RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXX	CASE: PD-2017-02724
BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20060501

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was active duty E2, Trainee, medically separated for “subtle central disk herniation at the L5-S1 level” with a disability rating of 10%.

CI CONTENTION: “My injuries are constrictive to everyday life.” 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 - 20060124	VARD – 20070515*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Subtle Central Disk Herniation at L5-S1	5299-5237	10%	L5-S1 Disc Herniation	5242	0%*	STR	
Mild Scoliosis	Category II					
Tibial Torsion Resolved S/P Osteotomy	Category II	Stress Fracture Right Leg	5299-5262	NSC	STR	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 0%*	
	
ANALYSIS SUMMARY:

Disk Herniation at L5-S1. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in April 2004 at boot camp after performing pushups, running and bending. Radiographic studies in September 2004 indicated a subtle central disc herniation superimposed  on  a diffuse  disc bulge at  L5-S1 without  stenosis.  The 14 November 2005 MEB NARSUM examination, 6 months prior to separation, noted complaints of 8/10 lower back pain and occasional shooting pains going down the left leg. Physical examination showed tenderness and faint paraspinal muscle spasms on the right, but gait, motor

strength and sensation were normal. Range of motion (ROM) testing showed forward flexion of 90 degrees (normal) with pain, extension of 15 degrees (normal 30), and lateral right and left bending at 20 degrees each (normal 30). During the 13 December 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported chronic low back pain with numbness and tingling that limited her ability to function. Physical examination showed a congenital deformity at the L5 vertebrae (noted on MEPS entry exam) and L5-S1 disc herniation.  There was no VA examination proximate to separation in evidence.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10%, analogously coded 5237 (lumbosacral strain). The VA rated the back condition 0%, coded 5242 (degenerative arthritis of the spine), based on the STR. It is first clarified that the PEB’s Category II diagnosis of mild scoliosis is intrinsic to the rated condition and a separate rating cannot be supported without pyramiding (VASRD §4.14); thus, it is appropriately subsumed under the same rating. The panel agreed that a 10% rating was justified for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported in the MEB NARSUM; alternatively, the panel agreed a 10% rating was justified for the presence of painful motion, spasm and tenderness but a separate rating cannot be supported without pyramiding. Although there was muscle spasm, it was not 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 documentation of intervertebral disc syndrome with incapacitating episodes, which would provide for a higher rating under that formula. 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 back condition.

Contended PEB Condition: Tibial Torsion. The panel’s main charge is to assess the fairness of the PEB determination the contended condition was not separately ratable. There was no performance-based evidence from the record that the 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 back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the mild scoliosis and tibial torsion category II conditions, the panel agrees it cannot recommend either 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 20170322, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

2	PD-2017-02724

DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD, DC 20374-5023

IN    REPLY   REFER  TO:
1850
CORB: 003 20May20

From: 

Director, Secretary of the Navy Council of Review Boards 

Subj:  PHYSICAL DISABILITY  BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr <ltd 1 Apr 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy on 5 Mar 2020 for appropriate  action.

2.	On 20 March 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR ofno change to your characterization of separation or disability rating assigned by the Department of the Navy's Physical Evaluation  Board.

3.	The Secretary's decision on your PDBR application is final and is not subject to appeal or additional review by the Board for Correction of Naval Records.