RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01646
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20090331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Postal Clerk) medically separated for a lumbar spine condition which could not be adequately rehabilitated to meet the physical requirements of her Rating.  She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The diagnosis “lumbago” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB (IPEB) adjudicated her case as “fit to continue on active duty,” for which she requested a PEB reconsideration that affirmed the IPEB finding of fitness.  The CI then appealed to the Formal PEB (FPEB) which adjudicated “chronic thoracolumbar pain” as Category I: unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no further appeals and was medically separated.  

CI CONTENTION:  The CI made no specific contentions with regard to her Service rated lumbar condition, but referenced current disabilities from other VA rated conditions (fibromyalgia, cervical spine, migraines, depression, and PTSD [post-traumatic stress disorder]).  The 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 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:  

FPEB - Dated 20081113	VA* - (~1 Mo. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Thoracolumbar Pain	5237	10%	Lumbar Vertebral Disc Syndrome	5243	10%	20090224	
			LLE Tibial Neuropathy a/w Above	5243-8524	10%**	20090224	
			RLE Tibial Neuropathy a/w Above	5243-8524	0%**	20090224	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 12 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  50%	
*   Derived from VA Rating Decision (VARD) dated 20090622 (most proximate to date of separation [DOS]).  
** Some of the rating evidence derived from earlier VA exam of 20071011 (17 months pre-separation).
ANALYSIS SUMMARY:    

Thoracolumbar Condition.  The service treatment record (STR) corroborated the history in the narrative summary (NARSUM) of low back pain after a vehicular accident in October 2006 (2½ years pre-separation), although there were STR entries indicating a preceding history of thoracic and lumbar pain.  The pain persisted with occasional complaints of left lower extremity (LLE) pain radiation, but this was inconsistent as other STR entries noted the absence of radicular complaints.  Spine X-rays noted some congenital thoracic scoliosis without other significant findings, and magnetic resonance imaging was normal except for some mild degenerative changes (no disc disease).  There were multiple STR entries confirming normal neurological findings (5/5 strength) with none to the contrary.  Surgery was not recommended and a protracted trial of conservative measures (including epidural steroid injections and selective nerve blocks) was unsuccessful at restoring MOS functionality.  There were numerous STR entries documenting normal, or nearly so, grossly observed and measured range-of-motion (ROM), with no entries indicating significant ROM limitation.  There was STR confirmation of normal gait and spinal contour, and no documentation of incapacitating episodes.  

The NARSUM was conducted 3 January 2008, nearly 15 months pre-separation because of the lengthy appeals process, but there was ample STR evidence (above) which corroborated that the findings were stable from the NARSUM to separation.  The NARSUM documented constant pain (specifically denying radiation or radicular symptoms) rated 3/10 rendering the CI “unable to sit for greater than 30 minutes, stand for greater than 30 minutes, run, or lift greater than 10 pounds.”  The NARSUM physical examination recorded a normal gait, tenderness (no comment regarding spasm), and normal neurological findings.  The NARSUM measured ROM was flexion to 80 degrees (normal 90) and combined ROM of 210 degrees (normal 240), specifying painful motion.  

A VA Compensation and Pension (C&P) examination was conducted 24 February 2009 (1 month pre-separation); and, note is made of a much earlier C&P examination (11 October 2007, 17 months pre-separation) which, as footnoted above, was referenced in the post-separation VA rating.  The earlier C&P examination was conducted by the same contract examiner and yielded nearly identical evidence to that which follows.  The only disparity in evidence probative to rating was some inconsequential differences in neurological findings.  The temporally probative C&P examination documented constant pain (no radiation or subjective weakness) rated 3/10 and listed functional impairment as “restrictions on work, cannot walk around long or run.”  The VA physical examination recorded a normal gait, normal spinal contour, and the absence of tenderness or spasm.  The neurological findings were normal (motor and reflexes) except for a “sensory deficit of the left lateral thigh” which the examiner attributed to the tibial nerve (although this is the left L4/5 dermatome with probable nerve root, not peripheral nerve, origin).  The VA measured ROM was normal in all planes, specifying painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5237 (lumbar strain) was consistent with VASRD §4.71a criteria for the Service ROM evidence and other ratable findings.  The VA’s 10% rating under 5243 (intervertebral disc syndrome) cited painful motion.  The VA’s 10% rating for the LLE radiculopathy cited the C&P sensory findings as above.  There is no ROM evidence supporting a rating higher than 10%, insufficient evidence of gait or spinal contour abnormality in support of a 20% rating, and no documentation of incapacitating episodes which would provide for a higher rating under that formula.   Members considered whether additional rating could be recommended for the LLE radiculopathy identified by the VA shortly before 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 LLE sensory deficit identified by the VA examiner was not corroborated by multiple Service examiners and was perhaps intermittent; but, nevertheless, involved no significant functional implications; and, there was no objective motor deficit in evidence at separation.  There was thus no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy; and, the Board cannot support a recommendation for additional disability rating 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 of the lumbar spine 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 lumbar spine 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.

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 20140415 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 6 Jan 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
- XXXXXXXXXXXXXXXX, former USMC  
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN

						  XXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)