RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00668
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20060130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Navy Law Enforcement Specialist, medically separated for “low back pain,” with a disability rating of 10%.

CI CONTENTION:  The CI requested the Board consider all conditions.  His 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 -20051117	VARD - 20060722	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	Lumbar Sprain	5237	10%	20060501	
Cervicalgia	Category II	Cervical Strain	5237	0%	20060501	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain began in October 2003 as the result of a motor vehicle accident (MVA).  Radiographic studies of the lumbar spine taken in December 2003 were normal.  According to the MEB NARSUM and STR, neck and back pain interfered with the ability to perform duties as a law enforcement specialist however he had not missed work.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “back ache” and “low back pain” for PEB adjudication.  At the 11 July 2005 MEB examination (recorded on DD Forms 2807 and 2808), 7 months prior to separation, the CI reported constant back pain resulting from the MVA.  The MEB NARSUM examination on 29 July 2005, 7 months prior to separation, noted complaints of back pain.  The CI denied any neurological, bowel, or bladder incontinence symptoms.  On physical examination the lumbar spine was non-tender.  Range of motion (ROM) was not noted.  At the 1 May 2006 VA Compensation and Pension (C&P) evaluation, performed 3 months after separation, the CI reported “aching” lower back pain with moderate stiffness and no radiculopathy.  The CI reported he was able to walk about ¼ mile.  Physical examination showed normal posture, gait and no ankylosis.  Following repetitive motion, the lumbar ROM was flexion 67 degrees, and extension 15 degrees with pain at end of the ROM.  Combined ROM (including lateral bending and rotation) was 190 degrees (normal 240).  Lower extremity strength and reflexes were normal, and testing for signs of radiculopathy was negative.  Sensation was normal.  X-ray examination of the lumbosacral spine was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain 10%, coded 5237 (lumbosacral strain).  The VA also rated the low back pain 10%, coded 5237 (lumbosacral or cervical strain), based on the VA C&P examination 3 months after separation, citing limitation of forward flexion.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and a combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the VA examination proximate to separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome (IVDS) resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula for that condition.  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.  

Contended PEB Conditions:  Cervicalgia:  The Navy PEB listed the cervicalgia condition as a related diagnosis (Category II) that contributed to the disability in this case.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not separately unfitting.  According to STR and the MEB NARSUM, the CI’s neck pain began in October 2003 as the result of an MVA.  Radiographic studies of the cervical spine taken in December 2003 showed mild degenerative end plate change at the C6 and an otherwise normal examination.  According to the MEB NARSUM and treatment records, neck and back pain interfered with the ability to perform duties as a law enforcement specialist however he had not missed work.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  Physical restrictions included no wearing of a helmet.  The Board considered whether the evidence of the record supported a conclusion that the cervicalgia condition was separately unfitting.  The Board noted that the cervicalgia and low back pain conditions were the result of the same MVA and that both conditions received clinical attention and treatment throughout the course leading to the MEB.  Service treatment records and the MEB NARSUM stated there was an inability to perform duties as a law enforcement specialist due to both conditions without any indication that one condition was more severe than the other.  Board members agreed that the evidence of the treatment record reasonably justified that the functional limitations of the cervical spine condition separately contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  The MEB NARSUM examination on 29 July 2005, 7 months prior to separation, noted complaints of “constant and aching” pain of the neck and thoracic spine at a 5/10 intensity.  The CI denied any neurological, bowel, or bladder incontinence symptoms.  Physical examination showed “full range of motion of the neck” including left and right rotation as well as flexion and extension.  Tenderness was noted along the left paraspinal area in the C5, C6 region.  Upper extremity strength and reflexes were normal.  Spurling’s test (for radiating pain due to nerve compression) was negative.  At the time of the 12 April 2006 general medical VA C&P examination, the examiner noted “cervical neck pain with decreased ROM.”  There was no muscle atrophy or spasm.  Reflexes and strength were normal.  The CI reported paresthesias of the hands and feet however sensory examination on 1 May 2006 was normal.  At the 1 May 2006 C&P spine examination, performed 3 months after separation, the CI reported “stabbing” cervical pain and stiffness.  There were no radiating symptoms.  The examiner noted a complaint of weak hands.  Physical examination showed normal posture, head position, and gait.  There was no muscle spasm of the cervical muscles.  Strength of the arms and hands was recorded as normal (5/5). Sensation was normal to light touch, pinprick, position and vibration.  A ROM examination was not included and the CI did not show for a follow-up examination.  X-rays of the cervical spine noted mild degenerative changes with normal alignment and vertebral body heights.  A C&P examination 29 August 2007, 19 months after separation, recorded cervical spine flexion of 40 degrees with a combined ROM of 220 degrees.  There was no change with repetitive movement.  There was no muscle spasm and the neurologic examination was normal.  

The Board directed attention to its rating recommendation based on the above evidence.  Although there was insufficient limitation of motion to support a minimum rating at the time of the MEB examination (full ROM), the Board agreed a 10% rating was justified for the presence of painful motion, tenderness, and functional loss.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of IVDS resulting in incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concludes the cervicalgia condition was separately unfitting and recommends a disability rating of 10%, coded 5237 (cervical strain).

BOARD FINDINGS:  In the matter of the low back pain and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended cervicalgia condition, the Board unanimously agrees that it was separately unfitting and recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  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	5237	10%	
Cervicalgia	5237	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150604, with attachments
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 19 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX   
	(c) PDBR ltr dtd 20 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 26 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 19 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 16 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 29 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 20 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX

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

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective date of discharge.  

     b. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.  

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

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

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.  

     f. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 20 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)