RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:                                                                   xxxx
                       BRANCH OF SERVICE:  navY
CASE NUMBER:  PD1000496                                    SEPARATION  DATE:
20020816
BOARD DATE:  20110624


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual (CI) was  an  active  duty  ABF  3/E-4
(Aviation Boatswain’s Mate-Fuels), medically separated  for  chronic  lumbar
pain, without focal neurologic deficits.  The CI injured his neck  and  back
in March 2001 when his motorcycle was struck by a  commercial  vehicle.   In
June 2001, he was placed on an eight month period of limited duty  for  both
conditions.   Despite  conservative  management  to  include  facet  steroid
injections, the CI did not respond adequately to treatment  and  was  unable
to perform the duties of his rate or meet physical  fitness  standards.   He
underwent a Medical Evaluation  Board  (MEB).   The  MEB  forwarded  chronic
cervical pain and chronic lumbar pain  (without  focal  neurologic)  to  the
Physical Evaluation Board (PEB) as  medically  unacceptable  IAW  SECNAVINST
1850.4E.  The Informal PEB (IPEB) determined the CI as  fit  for  duty.   He
appealed to the Reconsideration PEB which adjudicated  chronic  lumbar  pain
without  focal  neurologic  deficits  as  unfitting,  rated  at  10%,   with
application  of   the   Veterans’   Administration   Schedule   for   Rating
Disabilities (VASRD).  The CI made no further appeals  prior  to  separation
and was medically separated with a 10% combined disability rating.  In  June
2004, the CI appealed to the Board of Corrections for  Navy  Records  (BCNR)
for the addition of  other  conditions  to  his  unfitting  rating  but  the
application was denied.


CI CONTENTION:  “My rating was only evaluated on one  condition  and  should
have been on multiple conditions as the VA  rated  me.   The  DOD  found  me
unfit at 10%; however, the VA’s initial rating for me was found  to  be  50%
and is now 80% permanent and total.”


RATING COMPARISON:

|Service IPEB (Recon) – Dated   |VA (5 Mo. Pre-Separation) – All Effective|
|20020725                       |Date 20020817                            |
|Condition                      |Code                              |Rating |
|Combined:  10%                 |Combined:  50%*                          |


*Lumbar increased to 20% effective 20050913; Adjustment disorder changed  to
Major depressive d/o and rated 30% effective 20030715 (combined  60%);  Neck
injury HA changed to Migraine HA and increased  to  50%  effective  20050302
(combined 80%)


ANALYSIS SUMMARY:  The Board acknowledges the  sentiment  expressed  in  the
CI’s application regarding the significant impact that his  service-incurred
conditions have had on his current  earning  ability  and  quality  of  life
reflected  in  his  higher  total  VA  disability  rating.    However,   the
Disability Evaluation System (DES) is responsible for maintaining a fit  and
vital fighting force.  While the DES considers all of the  service  member's
medical conditions, compensation can  only  be  offered  for  those  medical
conditions that cut short a service member's career, and then  only  to  the
degree of severity present at the time of final disposition.   However,  the
Department of Veterans’ Affairs, operating under a different  set  of  laws,
is empowered  to  periodically  re-evaluate  veterans  for  the  purpose  of
adjusting the disability rating should the degree of  impairment  vary  over
time, as well as considering  service  incurred  conditions  that  were  not
unfitting for continued service.

Chronic Lumbar Pain Condition.  The 2002 VASRD coding and  rating  standards
for the spine were in effect at the  time  of  separation,  modified  on  23
September 2002 to add  incapacitating  episodes  (5293  intervertebral  disc
syndrome) and then changed to the current §4.71a rating standards  in  2004.
The 2002 standards for rating based on  range  of  motion  (ROM)  impairment
were subject to the rater’s opinion regarding degree  of  severity,  whereas
the  current  standards  specify  rating  thresholds  in  degrees   of   ROM
impairment.  There were two lumbar spine evaluations in evidence  which  the
Board primarily weighed in arriving at its rating recommendation.  The  exam
findings are summarized in the chart below.

|ROM -            |MEB ~6 Mo. Pre-Sep |VA C&P ~ 5 Mo.    |
|Thoracolumbar    |                   |Pre-Sep           |
|Flex (0-90)      |Able to touch      |0-90⁰             |
|                 |distal shins       |                  |
|Ext (0-30)       |-                  |0-30⁰             |
|R Lat Flex (0-30)|-                  |0-35[sic]⁰ (30⁰)  |
|L Lat Flex 0-30) |-                  |0-35[sic]⁰ (30⁰)  |
|R Rotation (0-30)|-                  |-                 |
|L Rotation (0-30)|-                  |-                 |
|COMBINED (240)   |-                  |-                 |
|Comment          |L spine tender with|Slight limp; No   |
|                 |slight spasm; ROM  |spasm or loss of  |
|                 |limited in all     |lordosis; No loss |
|                 |planes by pain;    |of motion due to  |
|                 |normal motor and   |exacerbations of  |
|                 |DTRs, Neg SLR; Pos |discomfort, SLR   |
|                 |Faber’s            |neg; 4/5 weakness |
|                 |                   |L leg             |
|§4.71a Rating    |10%                |10%               |

The MEB exam noted some limitation of ROM due to pain,  without  documenting
measurements, and commented on the  presence  of  mild  spasm,  with  normal
strength and full DTRs.  Conversely, the VA compensation and  pension  (C&P)
exam documented full ROM of the lumbar spine,  without  additional  loss  of
motion due to  exacerbations  of  discomfort.   Additionally,  the  VA  exam
documented mild weakness of the left lower extremity and a slight  limp.   A
computed tomography  myelogram  study  of  the  thoracic  and  lumbar  spine
documented left paracentral disk herniation  at  L4-5  with  mild  left  L-6
intradural nerve root sheath impingement,  and  T5-6  disk  herniation  with
only minimal impingement upon the thecal sac.  No surgical intervention  was
planned or indicated.  The MEB narrative  summary  (NARSUM)  examiner  noted
that  the  CI  required  narcotic  pain  medication  for  his  chronic  pain
symptoms.  A statement to the PEB from the CI’s Leading Chief Petty  Officer
(LCPO) noted that the CI’s “abilities to perform  the  duties  of  his  rate
have been severely limited due to his injuries.  His rate  requires  him  to
frequently climb, pull and lift heavy equipment.”

