RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 	CASE:  PD1201054	
BRANCH OF SERVICE:  NAVY 		BOARD DATE:  20130730
SEPARATION DATE:  20031017

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 (HM2 / Hospital Corpsman [Orthopedic Technician]) medically separated for degenerative disc disease (DDD) of the lumbar spine greatest at L4-L5 and L5-SI.  The CI began having back pain in August 2000 after a lifting injury.  She received no relief with various types of conservative treatment measures.  Her back pain worsened and became constant and was refractory to treatment.  Imaging disclosed degenerative changes in the thoracic and lumbar spine.  The CI also had a long history of Grave’s Disease controlled on medication beginning in about 1991.  The lumbar spine condition could not be adequately rehabilitated to meet the physical requirements of her rating or satisfy physical fitness standards.  She was placed on duty restrictions and referred for a Medical Evaluation Board (MEB).  The MEB identified and forwarded five conditions (see the rating comparison chart below) for PEB adjudication IAW SECNAVINST 1850.4E.  The PEB adjudicated DDD of the lumbar spine greatest at L4-L5 and L5-SI as unfitting, rated 0%.  Three of the remaining conditions were determined to be category II: conditions that contribute to the unfitting condition and one was determined to be category III: conditions that are not separately unfitting and do not contribute to the unfitting condition(s).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was informed that I am eligible for a review.”

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 service rating for the unfitting lumbar spine condition, and its contributing category II conditions, are addressed below; no additional conditions are within the Board’s defined DoDI 6040.44 purview.  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 20030721 | VA - (~ 10 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Degenerative Disc Disease (DDD), Lumbar Spine Greatest at L4-L5 & L5-SI | 5295 | 0% | Thoracolumbar Degenerative Disc Disease | 5243-5243 | 10% | STR & 20040823
B/L L5 Spondylolysis w/o Spondylolisthesis | Category II | | | |
Multi-Level DDD w/Facet Syndrome, Thoracic & Lumbar Spine | Category II | | | |
DDD, T9 to T-12 | Category III | | | |

Graves’ Disease S/P Radioactive Iodine Ablation, Stable On Synthroid

Category II

Hypothyroidism Secondary To Radioiodine Ablation
Therapy For Graves' Disease

7903

10%

STR & 
20040823

No Additional MEB/PEB Entries | Other x 11 | 20040823
Combined:  0% | Combined:  40%
Derived from VA Rating Decision (VARD) dated 20041005, which included all deferred issues adjudicated effective to date of separation (DOS).  CI was a no show to her originally scheduled C&P exam for 20040318, so the initial rating in VARD dated 20040614 was based on the STR, but did not change after the C&P exam of 20040823.     

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation.  This role and authority is granted by Congress to the Department of Veterans’ Affairs.  The Board’s authority as defined in DoDI 6044.40 resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.

Lumbar Spine Condition.  The CI had a long history of back pain that became worse in August 2000.  Magnetic resonance imaging (MRI) showed multi-level DDD of lower thoracic and lower lumbar and sacral segments.  Central disc bulging was present at L4-5 and L5-S1.  The narrative summary (NARSUM) performed 7 months prior to separation noted no improvement in low thoracic and lumbar back pain with medications or multi-modality physical therapy (PT).  The pain was described as constant and worse with activity.  Examination revealed normal gait, posture and spinal curves.  Tenderness was present but muscle spasm was absent.  One exam maneuver resulted in exacerbation of back pain and left leg radicular symptoms, but a straight leg raise test (SLR) was negative for radicular symptoms.  Lower extremity muscle strength, sensation and reflexes were normal.  A PT evaluation on 15 April 2003 (6 months prior to separation) noted active range-of-motion (ROM) within normal limits except for extension which was reduced by 50%.  At the VA Compensation and Pension (C&P) exam, performed 10 months after separation, posture and gait were normal.  There was no lumbar tenderness and no muscle spasm.  SLR was negative bilaterally.  There was no additional limitation of motion with repetitive motion.  ROM revealed flexion of 90 degrees (normal to 90 degrees), extension of 10 degrees (normal 30 degrees), right rotation of 30 degrees (normal 30 degrees), left rotation of 40 degrees and lateral flexion of 30 degrees bilaterally (normal 30 degrees).  Combined ROM was 220 degrees.  Painful motion was present during extension and right rotation.  Lower extremity muscle strength, reflexes and sensation were normal.

The Board directs attention to its rating recommendation based on the above evidence.  It is noted in this case that the PEB's adjudication was IAW VASRD §4.71a criteria in effect at the time of those proceedings but a change to the current §4.71a criteria (General Rating Formula for Diseases and Injuries of the Spine) was effected 26 September 2003, in advance of the date of separation.  The Board must apply the latter criteria to its recommendation IAW DoDI 6040.44.  The PEB used the 5295 code (lumbosacral strain) in assigning a 0% rating (“slight subjective symptoms only”).  The VA assigned a 10% rating under the newer 5243 code (intervertebral disc syndrome) based on evidence of painful motion.  Board members considered that the limitation of extension as described by the service physical therapist probably resulted in a combined ROM that justified a 10% rating, but concluded that the detailed ROM by the VA examiner clearly met this threshold.  There was likewise agreement that a 10% rating was supported by evidence of painful motion (VASRD §4.59) and by the presence of tenderness.  There was no evidence of abnormal gait or spinal contour necessary to justify the next higher 20% rating.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would warrant a higher rating under that formula.  Board members finally concluded that L5 spondylolysis without spondylolisthesis and multi-level DDD with facet syndrome of the thoracic and lumbar spine were properly subsumed as contributing category II conditions.  However, the Board also agreed that, having just appropriately deemed DDD of thoracic and lumbar spine as category II, it was then inconsistent to declare “DDD of the lower thoracic spine from T9 to T12” as category III.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the lumbar DDD condition, coded 5243.

Other PEB Conditions.  Although there was evidence in PEB deliberation documents that Grave’s disease was considered a category III condition (not separately unfitting and not contributing to the unfitting spine condition), the final PEB document listed the disease as category II.  This might have represented an administrative error.  The Board agreed that since Grave’s disease bore no relationship to the unfitting spine condition, a category III designation was more appropriate.  The Board’s main charge is to assess the fairness of the PEB’s determination that Grave’s disease was not separately unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Grave’s disease condition did not carry an attached limited duty and was not implicated in the commander’s statement.  It was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance.  The Board concluded therefore that the Grave’s disease condition could not be recommended for additional disability 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.  In the matter of the degenerative disc disease of the lumbar spine condition, the Board unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  In the matter of the category II Grave’s disease condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.

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
Degenerative Disc Disease of the Lumbar Spine | 5243 | 10%
COMBINED | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120703, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
	           	XXXXXXXXXXXXXXXXXX
		President
		Physical Disability Board of Review

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

Ref:   (a) DoDI 6040.44
          (b) XXXXXXXXXXXXXXXXXX
          (c) PDBR ltr dtd 16 Oct 13 ICO XXXXXXXXXXXXXXXXXX
          (d) 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. XXXXXXXXXXXXXXXXXX

	b. XXXXXXXXXXXXXXXXXX, former USN, XXX XX XXXX: Disability separation with a final disability rating of 10% (increased from 0%) effective 17 October 2003.

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

	XXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)

PD1201054