RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXX	CASE: PD-2017-05586
BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20080910

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Surface Sonar Technician, medically separated for “lumbar herniated intervertebral disk” with a disability rating of 20%.

CI CONTENTION: He continues to experience debilitating pain. 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 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 – 20080513	VARD - 20090326	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Herniated…Disk	5237	20%	

IVDS with Degenerative Arthritis, Lumbar Spine	

5243	

10%	

20080909	
Lumbar Extruded Intervertebral	

Cat II					
Myofascial Pain Syndrome						
Facet Arthropathy						
Piriformis Syndrome						
Intervertebral Disk Degeneration						
Lumbar Radiculopathy		Radiculopathy, RLE	8599-8520	10%		
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 30%	

ANALYSIS SUMMARY:

Lumbar Herniated Intervertebral Disc. According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began as early as May 1998 after a sports injury. The CI was treated with multiple modalities without pain alleviation. The 15 April 2008 MEB NARSUM examination, 5 months prior to separation, noted complaints of chronic lower back pain worsened by prolonged sitting and standing. The pain radiated to the right left. The  CI reported numbness and tingling in the right lower extremity (RLE). Physical examination revealed tenderness. The CI was able to flex to mid-calf with complaints of mild pain worse with extension.

The 30 April 2008 electromyogram and nerve conduction study were normal. The same-day physical therapy appointment, 4 months prior to separation, recorded range of motion (ROM) as flexion to 45 degrees (normal 90) and combined ROM of 155 degrees (normal 240).

At the 9 September 2008 VA Compensation and Pension (C&P) examination, one day before separation, the CI denied incapacitation but reported constant, burning, aching, lower back pain. The pain radiated to the RLE. Physical examination revealed tenderness and a normal gait. Muscle spasms were absent. Radicular testing was negative bilaterally. ROM was flexion to 90 degrees and combined ROM was 230 degrees with painful motion.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back 20%, coded 5237 (lumbosacral strain). The VA rated the back 10%, coded 5243 (IVDS), based on the C&P examination, citing decreased ROM of the lumbar spine with pain. The PEB listed “lumbar extruded intervertebral, myofascial pain syndrome, facet arthropathy, piriformis syndrome, intervertebral disk degeneration, and lumbar radiculopathy” as related Category II diagnoses contributing to the disability in this case. With the exception of lumbar radiculopathy, the panel concluded these Category II diagnoses were not separate conditions which could be reasonably justified as separately unfitting; nor would separate ratings be achievable without violation of VASRD §4.14 (avoidance of pyramiding). The presence of functional impairment with a direct impact on fitness is the key determinant in the panel’s decision to recommend any condition for rating as additionally unfitting. While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities. There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing. The panel therefore concluded that an additional disability rating was not justified on this basis. 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 for that condition. 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 lower back condition.

BOARD FINDINGS: In the matter of the lumbar herniated intervertebral disk condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the contended lumbar extruded intervertebral, myofascial pain syndrome, facet arthropathy, piriformis syndrome, intervertebral disk degeneration, and lumbar radiculopathy conditions, the panel recommends no change from the PEB determination that these are Category II conditions. 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:

2	PD-2017-05586

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

IN REPLY REFER TO:
1850
CORB: 003
10 Sep 20

From: Director, Secretary of the Navy Council of Review Boards To:	

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) Ref:	(a) DoDI 6040.44
1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department of the Navy on 13 Aug 2020 for appropriate action.

2.	On 27 August 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.