RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01652
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20040726

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Diver First Class, medically separated for “low back pain with L4/5 lateral recess stenosis” with a disability rating of 20%.

CI CONTENTION:  Current condition supports a higher rating.  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 - 20040223	VARD - 20050315	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain…	5243	20%	Lumbar Paraspinal Tendonitis with Degenerative Disc Disease (Claimed as Back Pain, Herniated Discs, and Disc Disease)	5237-5242	10%	20041029	
Central Herniated Nucleus Pulposus L5/S1	Cat II					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Low Back Pain (LBP).  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s LBP condition began in April 2003 when he slipped while lifting an underwater robot out of the water and it landed on his lap.  At a medical facility examination on 27 May 2003 the CI had L1 to S1 spinal tenderness, visible muscle spasms and could only flex to 60 degrees (normal 90).  Lumbar spine X-rays were within normal limits, but an MRI on 23 June 2003 revealed degenerative disc disease, mild osteoarthritic changes, and L4-L5 and L5-S1 disc herniation.  The CI was evaluated by the pain management clinic on 11 September 2003 where he received epidural steroid injections without pain relief; he did not return to full duty.

At the 2 December 2003 MEB NARSUM examination, 7 months prior to separation, the CI reported LBP without radiculopathy.  He was unable to run, lift, bend, or stand/walk for prolonged periods; surgical intervention was not desired.  Physical examination showed spinal tenderness, negative straight leg raise (SLR) testing for radiculopathy, and +2/4 deep tendon reflexes. Range of motion (ROM) was “diminished in all ranges secondary to pain.”  An MRI evaluation showed L4/5 right lateral recess stenosis and an L5/S1 central herniated nucleus pulposus.  During the 16 December 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported constant LBP with two herniated discs and degenerative disc disease.  Physical examination showed spinal tenderness, pain during SLR testing, and ROM limited by pain which increased with positional changes.  At a medical facility visit on 16 January 2004, 6 months before separation, the CI reported constant pain without flares, but that he was able to sleep well with Elavil (amitriptyline for nerve pain).

At the 29 October 2004 VA Compensation and Pension (C&P) evaluation, 3 months after separation, the CI reported near constant, aching LBP, and noted that although his ROM was limited, he had no other functional impairment.  Physical examination showed a normal gait and no use of a device for ambulation.  There was no erythema, edema or heat changes of the lumbar spine.  There was radiating pain on movement without spasm or tenderness, but SLR testing was negative.  There were no signs of intervertebral disc syndrome (IVDS).  Spinal flexion was 85 degrees) and combined ROM was 190 degrees (normal 240) with painful motion present.  There was no further limitation of motion with repetition.  Thoracic and lumbosacral spine X-rays performed on 29 October 2004 were normal.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 20%, coded 5243 (IVDS).  The Navy PEB listed the herniated nucleus pulposus condition as a related diagnosis (Category II) that contributed to the disability in this case.  The panel agreed the herniated nucleus pulposus was related to and contributed to the Navy Category I unfitting condition and  could not be separately rated IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  The VA rated the LBP condition 10%, analogously coded 5237-5242 (lumbosacral strain-degenerative arthritis of the spine), based on the C&P evaluation, citing limitation of flexion.  Members agreed there was no thoracolumbar spine limitation, as recorded on the MEB NARSUM or VA examinations, to support a rating higher than the PEB’s adjudication.  There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the 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 low back condition.

BOARD FINDINGS:  In the matter of the LBP 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 20161006, 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

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	     				Acting