RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxx	BRANCH OF SERVICE:  NAVY
CASE:  PD1201715                                                                             	SEPARATION DATE:  20020131
BOARD DATE:  20130509

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SN/E-3 (Seaman [Undesignated]), medically separated for low back pain (LBP) with intermittent right lower extremity (RLE) radicular symptoms.  In 2000, the CI complained of a lump to her right lower back with numbness, tingling, and pain to her RLE.  She was treated with physical therapy, nonsteroidal anti-inflammatory agents, and oral and epidural steroids without relief.  She could not be adequately rehabilitated to meet the physical requirements of her rating or satisfy physical fitness standards.  She was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication.  The PEB adjudicated LBP with intermittent RLE radicular symptoms as unfitting rated 20%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I received a letter in the mail about The Wounded Warrior act.  In addition, it is my belief that at the time of my award my conditions were not fully considered and were passed off as a "common" injury and therefore given the minimum percentage.  When I was separated I was recommended for 20% for my back alone.  The VA only gave me 10% for my back, 10% for my depression and anxiety, and 0% for my sinuses.   It was my understanding that my back condition would have a 20% rating on its own and I beleive that my depression and anxiety should be higher than 10% expressially since sexual harassment   and bullying was a major factor in causing it.   In addition, my conditions are progressively getting worse. My back condition will be something I will have to deal with for the rest of my life.  I have been getting help for my depression and anxiety since being separated   however, due to my scars running so deeply I will also most likely never totally heal from this condition.   I have not been able to work due to the combination of these conditions.”

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.  Ratings for unfitting conditions will be reviewed in all cases.  The low back condition as requested for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview and is addressed below.  The depression condition, and 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.  Also IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

RATING COMPARISON:  

Service IPEB – Dated 20011211	VA -   (8.5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain w/ Intermittent Right Lower Extremity Radicular Symptoms  	5293	20%	Herniated Nucleus Pulposus at L4, and L5	5293	10%	20021015	
Combined:  20%	Combined: 10%*	
Original VARD dated 20021105 (most proximate to Date of Separation)  
*Subsequent rating change made on VARD dated 20030723 included depression as secondary to the service-connected disability and was coded 9434 rated 10% effective retroactive to 20020201 based on a C&P examination done 20030205.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her but notes the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations and DoDI 6040.44 defines a 12 month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.  The Board likewise acknowledges the CI’s contention for rating of her depression condition and notes that disability compensation may only be offered for conditions that cut short the member’s career.

Low Back Pain Condition.  The CI initially presented with lower back pain with a burning pain radiating down her left leg in January 2000 without history of trauma.  She subsequently had a motor vehicle accident (August 2000) and two falls (April 2000, Jan 2001) which exacerbated her back pain and right leg radiculopathy.  She was treated with physical therapy, anti-inflammatory medications, and steroid injections without relief.  Orthopedic and neurosurgery consultations determined that she was not a surgical candidate.  At the MEB exam, 4 months prior to separation, the CI reported lower back and right leg numbness with prolonged standing and sitting.  The narrative summary, 4 months prior to separation, notes pain limited lumbar range-of-motion, palpable spasms, and tenderness at the right paraspinal region, negative straight leg raise, and 5/5 motor strength.  At the VA Compensation and Pension (C&P) exam about 8 months after separation, the CI reported the use of mediation for her back pain and continued tingling in her right leg.  The physical examination demonstrated decreased lumbar flexion, normal gait, and normal sensation in the right lower extremity.  The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the lower back pain with intermittent radiculopathy condition as intervertebral disc disease and rated it at 20%.  Intervertebral disc disease is rated on severity (mild, moderate or severe) and frequency of the attacks.  The PEB’s gave a disability rating of 20% and characterized the CI’s pain as moderate with recurring attacks.  The 40% disability rating criteria requires severe recurring attacks with intermittent relief.  Board members agreed that all evidence considered, the CI’s lower back pain and intermittent right lower extremity radiculopathy did not rise to the level of severe.  The Board also considered VASRD code 5395 (lumbosacral strain) however this coding would also result in a disability rating of 20% for muscle spasms on extreme forward bending.  The Board noted the absence of muscle spasms, the absence of paraspinous tenderness to palpation, and no evidence of radiculopathy at the CI’s VA examination 8 months post separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lower back condition.

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 lower back pain with intermittent RLE radiculopathy condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Herniated Nucleus Pulposus at L4, and L5	5293	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120725, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	xxx
	Director of Operations
	Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW 
                                        BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
          (b) CORB ltr dtd 15 Jul 13

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandum, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- former USMC
- former USMC
- former USMC
- former USN 
- former USN
- former USN

						  xx
	     					  Assistant General Counsel
						     (Manpower & Reserve Affairs)