RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00734
BRANCH OF SERVICE:  NAVY 	SEPARATION DATE:  20050218

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E4, Builder, medically separated for “low back pain” with a disability rating of 20%.  

CI CONTENTION:  The injury has worsened.  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 - 20040818	VARD – NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5241	20%	There was no VA Rating Decision Proximate to Separation in Evidence	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery in September 2000 for left S1 radiculopathy.  After recovery he was able to return to full duty, but re-injured his back in early 2003.  Primary care noted in December 2003 that flexion, extension and rotation of the spine were slightly limited, but did not provide measurements.  On 22 March 2004, the occupational therapist noted limited thoracolumbar range of motion (ROM).  

The 13 April 2004 MEB NARSUM examination, 10 months prior to separation, noted complaints of continued LBP.  Physical examination showed tenderness.  Thoracolumbar range of motion (ROM) measurements were 45 degrees flexion (normal 90) and 165 degrees of combined ROM (normal 240).  Spasm, gait and spinal contour were not addressed.  
At the 6 May 2004 VA Compensation and Pension (C&P) evaluation, 9 months before separation, the CI reported chronic LBP exacerbated by prolonged standing, sitting or driving.  Physical examination showed normal gait, normal posture and mild tenderness.  There was no evidence of spasm, swelling or erythema.  Thoracolumbar ROM was recorded as flexion of 25 degrees and combined ROM of 135 degrees.  The examiner noted pain beyond 25 degrees of flexion.  MRI studies showed borderline-mild spinal stenosis at L3-L4 and L4-L5 levels, a small disc bulge with anterior tear at L4-L5 and disc protrusion likely contacting the exiting S1 nerve roots.  

At the time of the 17 August 2004 primary care clinic appointment, 6 months prior to separation, the clinician noted reports of “chronic debilitating pain.”  Physical examination showed limited thoracolumbar ROM, tenderness, and depressed deep tendon reflexes.  Radicular testing was positive bilaterally.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 20%, coded 5241 (spinal fusion).  The panel noted disparity between the C&P and other ROM measurements in evidence prior to and post separation.  Although the limitation of thoracolumbar motion recorded in the VA examination met the threshold for a 40% rating, the preponderance of evidence supported a 20% rating for limitation of flexion greater than 30 degrees, but not greater than 60 degrees.  The panel placed higher probative value on the preponderance of evidence and agreed that a 20% rating, but no higher, was justified for limitation of flexion greater than 30 degrees but not greater than 60 degrees.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded 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.  Therefore, the panel recommends 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 20160913, 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:

		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN