RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2016-00868
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20040517

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Aviation Ordnanceman, medically separated for “back pain and right L5-S1 radicular symptoms status post posterior lumbar interbody fusion L5-S1” with a disability rating of 10%.   

CI CONTENTION:  “Based on medical issues and severity of problems, I don’t feel this rating is fair.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB – 20040408	VARD – 20041019	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain and Right L5-S1 Radicular Symptoms… 	5241	10%	Chronic Back Pain with L5-S1 Radiculopathy, Status Post Posterior Lumbar Interbody Fusion	5237	20%	20040915	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Back Pain and Right L5-S1 Radicular Symptoms.  According to the service treatment record and the MEB narrative summary (NARSUM), the CI underwent a posterior L5-S1 interbody lumbar fusion on 13 November 2003.  During the immediate post-operative period, she experienced worsening lumbosacral back pain and new onset of numbness along the back of the right thigh, leg, and lateral foot.
The 18 February 2004 MEB NARSUM examination, 3 months prior to separation, noted CI complaints of worsening back pain with right foot and leg numbness, but no weakness.  Physical examination showed tenderness along the L5-S1 spinous processes, but no palpable abnormalities.  Straight leg raise (SLR) testing was negative on the left, and on the right, it produced a pins and needles sensation along the posterior aspects of the thigh, leg and lateral foot.  Pinprick and light touch sensations were absent in the right-side S1 and L5 dermatomes, but normal otherwise; strength was also normal.  Range of motion (ROM) tests revealed painful flexion limited to touching the knees.  Painful extension was to 15 degrees (normal 30), and side bending was full and painless bilaterally.  Trunk rotation was limited to a 20-degree painful arc.  
  
During the 9 March 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 2 months before separation, the CI reported constant back pain with numbness in her left leg and right foot, and limitations with lifting, prolonged standing/sitting, running, sit-ups or push-ups.  Physical examination revealed tenderness along the spine.  Flexion was to 80 degrees, extension to 15 degrees, and rotation to 20 degrees bilaterally, with painful motion in all planes; side bending measurements were not provided.  Right side SLR testing was positive and there was decreased sensation to pin prick on the dorsum and plantar aspects of the right foot.

At the 15 September 2004 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported constant back pain with numbness in left and right foot.  Physical examination showed a normal spinal contour and no paravertebral spasm or tenderness.  Thoracolumbar ROM measurements showed flexion of 70 degrees, with pain beginning at 60 degrees, and a combined ROM of 205 degrees (normal 240), with painful motion. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5241 (spinal fusion).  The VA rated the back condition 20%, coded 5237 (lumbar spine strain), based on the C&P examination, citing forward flexion of 60 degrees with pain.  Members agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the  MEB and VA examinations.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  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.  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.  After due deliberation, considering all 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 low back condition.  

BOARD FINDINGS:  In the matter of the back pain and right L5-S1 radicular symptoms, and IAW VASRD §4.71a, the panel 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 no modification or re-characterization of the CI’s disability and separation determination.  

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: