RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2012-01560	
BRANCH OF SERVICE:  NAVY	 BOARD DATE:  20140123
SEPARATION DATE:  20080604		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Petty Officer Second Class/E-5 (SK2, Storekeeper) medically separated for a lumbar spine condition.  CI presented with approximately six months chronic lower back pain (LBP) of with no trauma or particular event associated with the onset.  He was diagnosed with lumbar degenerative disc disease (DDD).  The lumbar DDD condition could not be adequately rehabilitated to meet the physical requirements of his Rating, or satisfy physical fitness standards.  He was placed on limited duty [LIMDU] and referred for a Medical Evaluation Board (MEB).  The lumbar spine condition was found medically unacceptable, and was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The PEB initially found him fit for duty.  The CI did not concur with the PEB findings, and requested reconsideration.  In February 2008, a Reconsideration PEB was convened and the CI was found unfit due to lumbar DDD.  A second lumbar spine condition (Intervertebral protrusion) was adjudicated as Category II (related to the unfitting lumbar DDD condition).  The CI was then medically separated with a disability rating of 0%.

CI’s CONTENTION:  “The Veterans Administration decided my rating at 40%.  Prior to my date of discharge there was a small central prolapse L5-S1 as well as advanced degenerative disc disease T10-11-12 combined with a right knee ACL replacement, meniscus debridement and repair of a fractured patella.  These conditions still exist and have led long periods of pain and discomfort.  My spouse is active duty Navy and we are stationed in Germany.  As such, most of my medical history is in the military system and not the VA system.  Back and knee pain plague me to this day to include having an elevated work space and wearing knee supports daily. The back and knee injuries have also been a contributing factor in restricting the amount of exercise I can perform leading to dangerous weight gains reaching a maximum weight of 320 pounds.”

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 requested by the CI.  The rating for the unfitting lumbar degenerative disc disease is addressed below.  The second PEB condition, intervertebral protrusion, is also addressed below.  No other conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions outside the Board’s defined scope of review may be eligible for consideration by the Board for Correction of Naval Records (BCNR). 

RATING COMPARISON:  

Navy Reconsideration PEB – dated 20080220 | VA Rating Decision – dated 20090416
Condition | Code | Rating | Condition | Code | Rating | Exam
Lumbar DDD | 5237 | 0% | DDD of Lumbar Spine | 5237 | 20% | 20090223
Intervertebral Protrusion | Category II | | | |
No Additional MEB/PEB Entries | Other x 7 | 20090223
Combined:  0% | Combined:  40%
Derived from VA Rating Decision (VARD) dated 20090416 (most proximate to date of separation)   
ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his conditions continue to burden him, and the significant impact they have had on his quality of life.  It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate service members for future severity or potential complications of conditions.  That role and authority is granted to the Department of Veterans Affairs (DVA).  The Board evaluates VA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation.  While the DES considers all of the CI's medical conditions, compensation can only be offered for those conditions that cut short a service member’s career, and then only to the degree of severity present at the time of separation.  The VA, operating under a different set of laws, is empowered to compensate for service-connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment change over time.
   
Lumbar degenerative disc disease.  The CI worked as a storekeeper and his duties involved heavy lifting.  He developed LBP with no specific injury or traumatic event associated with the onset.  His pain was in the lower back and radiated into the right leg.  Magnetic Resonance Imaging (MRI) showed a small, central disc prolapse at L5-S1, with no neuroforaminal narrowing.  He was treated with physical therapy (PT) as well as epidural steroid injections, with some improvement.  However, his LBP persisted and an MEB was initiated.  The MEB physical exam (PE) was in September 2007, 9 months prior to separation.  At that exam, there was some paraspinous tenderness, particularly on the right.  Reflexes and muscle testing were normal.  He was able to flex to mid-calf with mild pain.  Lumbar range of motion (ROM) was apparently measured by PT, but that clinical note was not found in the treatment record.  

As noted above, the CI was medically separated from service on 4 June 2008.  Eight months later, on 23 February 2009, he had a VA Compensation and Pension (C&P) exam.  At that time, he reported constant dull LBP and sharp shooting pain that occurred with certain movements.  The pain radiated to the right hip and right thigh.  PE of the spine showed normal symmetry and curvature.  Posture and gait were both normal.  There was no muscle spasm, atrophy, guarding or weakness.  The CI did have some bilateral tenderness and pain with motion.  Motor strength for hip flexion and hip extension was normal.  Detailed sensory exam and detailed reflex exam of the lower extremities was normal.  Thoracolumbar ROM testing revealed forward flexion of 50 degrees.  Thoracolumbar combined ROM was 165 degrees.  After three repetitions of ROM, thoracolumbar flexion was 40 degrees.

The Board carefully reviewed all the evidentiary information available and directs attention to its rating recommendation based on the above evidence.  The Navy PEB and the VA coded the LBP condition as 5237 (lumbosacral strain), but chose different rating options.  The PEB rated it 0%, and the VA assigned a disability rating of 20%.  The Board noted that, in the treatment record, there were no thoracolumbar ROM measurements from the September 2007 MEB exam.  The Board tried to obtain these measurements with no success.  At the February 2009 C&P exam, thoracolumbar forward flexion was 50 degrees.  IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a, a 20% rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees.    
  
Therefore, the Board determined that a disability rating of 20% was appropriate.  The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling spine condition which would justify a rating higher than 20%.  The Board also considered the CI’s radicular symptoms.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with satisfactory performance of military duties.  The CI’s radicular symptoms were subjective only.  There was no unfitting neuropathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 20% for the lumbar DDD condition.  It is appropriately coded 5242 and IAW VASRD §4.71a, meets criteria for the 20% rating level based on forward flexion greater than 30 degrees but not greater than 60 degrees.

Other PEB Condition.  The other PEB condition was “intervertebral protrusion.”  This condition was adjudicated by the PEB as Category II (related to and contributing to the unfitting DDD condition).  The Board determined that this condition was indeed related to and contributed to the unfitting DDD condition, and did not constitute a separately unfitting condition for disability rating purposes.  Therefore, it is appropriate for this condition to be considered as Category II.  After due deliberation and consideration of all the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the “Intervertebral protrusion.”

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.  In the matter of the lumbar DDD condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration. 

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

UNFITTING CONDITION | VASRD CODE | RATING
Lumbar degenerative disc disease | 5242 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120821, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
	           XXXXXXXXXXXXXXXXXXXX
	           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 10 Feb 14 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 10 Mar 14 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 28 Feb 14 ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (d).

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

a. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a rating of 30% effective 28 June 2002.

b. XXXXXXXXXXXXXXXXXXXX, former USMC:  Placement on the Temporary
Disability Retired List from 30 October 2008 through 30 April 2009 with a disability rating of
60% with transfer to the Permanent Disability Retired List effective 1 May 2009 with a final
disability rating of 40%.

c. XXXXXXXXXXXXXXXXXXXX, former USN: Disability separation with a final disability rating of 20% (increased from 0%) effective 4 June 2008. 

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 complete.

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel
(Manpower & Reserve Affairs)

PD-2012-01560