RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00554
BRANCH OF SERVICE:  navy	SEPARATION DATE:  20040617

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Aircraft Mechanic, medically separated for “lumbar disk herniation” with a disability rating of 20%.  

CI CONTENTION:  The VA gave him a higher rating.  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 - 20040324	VARD - 20050311	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Disk Herniation	5243	20%	Post-Operative Residuals of Lumbar DDD	5243	0%	STR	
Lumbar DDD	Cat II					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Lumbar Disk Herniation.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent discectomy and laminectomy (second back surgery) in March 2003 for recurrent herniated disc at L5-S1 and degenerative disc disease (DDD).  The CI was subsequently offered lumbar fusion, but reasonably declined.  

The 9 January 2004 MEB NARSUM examination, 5 months prior to separation, noted complaints of back pain radiating to the left thigh.  Physical examination showed full strength in both lower extremities, grossly intact sensation in both feet, and symmetric reflexes.  Range of motion (ROM) was recorded as flexion “to approximately 30 degrees” (normal 90) and extension to “approximately 10 degrees” (normal 30).  No ROM measurements were provided for the other planes of motion.  There was no VA examination proximate to separation in evidence.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 20%, coded 5243 (intervertebral disc syndrome).  The PEB also listed lumbar DDD as a related Category II condition (a condition that contributed to the primary unfitting condition but was not separately ratable).  The impairment from the lumbar DDD was properly subsumed under the overall rating for the lumbar disk herniation IAW use of the VASRD general spine rating formula for all thoracolumbar spine conditions, as well as IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  The VA rated the back condition 0% coded 5243, based on the STR.  

The panel deliberated on the scant ROM evidence in the record.  The NARUM ROMs were not complete and the word “approximately” for the flexion of 30 degrees indicated these were likely not goniometric or fully compliant with VASRD §4.46 (accurate measurement).  However, the NARSUM was the only measured ROM in the STR proximate to separation, and aligned with the CI’s underlying pathology.  The PEB worksheet (JDETS) recorded ROM of 30 degrees flexion.  The panel agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees as reported on the NARSUM examination.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the back condition, coded 5243.  

BOARD FINDINGS:  In the matter of the back condition, the panel unanimously recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends 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	
Lumbar Disk Herniation with DDD	5243	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160911, 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 13 Oct 17 ICO XXXXXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 08 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 06 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 07 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 07 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 06 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 07 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 08 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 08 Mar 18 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (j) 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 10 percent disability rating (increased from 0 percent) effective date of discharge.   

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

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

     d. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 percent 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 USN: Placement on the Permanent Disability Retired List with a 50 percent rating (increased from 10 percent) effective date of discharge.  

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

     h. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge.
	
     i. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 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.