RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02201
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150203
SEPARATION DATE:  20050609

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-6 (Master-at-Arms) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The “lumbar sprain” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic lumbar strain” as unfitting, rated 20%.   The CI appealed to the Formal PEB, which affirmed the PEB finding and rating and was medically separated.

CI CONTENTION:  “Please review all conditions.”

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 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:

Reconsideration IPEB – dated 20070427	VA* – (~34 months Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Lumbar Strain	5243	20%	Chronic Lumbar Strain	5237	10%	20100716	
			Radiculopathy, Left Lower Extremity	8520	10%	20100716	
			Radiculopathy, Right Lower Extremity	8520	10%	20100716	
Other x 0 (Not In Scope)	Other x 7	
RATING:  20%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20101213 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Low back pain (LBP).  In early 2006, this CI fell and injured his back.  Magnetic resonance imaging showed mild degenerative disc disease with disc bulges at L4-L5 and L5-S1, but no evidence of nerve root compression or spinal stenosis (narrowing).  He was treated with multiple treatment modalities including physical therapy (PT) and epidural injections.  However, the back pain persisted and an MEB was initiated.  The MEB physical evaluation was performed by a neurologist in August 2006.  The CI complained of constant pain in the lower back, right worse than left, with occasional radiation to the buttocks.  He reported difficulty with sitting longer than 15 minutes, or standing longer than 30 minutes.  On physical examination of the lower back, there was tenderness to palpation (TTP) of the right lumbar paraspinal muscles.  The CI was able to heel walk and toe walk.  His gait was normal and straight leg raise was negative.  Neurological exam was normal.  Range-of-motion (ROM) was decreased, but actual measurements were not done at that time.  In March 2007, thoracolumbar ROM was measured by PT, and those measurements are summarized in the chart below.

The CI was medically separated from service on 21 September 2007.  Thirty-four months later, in July 2010, he had a VA Compensation and Pension exam.  He was working full-time as a police officer, and reported that his back pain was constant.  On examination, his posture and lumbar spine curvature were normal.  There were no spasms, and no TTP.  Neurological exam was normal.  Thoracolumbar ROM was normal, but there was pain with motion.  The ROM evaluations which the Board weighed in arriving at its recommendation are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~6 mos. Pre-Sep
(20070323)	VA C&P ~ 34 mos. Post-Sep
(20100716)	
Flexion (90 Normal)	40	90	
Combined (240)	110	240	
Comment	Pain with motion	Pain with motion	
§4.71a Rating	20%	10%*	
 *10% rating based on VASRD §4.40 (Functional loss), and §4.59 (Painful motion)

The Board carefully reviewed all available evidence, and directed attention to its rating recommendation.  The Board noted the disparity in the ROM exams documented above.  The March 2007 ROM measurements were closer to the DOS, and therefore carried greater probative value.  At that exam, thoracolumbar forward flexion was 40 degrees, and combined thoracolumbar ROM was 110 degrees.  IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.71a, a 20% rating is warranted when thoracolumbar forward flexion is greater than 30 degrees, but not greater than 60 degrees.  A 20% rating is also warranted when combined thoracolumbar ROM is not greater than 120 degrees.

After a thorough review of the evidence, the Board determined that a disability rating of 20% was appropriate.  The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling spine condition which would justify a rating higher than 20%.  The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  The CI had neurological symptoms, but there was no performance-based evidence that the neurological condition impacted his military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication of the chronic back pain condition (“Chronic lumbar strain, following back injury”).

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 chronic back 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 20140513, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

				
XXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION 
Ref:	(a) DoDI 6040.44
(b) CORB ltr dtd 10 Jun 15

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 USMC
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel (Manpower & Reserve Affairs)