RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02531
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20140820
SEPARATION DATE:  20041201

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LTJG (2905/1964/Neonatal Intensive Care Unit Registered Nurse) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of her rating or satisfy physical fitness standards.  She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “L5-S1 symptomatic degenerative disk” and “status post (s/p) L5-S1 transforaminal lumbar interbody fusion (TLIF) with instrumentation,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “s/p L5-S1 TLIF with instrumentation” as unfitting, rated 20%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The L5-S1 symptomatic degenerative disk was determined to be a related Category 2 condition.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have my spine fused and am in constant chronic pain.  I need assistance completing my daily functions.  I have had to have my spinal fusion revised using my own personal insurance and I required a C-section to deliver my son because of the injury to my spine.”

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 lumbar back condition is addressed below; 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.  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 VASRD standards, based on ratable severity at the time of separation.

The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; but, must emphasize that 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, operating under a different set of laws.  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.

RATING COMPARISON:

Service IPEB – Dated 20040923 | VA - (2.25 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
S/P L5-S1 Transforaminal… | 5241 | 20% | S/P Transforaminal Interbody Fusion for HNP L5-S1 | 5241-5243 | 20% | 20040924
L5-S1 …Degenerative Disk | CAT 2 | | | |
Other x 0 (Not is Scope) | Other x 2 |
Rating:  20% | Combined:  50%
Derived from VA Rating Decision (VARD) dated 20050419 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

S/P L5-S1 Transforaminal  Lumbar Interbody Fusion (TLIF) with Instrumentation.  The CI first presented with low back pain in January 2003.  Lumbar spine X-rays were normal and she was treated conservatively without resolution of her pain.  A magnetic resonance imaging (MRI) performed on 1 February 2003 showed a herniated disc at L5-S1, which did not impinge the nerve roots.  Electrodiagnostic studies performed on 2 April 2003 were normal.  She continued medications, physical therapy and injections without resolution.  A discogram (a test to reproduce pain in a disc prior to surgery) on 9 September 2003 was positive at the L5-S1 disc consistent with the MRI.  Her pain persisted and a repeat MRI on 18 February 2004 showed impingement on the nerve roots.  She underwent spinal fusion at L5-S1 on 24 February 2004.  Post-operatively, she reported a reduction in her symptoms, but she was not able to return to full duty status and was referred for an MEB.  The narrative summary dated 29 March 2004, initially submitted for an extension of her LIMDU, noted a normal gait and neurological examination.  An orthopedic addendum dated 24 August 2004 noted that her examination was stable and that the range-of-motion (ROM) was full by visual inspection.  Review of the record found no evidence of incapacitation other than convalescence from the surgery.  At the VA Compensation and Pension examination, performed just over 2 months prior to separation, the CI reported that she was working in an administrative position due to her back condition.  She took a non-narcotic pain medication two to three times a week and was able to walk 20-30 minutes daily.  She had not used her back brace for 3 months.  On examination, her gait and posture were normal.  Her back and surgical scar were non-tender.  The ROM was pain free and normal in all planes and DeLuca criteria was negative.  Spasm was not recorded.  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 ~ 3 Mo. Pre-Sep

VA C&P ~ 2.25 Mo. Pre-Sep

Flexion (90 Normal) | “ROM by visual methods are “Normal” | 90
Combined (240) | | 240
Comment | | Full and pain free ROM
§4.71a Rating | 0% | 0%

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA, citing incapacitation of 2 to 4 weeks, both rated the back condition at 20% using the codes 5241(spinal fusion) and 5241-5243 (spinal fusion and degenerative disc disease).  The Board found no route to support a rating higher than the 20%.  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 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 back 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 re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130914, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
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 26 Feb 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:

- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN

						  XXXXXXXXXXXXXXX
	     				  Assistant General Counsel
		  (Manpower & Reserve Affairs)

PD-2013-02531