RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2012-01226
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20140925
SEPARATION DATE:  20030812

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO3/E-4 (HM3/Hospital Corpsman) medically separated for chronic low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements and she was referred for a Medical Evaluation Board (MEB).  The chronic LBP condition was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated chronic LBP as unfitting, rated at 0% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “The same doctor that did my med board did my first eval for the VA.  On the med board I was rated for back pain only, but when I was evaluated by the VA they rated the L5 S1 herniation & left leg weakness/foot drop”.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting chronic LBP condition is addressed below.  The Board will also review any neurologic deficit as related to the LBP and contention by the CI regarding the left leg weakness/foot drop.  The Board must emphasize that disability compensation may only be offered for those conditions that cut short the member’s service career.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records.

RATING COMPARISON:  
   
Service IPEB – Dated 20030424	VA - (4 Yrs. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5295	0%	Herniated Disc AT L5-S1	5243	10%	20071127	
Other x 0  (Not in Scope)	Other x 15 	20071127	
Combined:  0%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20071127 (most proximate to date of separation)

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation.  The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short the member’s career and then only to the degree of severity present at the time of final disposition.  However the Department of Veteran Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the veteran’s disability rating should his degree of impairment vary over time.

The Board also acknowledges that the original VA Compensation and Pension (C&P) examination and VARD were referenced, but not available in the evidence before it and could not be located after numerous requested inquiries.  Further attempts at obtaining the relevant documentation would likely be futile and introduce further delay in processing the case.  The missing evidence will be referenced below in relevant context and it is not suspected that the missing evidence would significantly alter the Board’s recommendations.

Low Back Pain Condition.  The 2003 VASRD coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were updated 23 September 2002 for code 5293 (incapacitating episodes) and then changed to the current §4.71a rating standards on 
26 September 2003.  The older VASRD standards for rating based on range-of-motion (ROM) impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment.  The VASRD normal ROM values, that are listed, were not in effect prior to 26 September 2003 and are for the combined thoracolumbar spine segment, whereas the older spine criteria considered the thoracic and lumbar spine segments separately.  For the reader’s convenience, the relevant 2003 rating codes under discussion in this case are excerpted here.

5292 Spine, limitation of motion of, lumbar:
Severe……….40; Moderate……….20; Slight……….10
5293 Intervertebral disc syndrome:
With incapacitating episodes having a total duration
…of at least two weeks but less than four weeks during the past 12 months.......20
…of at least one week but less than two weeks during the past 12 months ........10
5295 Lumbosacral strain:
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position……………………20
With characteristic pain on motion..................10
With slight subjective symptoms only...............0

The CI initially was seen for LBP associated with pain extending into bilateral hips and left leg shortly after falling on the floor while being transferred from the operating room table to a recover room stretcher in October 2000.  A magnetic resonance image (MRI) performed on 30 October 2000 revealed an L5-S1 disc herniation without neurologic involvement.  Although not present in the case file, there were documentation in the service treatment record (STR) of a second MRI dated 30 May 2001, which revealed the CI was “…without significant change” from prior exam.  Electro-diagnostic testing was normal.  Despite medication, physical therapy, profiling, manipulations, pain management and [steroid] spinal injections, the CI continued to have intermittently discomfort in her back.  The CI was not considered a surgical candidate and pain management diagnosed a strain of her left sacral-iliac (SI) joint and illiolumbar ligament with L3 radicular symptoms.  The STR contained very little documentation that indicated decreased and painful spinal motion.  Lumbar spasms were infrequently identified and there were inconsistent notations of the affected spinal dermatome noting various levels between L3 to S1.

At the narrative summary (NARSUM) examination (performed 8 months prior to separation), the CI indicated a constant LBP with intermittent severe exacerbations occasionally radiating down her left leg; however, the examiner noted “…pain is primarily in her back.”  Symptoms were increased with prolonged standing, walking and running.  On examination, the CI had left lumbar and SI tenderness without spasms.  Neurovascular, sensory and strength parameters were normal to the back and lower extremities.  There was “full” thoracolumbar ROM.  There were no periods of incapacitation.  The diagnosis was chronic LBP and the examiner indicated that her symptoms were “sufficient enough to preclude her normal activities”; however, there was no functional defining of her “normal activities.”  

Absent the original VA C&P examination and VARD, a subsequent 4 year post-service VARD indicated an original VA rating of 10%, for the CI’s lumbosacral herniated disc with radiculopathy, which was later increased to 20%.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the back condition as 5295 (lumbosacral strain) and rated at 0%.  The VA’s rating of 10% was under the current VASRD §4.71a, rated as code 5243 (intervertebral disc syndrome) which was not in effect at the time of the CI’s date of separation.  The majority of STRs reflected full spinal ROM or did not document any motion deficit from 2000 to 2002.  The first recorded evidence of limited ROM was dated 25 November 2002, noting global decrease ROM without providing comments on actual measurements.  The NARSUM (performed 3 weeks later), revealed “full” ROM.  Utilizing code 5295 (lumbosacral strain), Board members agreed that sufficient evidence was present to meet the 10% criteria with painful motion.  Board members also agreed that any description of decreased ROM would not be supported above the 10% rating under code 5292 and without periods of incapacitation, code 5293 was not applicable as well.  Although not commented on by the NARSUM, the STR (a month prior to the NARSUM being dictated) clearly documented (++) “muscle spasms” in the lumbosacral spine, possibly in support of a higher rating.  Members extensively deliberated and concluded that the objective evidence of significant back spasms (8 months prior to separation) did not support their presence at the time of separation and therefore, did not meet the 20% impairment level.  

After due deliberation, considering all of the evidence and mindful of the VASRD spine standards in effect at the time of separation, the Board recommends a disability rating of 10% for the low back condition.  Additionally, Board members considered the left leg weakness/foot drop as contented by the CI and determined that the MEB’s finding of “normal” neurovascular and strength as documented for both lower extremities did not impose any direct limitation on fitness and therefore, cannot recommend an additional separation rating.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the low back condition and IAW 2003 VASRD, the Board unanimously recommends a disability rating of 10% coded under 5295.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation.

UNFITTING CONDITION	VASRD CODE	RATING	
Low Back Pain Condition	5295	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120711, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
		   DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:   (a) DoDI 6040.44
       (b) PDBR ltr dtd 26 Feb 15 ICO XXXXXXXXXXXXXXXXX 
	 (c) PDBR ltr dtd 21 Jan 15 ICO XXXXXXXXXXXXXXXXX 
	 (d) PDBR ltr dtd 13 Jan 15 ICO XXXXXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 5 Feb 13 ICO XXXXXXXXXXXXXXXXX
	 (f) PDBR ltr dtd 28 Feb 15 ICO XXXXXXXXXXXXXXXXX
          
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (f).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXX, former USN: Disability separation with final disability rating of 10 percent (increased from 0 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 70 percent disability rating effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USMC:  Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

     e. XXXXXXXXXXXXXXX, former USMC: Disability separation with final disability rating of 10 percent (increased from 0 percent) effective date of discharge.

3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are completed.

	XXXXXXXXXXXXXXX
	Assistant General Counsel
	  	   	(Manpower & Reserve Affairs)