RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX 	CASE:  PD-2015-01992
BRANCH OF SERVICE:  NAVY 	SEPARATION DATE:  20040116

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve O-1, Surface Warfare Officer Trainee, medically separated for “low back pain secondary to a herniated nucleus pulposus (HNP) L-5/S-1 on the right with bulging disc at L-4/L-5” with a disability rating of 20%.  

CI CONTENTION:  “Review all conditions.”  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 - 20030602	VARD - 20040519	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain Secondary to HNP L-5/S-1 On The Right With Bulging Disc at L-4/L-5	5293	20%	Herniated Nucleus Pulposus L5-S1	5241	20%	20040317	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Low Back Pain Secondary to a herniated nucleus pulposus (HNP) L-5/S-1 on the Right with Bulging Disc at L-4/L-5.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a history of HNP at L-4/L-5 and L-5/S-1 for which he had a 2-level discectomy in February 1999.  He had a recurrence of low back pain (LBP) since May 2002 after playing basketball.  An MRI of the lumbosacral spine in June 2002 revealed a recurrent small herniation of the L-5/S-1 on the right with a mild bulge at the L-4/L-5 disc.  The CI was treated with physical therapy (PT) nonsteroidal anti-inflammatories, epidural steroid injections and was placed on 8 months of limited duty.  According to neurosurgery, there was no further surgical indication.  

At the 19 November 2002 Pain Management clinic appointment the CI complained of tightness and aching in his back worse with standing and increased activities.  Full range of motion (ROM) was recorded with mild tenderness to palpation.  At the 7 March 2003 neurosurgery consult, the CI continued to complain of leg pain with no significant benefit from the medication for nerve pain.  On examination, there was full strength of the lower extremities.  

The 7 April 2003 MEB NARSUM examination, 9 months prior to separation, noted complaints of paresthesias in the right lower extremity in the L-5 distribution.  Pain was worse with running, prolonged sitting, standing or climbing stairs.  The CI denied muscle weakness.  Physical examination showed decreased lumbar lordosis and full ROM of his back.  There was no spinal tenderness to palpation.  Gait testing noted normal heel and toe walk.  

At the 17 March 2004 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported his back bothered him off and on with radiating pain down his right leg occasionally to his calf.  The CI reported he was not taking any medication at that time.  Physical examination showed a normal spine alignment without swelling or tenderness; however, there was “some spasm” noted in the lower back.  Thoracolumbar ROM measurements showed flexion of 100 degrees (normal 90) and combined ROM of 240 degrees (normal).  Painful motion was not noted.  The CI was able to heel-toe walk without effort and squat and duck walk.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5293 (intervertebral disc syndrome), utilizing the 2003 VASRD criteria in effect at the time of the PEB.  The VA also rated the back condition 20%, coded 5241, (spinal fusion), based on the C&P examination 2 months after separation.  It is noted in this case that the PEB's adjudication was IAW VASRD §4.71a criteria in effect at the time of those proceedings, but a change to the current §4.71a criteria (General Rating Formula for Diseases and Injuries of the Spine) was effected 26 September 2003, in advance of the date of separation.  The panel, IAW DoDI 6040.44, must apply the latter criteria to its recommendation.  There was no limitation of thoracolumbar spine motion to support a higher rating under the General Rating Formula for Diseases and Injuries of the Spine.  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).  Although the CI had intervertebral disc disease, there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  The panel concluded there was no evidence to support a rating higher than that adjudicated by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150716, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record  

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44

      In accordance with reference (a), I have reviewed the cases listed below and 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:

		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN

		
				XXXXXXXXXXXXXXXXXXX
	     				  Acting