RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01864
BRANCH OF SERVICE:  NAVY 	BOARD DATE:  20150325
SEPARATION DATE:  20040901

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Second Class Fire Control) medically separated for a back condition.  The back 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 “low back pain” and “left leg pain,” were the only two conditions forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “low back pain” as unfitting, rated 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB adjudicated the “left leg pain” as a Category II condition, one that contributes to the unfitting condition. The CI made no appeals and was medically separated.

CI CONTENTION: The CI writes: “Rating was reached without an included condition (service-connected).”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20040709	VA* - (~1 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LOW BACK PAIN	5243	20%	DDD, L5-S1, W/HNP AND LEFT S1 NERVE IMPINGEMENT	*	10%	20041001	
LEFT LEG PAIN	Category II	RADICULPATHY, LLE	*	10%	20041001	
Other x 0 (Not In Scope)	Other x 2	
RATING:  20#%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20040902 (most proximate to date of separation [DOS]).  *The Rating Decision was not in the file; therefore, we do not know what codes the VA used.

ANALYSIS SUMMARY:

Low Back Pain and Left Leg Pain.  The narrative summary was dated 28 January 2004, 7 months prior to separation.  The CI reported a 2-3 year history of low back pain (LBP) with radiation of pain down his left posterior thigh to the sole of his foot.  He had been treated with medications, duty limitations, and steroid injections with improvement, but not sufficient for him to return to full activity.  On examination, he had a normal gait and heel/toe walk.  The lumbar spine was tender to palpation.  Flexion and extension were full with pain on extension.  Sensation was decreased along the outside of the left leg and foot (L5S1 distribution).  Strength and reflexes were normal.  Provocative testing for nerve root irritation was negative.  A magnetic resonance imaging (MRI) the previous February noted disk desiccation at L5S1 without nerve impingement.  He was placed on LIMDU for 4 months and then adjudicated at PEB.  The Joint Disability Evaluation Tracking System form noted persistent pain and that the CI had declined surgery (for a herniated disc) which was thought to be “not unreasonable.”  

At the VA Compensation and Pension (C&P) examination performed a month after separation, the CI reported severe LBP with radiation to the left lower extremity.  He reported no time lost from work, but did endorse restrictions in activities from the LBP.  On examination, his gait and posture were normal.  There was no atrophy or neurological abnormalities.  The range-of-motion (ROM) was limited and painful (below).  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM (Degrees)	MEB ~8 Mo. Pre-Sep	VA C&P ~1 Mo. Post-Sep	
Flexion (90 Normal)	FULL	70	
Combined (240)	Full	170	
Comment	Extension “discomfort”	Pain with motion	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 20% using the code 5243 (intervertebral disc syndrome) and adjudicated left leg pain as a Category II condition without assigning a separate VASRD code or rating.  The VA rated the back at 10% using the 5243 code and also rated the leg pain at 10% using the code 8520 (paralysis of the sciatic nerve).  The Board first considered if the left lower extremity pain was separately unfitting.  The CI reported pain radiation down the left leg in an L5S1 distribution consistent with the MRI report of a herniated disc at L5S1.  However, the neurological examination showed only sensory loss on the MEB evaluation and was normal on the VA C&P.  The gait and posture were normal as were toe and heel walk.  The Board determined that the evidence does not support a finding of an unfitting radiculopathy at separation.  The Board then considered the back condition.  The ROM was normal on the MEB examination and slightly reduced on the VA C&P.  The latter supports a 10% rating for limited motion and both support a 10% rating for painful motion IAW VASRD §4.59 (painful motion).  The Board found no route to the 20% rating adjudicated by the PEB.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the LBP condition and related (Category II) left leg pain 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 back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended left leg pain conditions, the Board unanimously recommends no change from the PEB determination as Category II and not separately ratable.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131001, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

			XXXXXXXXXXXXXXXXXXXX
President 
DoD Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION 
Ref:	(a) DoDI 6040.44
(b) CORB ltr dtd 2 Jul 15

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, 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:

-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USMC

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel (Manpower & Reserve Affairs)