RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03704
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20021015

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Mine Hunting Sonar Set Operator, medically separated for “musculoskeletal low back pain with herniated nucleus pulposus L5-S1 without radiculopathy,” with a disability rating of 10%.

CI CONTENTION:  “Please consider all conditions.”  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 based on 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 - 20020904	VARD - 20030415	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Musculoskeletal Low Back Pain With Herniated Nucleus Pulposus L5-S1 Without Radiculopathy	5295	10%	Low Back Pain with Herniated Nucleus Pulposus L5-S1	5295	20%	20030319	
Mixed Headaches	Cat III	Migraine Headaches	8100	NSC	20030319	
Passive-Aggressive Traits	Cat IV	No VA Placement	
Phase of Life Problem	Cat IV	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s LBP condition began in October 2001 without any specific injury or trauma and had been ongoing for approximately 1.5 to 2 years.  Magnetic resonance imaging (MRI) dated 1 October 2001 revealed Tarlob CSF (cerebral spinal fluid) cysts (meningeal cysts) extending from the second through the third sacral segments with minimal erosion of the adjacent cortex.  It was considered an otherwise negative study   representing an incidental finding and was not considered of clinical significance.  An MRI performed on 12 October 2001, revealed significant evidence of degenerative changes within the lumbar region with a slight narrowing of the disc space at L4-L5 and central disc protrusion and a disc protrusion at the L5-S1 nerve root with some degree of extrusion with “impression upon the thecal sac “butting” against the right L5 nerve root.”  A myelogram (to study the spinal cord) dated 3 December 2001 demonstrated a very large intra-sacral canal dilatation of the dural sac into an internal meningocele (a protrusion of the membranes covering the spine through a gap in the spine) measuring 4.5 to 5 cm by 7 cm.  Conservative treatment included epidural steroid injections, physical therapy and a second opinion from a spine specialist who recommended conservative management of the CI’s back problem.    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 an MEB.  The MEB forwarded “musculoskeletal low back pain,” “herniated nucleus pulposus L5-S1 without radiculopathy,” “frequent migraine headaches without aura,” and “predominant tension headaches” for PEB adjudication.

At the MEB examination (recorded on DD Form 2807) dated April 2002, 6 months prior to separation, the CI reported a diagnosis of a herniated disk.  No physical examination (DD Form 2808) was available for review; however the examiner noted on the DD Form 2807 that the CI had a herniated nucleus pulposus (HNP), recurrent back pain, and numbness of feet on the plantar surfaces and toes for approximately a year.  The MEB NARSUM examination on 22 May 2002 (5 months prior to separation) noted complaints of low back pain and numbness in bilateral feet.  The physical examination revealed no specific tenderness in the paraspinal muscles of the low back.  The CI had a negative bilateral straight leg raise test (to determine nerve root irritation).  The lumbar contour was within normal limits.  The examiner further noted the CI failed all conservative treatment modalities and was not a surgical candidate and opined the CI’s condition was likely to worsen over time. 

At the VA Compensation and Pension (C&P) examination in March 2003, performed 5 months post-separation, the CI reported his back began to hurt after basic training.  The physical examination showed mid and lower back tenderness of the paravertebral muscles.  There was no evidence of muscle atrophy.  The examiner noted that a neurosurgeon had suggested back surgery but the CI had chosen not to proceed.  The CI’s back pain, which was treated with hydrocodone (a narcotic), was also associated with bilateral leg pain extending to his thighs with some tingling of his feet.         

