RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01127
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20040508

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Builder, medically separated for “L4 to S1 fusion for lumbar degenerative disease” with a disability rating of 20%.  

CI CONTENTION:  He believes his rating is inaccurate and provided documents pertaining to his neck and lower back.  The complete submission is 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 20040211	VARD - 20040924	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L4 To S1 Fusion for Lumbar Degenerative Disease	5295	20%	Degenerative Disc Disease At L4-5 and L5-S1 with a Central Rupture and Severe Canal Stenosis at L4-5 and L5-S1 with Spondylosis Thoracic Spine, Herniated Nucleus Pulposus T4-5, T5-6, And T6-7.	5239	20%	20040820	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30% 	

ANALYSIS SUMMARY:  

L4 to S1 Fusion for Lumbar Degenerative Disease.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent back surgery with laminectomy and fusion (L4, L5, and S1) in September 2002.  A January 2003 clinic visit follow-up documented the complaint of a small area of numbness over the right thigh.  The low back pain resolved after surgery, but the CI did note a grinding sound that he could hear and feel on occasion in the low back.  When the CI returned to the clinic in May 2003 he reported some low back pain with activities but no lower extremity symptoms other than some numbness in the anterior thigh.  Neurological exam was normal with full strength, except there was diminished pinprick sensation in both lower extremities.

The 2 October 2003 MEB NARSUM examination, 7 months prior to separation, noted complaints of low back pain that limited some physical activities.  Physical examination showed normal motor strength and decreased sensation to light touch in his right lower extremity.  The range of motion (ROM) measurements were not documented; however, it was stated that he had limited ROM in the thoracic and lumbar region.

At the 20 August 2004 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported intermittent aching in his back and constant tingling in his right foot from the ankles to the toes and also in the distal half of his left foot.  There were flare-ups about every other day that lasted around an hour.  He was able to perform his activities of daily living, and required no assistive devices.  Physical examination noted non-antalgic gait and normal posture and stance.  ROM documented thoracolumbar spine forward flexion to 45 degrees (normal, 90) and extension to 15 degrees (normal 30), with pain on motion.  There was decreased sensation in the bilateral lower extremities, but there was no weakness, incoordination, fatigability, or further limitation in ROM with repetition.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 20%, coded 5295 (lumbar sprain), under the interim spine rules.  The VA also rated the low back condition 20%, coded 5239 (spondylolisthesis or segmental instability), based on the C&P examination, citing limitation of forward flexion.  Panel members agreed that the 20% rating, and 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.  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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the L4 to S1 fusion for lumbar degenerative disease condition.  

Contended PEB Condition: Cervical Spondylosis.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The condition was not listed in the LIMDU, implicated in the commander’s statement, or judged to fail retention standards.  There was no performance-based evidence from the record that the cervical spondylosis condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the L4 to S1 fusion for lumbar degenerative disease condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended cervical spondylosis condition, the panel agrees it cannot recommend it for additional disability rating.  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.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160926, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs 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 USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN

					XXXXXXXXXXXXXXXXXX
	     				Acting