RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01439
BRANCH OF SERVICE:  NAVY 	SEPARATION DATE:  20090211

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Culinary Specialist, medically separated for “chronic low back pain,” with a disability rating of 20%.  

CI CONTENTION:  “L-5 S-1 disc herniation, surgery with little improvement.  Chronic back pain, degenerative disc disease with left and right lumbosacral radiculopathy.”   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 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 Veteran’s Affairs (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 - 20081208	VARD - 20091112	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain S/P Laminectomy and Discectomy L5-S1	5237	20%	Lumbar Degenerative Disc Disease, L5-S1; Status-Post Laminectomy/Discectomy	5243	40%	20090521	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  The narrative summary (NARSUM) notes the CI underwent surgery in March 2007 for lumbar laminectomy with discectomy for disc herniation with impingement on the right S1 nerve root.  Following surgery, the CI reported persistent LBP with radiation to the bilateral lower extremities (LEs).  At the initial physical therapy (PT) evaluation on 23 May 2007, the CI’s back range of motion (ROM) was described as flexion 70% of normal (approximately 60 degrees).  During her post-operative rehabilitation the CI became pregnant in July 2007.  At a PT re-evaluation on 14 August 2007, the CI’s back was described as flexion 90% of normal (approximately 80 degrees), with approximate combined ROM of equal to or greater than 130 degrees (normal 240).  She was placed on bedrest for pre-term labor in December 2007 and delivered twins in March 2008.  

After the pregnancy, lumbar magnetic resonance imaging (MRI) on 2 May 2008 showed degenerative disc disease (DDD) with evidence of prior surgery at L5-S1, “mild” bilateral foraminal stenosis at L4-L5, with no recurrent disc herniation.  At a re-evaluation by neurosurgery in May 2008, 9 months before separation, the CI reported LBP with sharp shooting pain into both LEs, without other neurological symptoms.  The examination noted the CI was in no acute distress with a normal gait and station.  There was no tenderness to palpation (TTP) of the back or palpable spinal deformity.  Muscle tone was normal.  Lower extremity strength, sensation, and reflexes were normal with negative straight leg raise testing to elicit radicular symptoms.  The surgeon noted that there were no new abnormalities noted on the recent MRI, but that the chronic lumbar DDD would be aggravated by strenuous or prolonged physical activities.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for a Medical Evaluation Board (MEB).  The MEB forwarded “displacement of lumbar intervertebral disc without myelopathy” for PEB adjudication.  

At the MEB NARSUM examination (recorded on DD Forms 2807 and 2808) on 23 June 2008, 7 months prior to separation, the CI reported chronic LBP and numbness in her feet.  The examination noted only a well healed midline abdominal scar.  A note dated 21 October 2008 on the Joint Disability Evaluation Tracking System (JDETS) form indicated that the CI was working as a cook, (on her third LIMDU with physical restrictions of no lifting greater than 20 pounds, no sitting or standing for more than one hour at a time without a rest period of 10-15 minutes, no high impact activities including running or jumping and no push-ups or sit-ups).  The JDETS noted the CI missed 2-3 hours weekly.

At the 22 May 2009 VA Compensation and Pension (C&P) evaluation, performed 3 months after separation, the CI reported constant LBP that radiated to the backs of both knees and numbness in all of her toes.  She denied flare-ups, incapacitating episodes, or use of an assistive device for walking.  The CI reported that she required assistance to care for her children due to the back condition and used pain medication with minimal relief.  The physical examination noted a slow, but normal gait.  There was TTP of the low back, without muscle spasm.  Back ROM was flexion of 10 degrees and combined ROM of 45 degrees, with painful motion and there was no additional loss of ROM with three repetitions.  Lower extremity strength and sensation were normal.  

Lumbar MRI in March 2010, 13 months after separation, was similar to previous post-operative MRI, but showed scarring compromising the right S1 nerve root.  Electrodiagnostic studies of the right lower extremity performed on 23 March 2010 did not show evidence of a lumbar radiculopathy.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back condition 20%, coded 5237 (lumbosacral strain).  The VA rated the low back condition 40%, coded 5243 (intervertebral disc syndrome), based on the VA C&P examination 3 months after separation citing “forward flexion of the thoracolumbar spine of 30 degrees or less.”  At the C&P examination, the “low back” ROM was recorded as 10 degrees of flexion.  There was no mention of measurement with a goniometer, as required by the VASRD.  There was no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements.  Physical therapy evaluations after the laminectomy showed flexion of greater than 60 degrees and flexion of 90%.  Following these evaluations the CI was placed on months of bed rest for a twin pregnancy.  When the CI returned to work after childbirth, the CI reported worsening LBP and right leg pain, but there are no ROM evaluations in record from that time period.  A neurosurgical evaluation in May 2008 noted there was no evidence of new abnormalities on MRI and the examination did not note ROM, but was otherwise complete and normal. The CI denied joint pain, stiffness, swelling or weakness of muscles or joints or difficulty walking.  Gait was normal and there was no tenderness.  The ROM values based on subjective pain responses as recorded by the VA examiner were not consistent with a normal gait and with the objective absence of spasm, guarding, or abnormal contour which was documented in the same examination.  The JDETS indicated that the CI was working as a cook within her profile limitations and was only missing 2-3 hours of work per week.  

The Board considered the totality of the evidence and concluded that the disability due to CI’s back condition more nearly approximated the 20% rating.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome.  Although the CI had intervertebral disc disease, there were no incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration under the alternate VASRD formula.  The Board therefore concluded that an additional disability rating was not justified on this basis.  The Board also considered if an additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported radiating pain to both legs, right greater than left.  The MRI findings supported some level of nerve irritation, but examinations proximate to separation noted normal examinations of the lower extremities and the electrodiagnostic studies performed 13 months after separation were normal.  While the CI reported radiating pain from nerve involvement, 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 objective motor or sensory deficits existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified 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 fitness determination for the chronic low back pain condition.

BOARD FINDINGS:  In the matter of the chronic low back 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.  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, 20140320, 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 31 May 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 USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN

							XXXXXXXXXXXXXXXXXXXX	     				  					Assistant General Counsel
							(Manpower & Reserve Affairs)