The PEB and the VA chose similar coding and  rating  for  the  lumbar  spine
condition.  The PEB coded 5299-5295, analogous to  lumbosacral  strain;  and
the VA coded 5295-5293 for lumbosacral strain  analogous  to  intervertebral
disc syndrome.  The PEB worksheet  indicate  that  the  Reconsideration  PEB
rated for pain at 10%, “in spite of  subjective  evidence  of  exaggeration,
3/5 Waddell’s.”  The VA rated at 10% for  painful  limitations  with  slight
left lower extremity weakness.  Neither exam  documented  significant  spasm
on extreme forward bending, loss of lateral motion,  or  moderate  recurrent
attacks to justify  the  higher  20%  rating.   There  was  no  evidence  of
incapacitating episodes  or  significant  symptoms  of  sciatic  neuropathy,
either persistent or with recurring attacks.
Although the CI complained of bilateral lower extremity weakness  there  was
no convincing evidence of peripheral  nerve  impairment.   The  VA  examiner
documented  some  mild  weakness  in  the  left  lower  extremity;  however,
multiple exams in the service treatment records  documented  full  strength,
normal sensation and full deep tendon reflexes.  Additionally, the MEB  exam
noted that there was no atrophy or fatigability of the  calf  muscles.   All
exams documented negative straight leg raise and crossed straight leg  raise
testing.  The VA considered the mild left lower extremity weakness noted  at
the C&P exam in their 10%  rating  for  the  lumbar  spine  condition.   All
evidence considered, there  is  not  reasonable  doubt  in  the  CI’s  favor
supporting a change from the PEB’s rating decision for  the  chronic  lumbar
pain condition.

Other PEB Conditions.  Magnetic resonance  imaging  (MRI)  of  the  cervical
spine documented a “tiny” right  postero-lateral  disc  protrusion  at  C6-7
causing mild narrowing of the right neural foramen without cord  impingement
or compression.  Although this condition did result in a limited  duty,  the
treatment records indicate that this condition  had  been  improving  during
the MEB  period.   Additionally,  the  duty  limitations  specified  in  the
supporting statement from the LCPO indicated limitations  referable  to  the
unfitting chronic lumbar pain condition.  All evidence considered, there  is
not reasonable doubt in the CI’s favor supporting recharacterization of  the
PEB fitness adjudication for the chronic cervical pain condition.

Other  Contended  Conditions.   Thoracic  disc   protrusion,   neck   injury
headaches, adjustment  disorder  and  tinnitus  conditions  were  considered
mentioned  in  the  DES  file  which  included  the  BCNR  application   and
determination.  After the accident that resulted in his lumbar and  cervical
spine  injuries,  the  CI  also  developed  thoracic  spine   symptoms   and
headaches.  The CI was diagnosed with a thoracic  disc  herniation  at  T5-6
with only minimal impingement upon the thecal sac.  The CI’s headaches  were
attributed to his chronic cervical pain.  Review of the STR’s show that  the
CI was treated for adjustment  disorder  with  depressed  mood  periodically
since approximately 1999.  The CI sought evaluation for  tinnitus  in  2002.
None of these conditions resulted in any specific duty  limitations.   These
conditions were reviewed by the action officer and considered by the  Board.
 It was determined that none could be argued as  unfitting  and  subject  to
separation rating.

Remaining Conditions.  Other conditions identified  in  the  DES  file  were
knee pain, trouble sleeping, and decreased vision in  right  eye.   None  of
these conditions were clinically or occupationally  active  during  the  MEB
period and none were the basis for  limited  duty.   These  conditions  were
reviewed by the  action  officer  and  considered  by  the  Board.   It  was
determined that none could be argued as unfitting and subject to  separation
rating.  The Board therefore has no reasonable basis  for  recommending  any
additional unfitting conditions for separation 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.  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 low  back  pain  condition  and  IAW  VASRD
§4.71a,  the  Board  unanimously  recommends  no  change  in  the  PEB   10%
adjudication.  In the matter of the  cervical  spine  condition,  the  Board
unanimously recommends no recharacterization of the PEB adjudication as  not
unfitting.  In the matter of  the  thoracic  disc,  neck  injury  headaches,
adjustment disorder and tinnitus conditions or any other medical  conditions
eligible for Board consideration,  the  Board  unanimously  agrees  that  it
cannot recommend any findings of unfit for additional rating at separation.

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  |
|Chronic Lumbar Pain,                              |5299-5295   |10%     |
|COMBINED    |10%     |


____________________________________________________________________________
__

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20100430, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.




                                        Deputy Director
                                                                    Physical
Disability Board of Review


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

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION
            ICO XXX, FORMER USN, XXX-XX-XXXX

Ref:   (a) DoDI 6040.44
          (b) PDBR ltr dtd 1 Aug 11

      I have reviewed the subject case pursuant to reference (a) and, for
the reasons set forth in reference (b), approve the recommendation of the
PDBR XXXs’ records not be corrected to reflect a change in either his
characterization of separation or in the disability rating previously
assigned by the Department of the Navy’s Physical Evaluation Board.



      Assistant General Counsel
                                        (Manpower & Reserve Affairs)