RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01225
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20090730

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, SNAPIII System Administrator, medically separated for “left L5/S1 herniated nucleus pulposus with radiculopathy,” with a disability rating of 20%.

CI CONTENTION:  “Review 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 upon a 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 - 20090616	VARD - 20150312	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left L5/S1 Herniated Nucleus Pulposus with Radiculopathy	5243	20%	Degenerative Disc Disease…	5243	10%	20150309	
Residual Pain Postoperative	Cat II					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Left L5/S1 Herniated Nucleus Pulposus with Radiculopathy.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in November 2006 while engaged in combat training.  Shortly after, the CI was mobilized for a 6-month deployment.  Conservative treatment was unsuccessful in the interim.  On 20 October 2007, the CI underwent a left L5/S1 partial hemilaminectomy and discectomy and placed on light duty.  Leg pain improved, but hamstring tightness and sciatic pain continued with bending and stretching.  Radiographic studies March 2008, showed good lumbosacral alignment, degenerative disk changes at L5/S1, and scar tissue around the left S1 nerve root.  Despite treatment, the CI could not tolerate running or prolonged standing without pain.  The MEB forwarded “displacement of lumbar intervertebral disc without myelopathy other chronic post-operative pain” for PEB adjudication.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated February 2009, 5 months prior to separation, the CI reported pain with occasional radicular symptoms.  No bowel or bladder dysfunction reported.  Physical examination showed equal strength and sensation, deep tendon reflexes +2/+2, negative Romberg test (neurological function), and heel to shin test normal (coordination).  The MEB NARSUM examination on 6 February 2009, 5 months prior to separation, noted complaints of intermittent buttock and posterior side pain with prolong standing or sitting.  The CI was prescribed Mobic (analgesic, nonsteroidal anti-inflammatory drug) for pain control.  Physical examination showed 5/5 strength both legs, mildly positive left straight leg raise (herniated disc test), and slight positive cross straight leg raise (herniated disc test).  Sensory to both legs was intact to light tough.  Deep tendon reflexes were 2.  Gait and heel-toe walking were intact.  No tenderness to palpation noted.  CI was able to bend to his toes.  At the 9 March 2015 VA Compensation and Pension (C&P) evaluation, performed 5 years and 7 months after separation, the CI reported radicular pain to the left foot with tingling, numbness, and weakness in the leg.  The right leg had been asymptomatic for two years.  No flare-ups reported.  Ibuprofen used for pain.  CI details functional problems with lifting, bending, twisting, prolonged standing, sitting, and ambulation.  Radicular pain was reported as constant to intermittent to the left lower extremity.  Paresthesias and numbness was reported to the right and left lower extremities.  No bladder or bowel dysfunction reported.  Physical examination showed muscle strength 5/5 to lower extremities, deep tendon reflex 2+, sensation to light touch normal, and straight leg raise positive.  The range of motion (ROM) examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	MEB ~6 Mos. Pre-Sep
	PT ~5 Mos. Pre-Sep
	PCC ~2 Mos. Pre-Sep
	PT ~1 Mos. Pre-Sep
	VA ~5 Yr 7 Mos. Post-Sep
	
Flexion (90 Normal)	~80-90	(30) 32	80	(30) 32	0-65	
§4.71a Rating	0%	40%	10%	40%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5243 (intervertebral disc syndrome).  The VA rated the lower back condition 10% coded 5243 (intervertebral disc syndrome), based on the VA C&P examination 5 years and 7 months after separation, citing incapacitating episodes (one week but less the past 12 months), range of motion, normal gait, and normal spinal contour.  

The Board agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees reported on the physical therapy examinations on 12 March 2009, 5 months prior to separation and 8 June 2009, 1 month prior to separation.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  The Board therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the lower back condition, coded 5243.  

Contended PEB Conditions:  Residual Pain Postoperative.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The Category II diagnosis of residual pain postoperative is intrinsic to the rated condition and a separate rating cannot be supported without pyramiding (VASRD §4.14); thus, it is appropriately subsumed in the same rating.

BOARD FINDINGS:  In the matter of the lower back condition, the Board unanimously recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended residual pain postoperative condition, the Board unanimously recommends no change from the PEB determination 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left L5/S1 Herniated Nucleus Pulposus with Radiculopathy	5234	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150608, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 25 Nov 16 ICO XXXXXXXXXXXXXXXXXX    
	(c) PDBR ltr dtd 19 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 19 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 17 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 25 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 19 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 19 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 17 Nov 16 ICO XXXXXXXXXXXXXXXXXX

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. XXXXXXXXXXXXXXXXXX, former USN: Effective date of discharge, retroactive placement on the Temporary Disability Retired List with a 50 percent disability rating for six months, followed by a final disability rating of 10 percent. 

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

     c. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 60 percent disability rating (increased from 10 percent) effective date of discharge.  

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

     e. XXXXXXXXXXXXXXXXXX, former USN: Effective date of discharge, entitlement to disability severance pay with a 20 percent disability rating (increased from 10 percent).   

     f. XXXXXXXXXXXXXXXXXX, former USN: Effective date of discharge, entitlement to disability severance pay with a 20 percent disability rating (increased from 10 percent).  

     g. XXXXXXXXXXXXXXXXXX, former USN: Effective date of discharge, entitlement to disability severance pay with a 20 percent disability rating (increased from 0 percent).

     h. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 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.