RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01615
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20040514

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Electricians Mate, medically separated for “L4-5 and L5-S1 degenerative disc disease with herniation” with a disability rating of 10%.  

CI CONTENTION:  “Review all conditions.”  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 - 20040129	VARD - 20050805	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L4-5 and L5-S1 DDD with Herniation	5293	10%	L4-5 and L5-S1 DDD with Herniation	5243	10%	20050709	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

L4-5 and L5-S1 Degenerative Disc Disease (DDD) with Herniation.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in May 2002 after being involved in a motor vehicle accident.  The 22 October 2003 MEB NARSUM examination, 7 months prior to separation, noted complaints of back pain.  Physical examination showed an antalgic gait that favored the right lower extremity.  Movement accentuated the back pain which radiated into the left hip.  MRI studies showed a partial bilateral pars lysis (defect of the spine) at L5 and a central and left posterolateral mild herniation at L5/S1 as well as a central disc herniation at L4/5.  Radial annular tears were present at multiple levels.  Motor and reflex testing were normal.  The CI was not a surgical candidate at the time and was referred to the pain clinic for epidural steroid injections.  He was diagnosed with L4-L5 and L5-S1 DDD with herniation.  

At the 17 September 2004 VA primary care clinic (PCC) appointment, 4 months after separation, the CI complained of chronic back pain.  After multiple steroid injections with minimal relief, the CI reported shooting pain down both legs as well as numbness and tingling which interfered with his day to day functioning.  Physical examination showed the CI in no acute distress but with antalgic gait and positive straight leg raises (SLR - back or leg symptoms with lifting leg).  There was decreased lumbar flexion and the CI was only able to raise the legs approximately to a 30 degree angle.    MRI studies of the lumbar spine on 22 October 2004 demonstrated disc herniation at L4/5, and L5/S1.  There was bilateral spondylolysis at L5 and associated severe bilateral spinal neural foramina stenosis at L5/S1.  

At the VA physical therapy evaluation on 3 November 2004 (6 months post separation), “ROM WFL (range of motion within full limits) except for limited trunk mobility due to pain, tightness hamstrings muscles.  Trunk forward flexion (FF) was to 30 degrees (normal 90), FF increases lumbar pain.”  Posture was normal and sensation was intact.  Gait was non-antalgic.  The examiner noted muscle spasm of the left lumbar paraspinal muscles and tenderness along with positive SLR testing of the left lower extremities.  At the 19 November 2004 PCC visit the CI reported continued chronic low back pain with numbness and tingling to the left lower leg.  Examination showed full active ROM with antalgic gait when the CI moved from the sitting to standing position.  The severe abnormality of the MRI studies were again noted.  X-ray studies on 20 November 2004 showed bilateral spondylitis at L5 with no evidence of spondylolisthesis and were otherwise normal.  

During the 10 February 2005 neurosurgery appointment, the surgeon recommended against surgery since, although not unreasonable, it carried considerable risks.  At the 16 February 2005 PCC appointment, the examiner noted antalgic gait with positive SLR testing and strength decreased to the lower extremities.  

At the 9 July 2005 VA Compensation and Pension (C&P) evaluation, 14 months after separation, the CI reported lower back pain.  Physical examination showed the CI with a normal gait and posture.  Pain was alleviated by taking Motrin.  There were no reports of periods of incapacitation.  There was exaggerated lumbar lordosis.  The left paraspinal muscle was slightly hypertrophied and had a spasm during flexion.  Thoracolumbar ROM measurements recorded active flexion to 70 degrees (normal 90) and combined of 190 degrees (normal 240), with painful motion and no additional limitation with repetitive motion.  There was no motor weakness of the lower extremities and sensory was intact to light touch, pin, and vibration.  MRI studies showed herniated disc at L5-S1 and spondylolysis and the CI was diagnosed with a herniated lumbar disc and spondylosis of the lumbar spine with radiculopathy.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5293 (intervertebral disc syndrome).  The VA rated the low back condition 10%, coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing limitation of forward flexion.  The PEB utilized the older 5293 VASRD spine coding/criteria; code 5293 was revised and moved to codes 5235–5243 effective 26 September 2003.  However, IAW DoDI 6040.44, this panel is required to recommend a rating IAW the VASRD in effect at the time of separation, which is the 2004 VASRD (the same as the current general spine rules).  Although measured ROMs are a key feature for rating under the 2004 VASRD, the older spine criteria did not require measured ROMs for rating, and there were no formal ROM measurements in the STR.  The first PCC evaluation (6 months after separation) did not provide a complete ROM evaluation IAW VASRD §4.46 (accurate measurement), and the extremely limited forward flexion at that evaluation did not align with the disability picture in the remainder of the STR, the subsequent PCC note, or the later comprehensive C&P ROM evaluation.  

It was noted that an abnormal gait was present on the MEB NARSUM examination, which aligned with the CI’s underlying pathology and multiple post-separation examinations documenting antalgic gait due to back pain.  The panel concluded this was sufficient support for a 20% rating (i.e. for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour).  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 20% for the L4-5 and L5-S1 DDD with herniation condition, coded 5243.  

BOARD FINDINGS:  In the matter of the L4-5 and L5-S1 DDD with herniation condition, the panel recommends a disability rating of 20%, 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, effective the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
L4-5, L5-S1 Degenerative Disc Disease with Herniation	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161024, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record  

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 13 Apr 18 ICO XXXXXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 13 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 19 Apr 18 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 20 Apr 18 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (e) 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 USN: 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 30 percent rating (increased from 10 percent) effective date of discharge.  

     d. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.
 
3.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.

                                  XXXXXXXXXXXXXXXXXX
                                  Acting