RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-02092
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20140827
SEPARATION DATE:  20050506

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty MM2/E-5 (Machinist Mate) medically separated for L5-S1 herniated nucleus pulposus (HNP) without myelopathy.  The 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 and referred for a Medical Evaluation Board (MEB).  The L5-S1 HNP without myelopathy condition, characterized as “medically unacceptable” and forwarded to the Physical Evaluation Board (PEB) SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “L5-S1 HNP without myelopathy” as unfitting, rated at 10% with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Conidition [sic] should have been rated higher.” 

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 L5-S1 HNP without myelopathy condition is addressed below and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 20050218	VA - (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L5-S1 Herniated Nucleus Pulposus without Myelopathy	5237	10%	L5-S1 Herniated Nucleus Pulposus L5-SL, SP Operative	5243	10%	20050726	
No Other Items In Scope	Other x 2 (Not in Scope)		
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20051024 (most proximate to date of separation)

ANALYSIS SUMMARY:

L5-S1 Herniated Nucleus Pulposus without Myelopathy Condition.  The narrative summary, on 11 January 2005, 4 months prior to separation, notes the CI had an injury on 18 August 2001.  He was lifting a heavy piece of equipment and felt a popping feeling of lower back, sat down for a few minutes and returned to work.  Gradually the pain worsened to the point that he could not put his socks and shoes on.  Previous non-surgical treatments were activity modification, avoidance of aggravating activity, pain medication, anti-inflammatory medications, muscle relaxants, ice, heat, traction, home physical therapy, massage therapy, pain clinic and epidural steroid injections.  The CI had a L5-S1 minimally invasive lumbar interbody fusion surgery, on 30 August 2004.  The pain was stable, occurring with extremes of flexion and increased activity.  Pain was constant rated as 3/10 to 4/10, that increased up to an rating of 5/10 to 6/10 without radiation but did have rare tingling sensation of the buttocks.  The CI felt he could not perform his sea duties and requested a PEB.  There was no current physical examination cited on the note.  On 10 March 2005, orthopedic follow-up, by the same examiner, documented a lumbar spine with symptoms unchanged, continuing mild low back pain mostly at night and physical examination findings of minimal spasms and no neurological deficits.

At the VA Compensation and Pension exam performed on 26 July 2005 (2 months after separation), the CI reported radiating pain to both legs was relieved after lumbar spine surgery.  He reported a pain that felt like heaviness of the lower back, 6/10 increasing to 8/10 when exacerbated, lasting for 24-48 hours and aggravated by bending, twisting, lifting, sitting or standing for a long time.  Pain was relieved by non-steroidal anti-inflammatory (Ibuprofen) medication, modification of activity and rest.  The CI denied any incapacitating episodes in the last 12 months and there were no limitations of activities of daily living.  Physical examination of the lumbar spine found pain on motion, muscle spasm, surgical scar of the lower back, flattening of lumbar lordosis and tender paravertebral muscle spasms.  Sensation was intact, motor power was normal and reflexes were normal.  Forward flexion of the spine was measured at 70 degrees and then decreased to 60 degrees after 10 repetitions by increased pain; extension was 15 degrees, right and left rotation 10 degrees, right and left side bend 15 degrees, without additional limitations after 10 repetitions.  X-rays of the lumbar spine found remote surgical changes with metallic plate and screws at L5-S1.

The Board directed attention to its rating recommendation based on the above evidence.  The Board first considered VASRD diagnostic code 5237 (lumbosacral or cervical strain) used by the PEB for a 10% rating.  There were no goniometric ranges of motion found in the service treatment record.  However, pain with extreme flexion and increased activity was documented at physical therapy follow-up on 9 December 2004 described as moderate decrease in active ROM with flexion.  Orthopedic follow-up note on 11 January 2005 also documented pain with extremes of flexion.  The only goniometric ROMs in evidence were 2 months after separation.  The Board determined that the measurements were consistent with the pathology, radiological findings of a metallic plate and screws, clinical history and prior examinations; thus, these ROM were used for a rating recommendation.  The Board also considered functional loss lAW VASRD §4.10 (functional impairment), §4.40 (functional loss), §4.45 (DeLuca) and §4.59 (painful motion) for a rating recommendation.  Using the 60 degrees measurement after 10 repetitions, the Board found the CI met the higher 20% rating criteria under the General Rating Formula for Diseases and Injuries of the Spine.  

The Board also considered code 5243 (intervertebral disc syndrome), used by the VA for a 10% rating.  There were no incapacitating episodes in the clinical record for a higher rating using this code, which can alternately be rated under the general rating formula.  The general rating formula rating recommendation subsumes “symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.”  There were no neurological findings for additional or alternate coding for a rating in the CI’s favor.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the L5-S1 HNP without myelopathy condition.

BOARD FINDINGS:  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 L5-S1 HNP without myelopathy condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  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 his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
L5-S1 Herniated Nucleus Pulposus without Myelopathy Condition	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131028, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXX
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 14 Apr 15 ICO XXXXXXXXXXXXXXX
	 (c) PDBR ltr dtd 7 Apr 15 ICO XXXXXXXXXXXXXXX 
	 (d) PDBR ltr dtd 14 Apr 15 ICO XXXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 14 Apr 15 ICO XXXXXXXXXXXXXXX
       (f) PDBR ltr dtd 21 Apr 15 ICO XXXXXXXXXXXXXXX
                 
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: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge. 

     b. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 0 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USMC:  Entitlement to disability severance pay with a disability rating of 10 percent (increased from 0 percent) effective date of discharge. 

     e. XXXXXXXXXXXXXXX, former USN: Retroactive placement on the Temporary Disability Retired List with a disability rating of 50 percent for the 6 months immediately preceding discharge followed by disability separation effective date of discharge with a 10 percent disability rating. 

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)