RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01605
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20091126

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E6, Equipment Operator, medically separated for “low back pain herniated discs,” with a disability rating of 20%.

CI CONTENTION:  The CI believes the wrong back condition was rated.  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 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 - 20090904	VARD - 20091010	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain Herniated Discs	5237	20%	Degenerative Changes Of The Cervical …..	5003	10%	20090527	
L5/S1 Small Central Herniated Nucleus Pulposus	Cat II	No VA Placement	
Right Sided L5 Spondylolysis			
Right L4/5 Paracentral Disk Herniation with Subarticular Stenosis			
Lumbago			
Depressive Disorder	Cat III	Adjustment Disorder	9440	deferred	20090527	
PTSD						
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS: 1 0%	

ANALYSIS SUMMARY:  

Low Back Pain Herniated Discs Condition.  According to the service treatment records (STR) and MEB narrative summary (NARSUM), the CI’s low back pain began during deployment to Iraq from 2004-2005.  He was diagnosed with a right inguinal hernia and underwent surgery in-theater.  Symptoms did not improve and he did not report the continued back pain for fear of being placed on medical hold.  The CI was reactivated in 2006 and reported recurrent episodes of severe back pain with radiation to the lower extremities.  Magnetic resonance imagining (MRI) of the lumbar spine dated 6 March 2009, showed some mild to moderate abnormalities.  A neurosurgery consultation on 6 May 2009 noted the CI was not a surgical candidate.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for a MEB.  The MEB forwarded “lumbago, displacement of intervertebral disc, site unspecified, without myelopathy” for PEB adjudication.

The MEB NARSUM examination on 6 May 2009 (7 months before separation), noted that the CI reported occasional throbbing and aching pain over the right groin and testicle, and back pain radiating down the right leg.  Symptoms were worse with bending, twisting or lifting.  He denied any alleviating factors except for stretching or taking his time.   Physical examination documented normal gait, and sensory function was intact except for “very mild hypesthesia” along the medial border of the right foot arch.  Straight leg raise (SLR) testing was negative with normal motor strength (5/5) and “normal” range of motion (ROM).  The CI was able to sit, stand, and walk without apparent pain.  The examiner assessed lumbago, right L4-5 paracentral disk herniation, L5/S1 small central herniated nucleus pulposus and right sided L5 spondylolysis. Physical therapy ROM measurements for the MEB recorded flexion to 52 degrees and extension to 10 degrees.

At the VA Compensation and Pension (C&P) examination dated 27 May 2009 (6 months before separation), the CI reported “constant” pain in the right low back, right groin, and right leg, accompanied by stiffness and numbness; he denied any incapacitation.  Physical examination showed negative SLR testing on both sides; tenderness to palpation and spasms were absent.  Recorded ROM was flexion to 90 degrees (normal) and extension to 30 degrees (normal 20) with no further limitation with repetitive motion.  The examiner documented that there were no signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition at 20%, coded 5237 (lumbosacral strain).  The VA assigned a 10% rating coded 5003 (degenerative arthritis of the cervical and thoracolumbar spines) based on the VA C&P examination 6 months before separation, for multiple joints without limitation of motion or painful motion.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion greater than 30 degrees but not greater than 60 degrees.  The Board considered whether a higher rating (§4.7) was achieved by using the 5243 code based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  However, there were no incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the IVDS formula. The Board acknowledged the CI’s report of radicular symptoms; however, there was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  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 low back pain condition.

Contended PEB Conditions.  The Navy PEB listed the L5/S1 small central herniated nucleus pulposus, right sided L5 spondylolysis, right L4/5 paracentral disk herniation with subarticular stenosis and lumbago conditions as Category II diagnoses contributing to the back disability in this case.  The Board noted that these conditions were related diagnoses to the underlying diagnosis causing the low back pain and were not conditions that could be separately rated IAW VASRD §4.14 (avoidance of pyramiding). 

Members agreed that the Category III depressive disorder and post-traumatic stress disorder (PTSD) conditions could reasonably be considered within the Board’s scope of review since the second page of the CI’s DD294 contention was not in evidence.  The Board’s main charge is to assess the fairness of the PEB’s determination that these conditions were not unfitting.  The The Board reviewed the available treatment records relating to mental health and noted the in-service PTSD diagnosis was identified while the CI was in the MEB process, although he reported he had received civilian treatment after returning from deployment.  The initial psychology clinic evaluation dated 4 June 2009, 5 months before separation, recorded the diagnoses of PTSD and depression.  Three weeks later, an MEB addendum prepared by a psychologist, recorded that the CI’s condition was stable and that he was newly engaged in treatment.  The psychologist stated, “In its present form, his condition is not well suited for continued military service.”  At the psychology follow-up appointment on 6 August 2009, the examiner noted that despite ongoing symptoms, the CI had shown himself capable of adequate functioning at work and appeared fit for full duty from a psychological standpoint.  The PTSD and depressive disorder conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.   There was no performance based evidence from the record that any mental health condition significantly interfered with satisfactory duty performance.  After due deliberation, and 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 PTSD and depressive disorder conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended L5/S1 small central herniated nucleus pulposus, right sided L5 spondylolysis, right L4/5 paracentral disk herniation with subarticular stenosis, and lumbago Category II conditions; and the post-traumatic stress disorder and depressive disorder Category III conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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, dated 20140304, 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)