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5295 code (lumbosacral strain) for musculoskeletal low back pain with herniated nucleus pulposus L5-S1 without radiculopathy.  The VA assigned a 20% rating using code 5295 for low back pain with HNP L5-S1.  The Board noted the flexion measurements in the NARSUM at approximately 30 degrees and the VA C&P at 50% of normal (45 degrees).  There was clearly limitation of motion, which raised the option of the use of code 5292 (limitation of motion of the lumbar spine).  Board members discussed and agreed the limitation of motion (bending at the waist) could be rated in accordance with that code, which reflects a measurement of segmental motion in the lumbar area.  The members then considered whether either or both of the ROMs represented either a moderate or severe limitation of motion.   The NARSUM examination was closer to a severe limitation of motion, while the VA examination was more consistent with a moderate limitation of motion and both examinations were within 5 months of separation, the NARSUM being pre-separation and the VA examination being post-separation.  Neither examination was accurate within the meaning of VASRD §4.46; therefore, Board members discussed which of the two examinations had more probative value.  The Board also considered use of code 5293 (intervertebral disc syndrome) in the presence of an HNP proximate to the L5 nerve on MRI, but the CI did not have a neuropathy involving a motor component or neurological symptoms of significance to warrant a rating of more than a moderate rating at 20%.  Additionally, the Board discussed the sacral pathology, but felt it did not comport well enough to be used with code 5294 (sacroiliac injury and weakness).  A separate rating for radiculopathy was discussed, but it was felt not to be warranted in the absence of objective signs of motor or sensory deficits.  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 low back pain condition, coded 5292.  

Contended PEB Conditions:  Mixed Headaches, Passive Aggressive Traits, and Phase of Life Problems.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended not unfitting conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  No limited duty documentation was available for review; however, the non-medical assessment (NMA) dated 11 June 2002 indicated the CI was on limited duty for 8 months with physical limitations of no prolonged sitting/standing, no lifting or running.  The NMA further noted the CI had been treated for migraine headaches since a myelogram was conducted.  The passive aggressive traits and phase of life problems were not mentioned in the NMA.  The headaches were determined to be a Navy Category III condition (a condition that is not separately unfitting and does not contribute to the unfitting condition(s)), while the passive aggressive traits and phase of life problems were Navy Category IV conditions (conditions which do not constitute a physical disability).   There was no performance-based evidence from the record that the conditions significantly interfered with satisfactory duty performance at separation.  

Mixed Headaches.  At a neurological consultation dated 2 July 2002, the CI stated he had a myelogram for persistent low back pain, and later on, he became concerned about having post lumbar puncture headaches.  He described a pressure-type pain in both temples that radiated to the frontal regions.  There were no auras nor did the headaches awaken him from sleep.  An MRI of the brain showed small, non-specific white matter high signal areas at both occipital regions that could be seen in the context of severe migraines due to microinfarcts (tissue damage due to limited blood supply).  Imitrex (sumatriptan, a migraine headache abortive medication) and Duradrin (a combination of acetaminophen, dichloralphenazone, and isometheptene to relieve pain, tension and migraine headaches) did not improve his symptoms.  The diagnosis of migraine and tension headaches was made and the CI was started on amitriptyline (for nerve pain and an antidepressant), which the neurologist opined would also help his mild depression and insomnia as well.  The CI was to be seen in follow-up in 4-6 weeks.  

Passive Aggressive Traits and Phase of Life Problems.  The CI experienced several stressors and expected a Medical Board for his back problem.  He also had family concerns and difficulty falling asleep.  His mental status examination was normal with his mood as “alright” and the affect was congruent to context and varied with a normal range and he denied suicidal and homicidal thoughts, plans, intent and history.  

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 contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the low back pain condition, the Board majority recommends a disability rating of 20%, coded 5292 IAW VASRD §4.71a.  In the matter of the contended mixed headaches, passive aggressive traits and phase of life problems 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5292	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140711, 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 29 Apr 16 ICO XXXXXXXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 21 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 29 Apr 16 ICO XXXXXXXXXXXXXXXXXXXX 
	(e) PDBR ltr dtd 17 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 16 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX

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

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

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

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

     c. XXXXXXXXXXXXXXXXXXXX: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge. 

     d. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective date of discharge. 

     e. XXXXXXXXXXXXXXXXXXXX, 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.
	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)