he collided with another team member while playing volleyball.  Lumbar spine X-rays showed some loss of disc space height at L4-5.  MRI studies showed disc degeneration, and disc protrusion and annular tear at L4-5.  There was no significant neuroforaminal impingement.  A surgical option was discussed but reasonably declined by the CI.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for a Medical Evaluation Board (MEB).  The MEB NARSUM exam on 29 January 2008 (approximately 9 months prior to separation) noted complaints of low back pain and intermittent bilateral lower extremity pain that started in his buttocks and radiated into his thighs and both feet.  Lower extremity numbness or weakness was denied.  The physical exam findings are summarized in the chart below.  Muscle spasm, spinal contour or gait was not mentioned.  The Pain Management Addendum on 12 February 2008 noted severe chronic back pain and mild radicular symptoms, but without radiculopathy.  The examiner further noted that the CI had a failed response to steroid injections as well as a spinal nerve block.  At a clinic visit on 8 July 2008 (4 months prior to separation) the CI complained of low back pain radiating to the legs (worse on the right).  Exam showed lumbar spine muscle spasm and an abnormal gait.  At a VA outpatient clinic evaluation on 20 October 2008 (3 weeks prior to separation) the CI reported low back pain that radiated to both legs, with numbness and tingling; but he denied weakness.  Examination showed no vertebral tenderness and normal lower extremity strength.  The Rehabilitation Medicine (PM&R) exam on 10 March 2009 (approximately 4 months after separation) noted complaints of constant, crampy back pain with numbness, and pain that radiated down lower extremities (worse on the left).  Pain was worse with prolonged walking or standing.  The physical exam findings are summarized in the chart below.  Mild left lower extremity muscle weakness was reported at 4 different lumbar nerve root levels.  At the VA Compensation and Pension (C&P) exam on 25 June 2009 (8 months after separation) the CI reported daily pain rated 5/10 and with a flare the pain would increase to 7/10 several times per week.  He denied incapacitating episodes of low back pain since February 2007, and stated that while he was working his back “mainly bothered him when lifting heavy objects.”  The physical exam findings are summarized in the chart below.  Spinal alignment was normal, but muscle spasm and gait were not mentioned.  There was no additional limitation after repetitive motion.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5237 code (lumbosacral strain).  The VA assigned a 20% rating using the same code based on the VA C&P examination approximately 8 months after separation, citing forward flexion of 45 degrees as the rationale.  In deliberating a rating recommendation, Board members considered that the NARSUM and C&P examinations both supported a 20% rating for flexion greater than 30 degrees but not greater than 60 degrees.  However, the PM&R exam justified a 10% rating (for flexion greater than 60 degrees but not greater than 85 degrees).  The Board concluded that the clinical picture described by this evidence more closely approximates the 20% rating.  

The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would support the next higher 40% rating under that formula.  Finally, the Board deliberated if additional disability was justified for possible lower extremity radiculopathy.  The CI complained of radiating pain to the legs and numbness.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  While the CI experienced radiating pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Although the C&P examiner reported mild left lower extremity weakness, all other examiners recorded normal muscle strength and neurologic findings.  The Board concluded there was no evidence of functional impairment on the basis of radiculopathy, and that additional disability was therefore not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the L4-5 diskogenic syndrome 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.  In the matter of the L4-5 diskogenic syndrome condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration. 

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

CONDITION	VASRD CODE	RATING	
L4-5 Diskogenic Syndrome	5237	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 201140318, 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 21 Jan 16 ICO XXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 07 Jan 16 ICO XXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 22 Jan 16 ICO XXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 11 Jan 16 ICO XXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 19 Jan 16 ICO XXXXXXXXXXXXXXX

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

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     e. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 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.

		XXXXXXXXXXXXXXX
		Assistant General Counsel
		(Manpower & Reserve Affairs)