RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01849
BRANCH OF SERVICE:  NAVY 	SEPARATION DATE:  20041020

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Photographer’s Mate, medically separated for “degenerative disk at L5-S1 and … L4-5,” with a disability rating of 10%.  

CI CONTENTION:  “My medical conditions were never corrected before separation.  The pain has increased over the years making even simple things difficult.  My disability rating was recently upgraded from 20% to 50%.”  The CI asked also asked that all conditions be reviewed.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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(s) at the time of separation.  The panel 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 panel 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 - 20040820	VARD - 20050321	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Disk at L5-S1 and …  L4-5	5237	10%	Degenerative Disc Disease, Lumbar Spine, With Protrusion of the L4 and L5 and L5 to S1	5242	20%	20041105	

ANALYSIS SUMMARY:  

Degenerative Disk at L5-S1 and L4-5.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s lower back pain (LBP) condition began in April 2003 with no noted injury or trauma.  Although not mentioned in his entry physical in November 2000, the NARSUM noted that the CI had a well healed surgical scar in his lower back and had undergone a disk laminectomy in 1988, prior to service.  On 5 May 2003 x-ray studies showed normal cortical margins and alignment with narrowing of the L5-S1 intervertebral disk space.  The remaining intervertebral disk spaces were well preserved.  The CI continued to experience severe back pain, including two emergency room visits in May and June of 2003.  Magnetic resonance imaging (MRI) studies of the lumbar spine on 11 July 2003 revealed changes at both L4-L5 and L5-S1 as well as decreased disc height at L5-S1.  

At the time of the orthopedic clinic visit on 16 July 2003, the CI stated he had severe, unremitting pain with paresthesias, spasms, and weakness radiating into his buttocks and hamstrings.  The examiner documented a stiff, limping gait; muscle spasm, and tenderness to palpation of the paraspinal muscles.  There was normal (5/5) motor strength and reflexes in the lower extremities.  Range of motion (ROM) was reported as forward flexion with fingertips to 18 inches from the floor (approximately 45 to 60 degrees) with pain, with extension, rotation, and lateral bends all “ok.”  The diagnosis was recurrent herniated disk at L5-S1 with right progressive S1 radicular symptoms, and the clinician recommended limited duty for 8 months.  

The 23 February 2004 MEB NARSUM examination, 8 months prior to separation, noted complaints of back and right leg pain (90% back and 10% leg) with accompanying numbness in the right thigh and leg, exacerbated by prolonged sitting, standing, or twisting and alleviated when remaining still or lying on his side.  The CI did not report any periods of physician-prescribed bed rest during the previous 12 months.  Physical examination showed a well healed surgical scar, normal gait, and full strength in all tested lower extremity muscle groups as well as normal sensation.  The examiner did not provide ROM measurements and was silent regarding spinal contour, muscle spasm or guarding, and tenderness.  

At the 5 November 2004 VA Compensation and Pension (C&P) evaluation, 2 weeks after separation, the CI reported stabbing LBP every 2-3 days of a severity between 6 and 9 out of 10, with pain and tingling in his right buttock and posterior leg.  He stated he had flare-ups of back pain once every two weeks, lasting 2-3 days, with precipitating factors being unknown.  He had occasionally used a back brace without much relief.  The CI reported approximately 15 days of incapacitation within the past 12 months.  Physical examination showed a normal gait and posture, no localized tenderness, no visible muscle spasm, and no swelling.  Thoracolumbar ROM measurements were forward flexion of 40 degrees (normal 90) and combined ROM of 145 degrees (normal 240) with painful motion noted.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5237 (lumbosacral strain), and noted a 0% reduction for EPTS (existed prior to service).  The VA rated the LBP condition 20%, coded 5242, (degenerative arthritis of the spine), based on the C&P examination 2 weeks after separation, citing limitation of motion of 40 degrees of forward flexion and an incapacitation of approximately 15 days within the past 12 months.  

The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as reported on the VA examination proximate to separation, and which was consistent with other findings in the STR.  The panel considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  The evidence showed the CI had IVDS and a statement in the VA C&P exam stated that the CI experienced incapacitating episodes over a 12 month period of at least 2 weeks, but less than 4 weeks, supporting no higher than a 20% rating.  Even were incapacitation (physician-prescribed bedrest) conceded, this would not result in a higher than the 20% rating based on limitation of motion.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the LBP condition, coded 5242.  

BOARD FINDINGS:  In the matter of the LBP condition, the panel unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  The panel 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	
Degenerative Disk at L5-S1 and L4-5	5242	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150706, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs)
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 17 Jan 17 ICO XXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 17 Dec 17 ICO XXXXXXXXXXXXXXXXXX   
	(d) PDBR ltr dtd 20 Sep 17 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 Oct 17 ICO XXXXXXXXXXXXXXXXXX 
	(f) PDBR ltr dtd 31 Jul 17 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 07 Dec 17 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (g) are approved.  The official records of the following individuals are to be corrected as follows:

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

     b. XXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge.

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

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

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

     f. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 
     
2.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.

                                  	XXXXXXXXXXXXXXXXXX
                                 	Acting