RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01253
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20041015

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Aerographer’s Mate, medically separated for “degenerative disc disease [DDD] with herniated intervertebral disc L5-S1” with a disability rating of 20%.  

CI CONTENTION:  Requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20040823	VARD - 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DDD w/ Herniated Intervertebral Disc L5-S1	5237	20%	DDD, Lumbosacral Spine	5242	20%	20041207	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

DDD.  According to the service treatment record and MEB narrative summary (NARSUM), the CI experienced low back pain in August 2001 after lifting a heavy sea bag, and was treated with medications and physical therapy (PT).  She initially did well, but her symptoms recurred in early 2003 with an MRI showing a right-sided disc herniation at L5.  She was evaluated in orthopedics and non-operative treatment was recommended.  The CI improved with PT, but was not able to return to full duty.  

The 4 May 2004 MEB NARSUM examination, 5 months prior to separation, noted complaints of back pain that occasionally radiated down to the legs, with pain greater on the right than left.  The physical examination showed an abnormal gait with tenderness and spasm, but neurological findings were normal. Spinal range of motion (ROM) was pain-free and limited to 45 degrees forward flexion (normal 90) and a combined ROM of 175 degrees (normal 240).  Two weeks later in PT, flexion was recorded as “90% of normal [about 80 degrees].”  In family practice on 17 June 2004, spinal ROM was also normal.  During the 28 June 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months before separation, the CI reported ongoing back pain but the physical examination was checked “normal” for the spine and neurological examinations.  

At the 7 December 2004 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported a decrease in her activity from a former high level, but recent improvement.  She did not use a brace and incapacitation was not recorded.  The physical examination showed flexion of 90 degrees and a combined ROM of 150 degrees.  Extension was associated with onset of pain which caused the patient to terminate any further attempt at ROM testing (rotation).  Neurological findings were normal other than a sensory loss of the left thigh thought to be unrelated to the back condition; gait was not mentioned.  An X-ray showed DDD and degenerative joint disease.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the DDD 20%, coded 5237.  The VA also rated the DDD 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P evaluation, noting an incomplete examination, but that the total disability picture best fit that of a 20% impairment.  The panel observed that the majority of the examinations proximate to separation actually supported a 10% rating, but a lower rating than that adjudicated by the PEB cannot be recommended by the panel.  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 DDD with herniated intervertebral L5-S1 disc condition 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.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160923, 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 USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN