RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: navy

CASE NUMBER: PD1100143 SEPARATION DATE: 20020320

BOARD DATE: 20120302

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty AN/E-3 (Airman) medically separated for low back pain (LBP) due to lumbar intervertebral disk syndrome (IVDS). She was treated, but did not respond adequately to fully perform her military duties or meet physical fitness standards. She underwent a Medical Evaluation Board (MEB). Lumbar IVDS was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E. No other conditions appeared on the MEB’s submission. The PEB found the IVDS condition unfitting, and rated it 20% IAW the Veterans’ Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was thus separated with 20% disability.

CI CONTENTION: The CI states, “I was discharged on March 20, 2002. My injury has only gotten worse since my discharge. I believe I should have gotten more than just 20% disability.”

RATING COMPARISON:

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the significant impairment with which her condition continues to burden her. The Board is subject to the same laws for disability entitlements as those under which the military Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate service 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). The Board’s authority resides in evaluating the fairness of DES fitness decisions and rating determinations at the time of separation.

Low Back Pain (LBP). In September 1999, the CI began having LBP that radiated into her buttocks and posterior thighs. She was treated with medication and physical therapy (PT), but her pain did not fully resolve. She was put on limited duty (LIMDU), and referred to orthopedics. Magnetic resonance imaging (MRI) showed intervertebral disc bulges at L4-L5 and L5-S1. There was no objective evidence of neurological involvement, so non-surgical treatment was continued. The CI was offered epidural steroid injections but she declined. An MEB was initiated. At her August 2001 MEB exam, seven months prior to separation, the CI complained of LBP with radiation into both thighs, to the level of the knees. She also reported occasional numbness and paresthesia in both legs. On exam; she had normal gait, normal heel/toe walk, and straight leg raise (SLR) was negative bilaterally. There was tenderness to palpation (TTP) over the spinous processes, but no paraspinal muscle tenderness. Range-of-motion (ROM) testing revealed that she could flex forward and touch fingertips to her mid-calves. Neurological exam (motor and sensory) was grossly normal for both lower extremities.

At her March 2003 VA Compensation and Pension (C&P) exam, one year after separation, the CI reported LBP with radiation to her hips and lower extremities. She also reported intermittent numbness and tingling of the extremities. She had LBP flare-ups twice a week that would last 12-18 hours and were relieved with rest and medication. She did not require any assistive devices for ambulation. On exam; she had normal gait, normal heel/toe walk, and no sensory deficits. No muscle atrophy or weakness was noted. There was evidence of painful motion and some TTP, but no muscle spasm or weakness. MRI revealed early degenerative disc spondylosis at L4-L5 and L5-S1, with diffuse bulging discs but no spinal canal stenosis. Her thoracolumbar ROM from that March 2003 exam is summarized in the chart below.

The VASRD coding and rating standards for the spine, which were in effect at the time of separation, were modified in September 2002, and then were changed again in September 2003. The Board must comply with the DoDI 6040.44 requirement for rating IAW the VASRD in effect at the time of separation from service. At her August 2001 MEB exam, she was able to touch fingertips to mid-calves. At the March 2003 goniometric C&P exam, she had slight limitation of forward flexion, and there was pain with motion. The Board carefully reviewed all available evidentiary information. The Navy PEB and the VA had used similar codes for the low back pain condition. The PEB used VASRD code 5293 (IVDS), and rated her back condition as moderate, with recurring attacks. The Board determined that the PEB had coded and rated the back pain condition appropriately, and that there was insufficient evidence in the service treatment record (STR) to support a higher rating. After due deliberation, and consideration of all the evidence, there was not reasonable doubt in the CI’s favor supporting a change from the PEB’s adjudication of the LBP condition (lumbar IVDS).

Remaining Conditions. Genital warts, hemorrhoids, and other conditions were noted in the DES file. None of them were the basis for LIMDU and none were implicated in the non-medical assessment. 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. Additionally, depression was noted in VA rating decisions after separation, but not documented in the DES file. The Board does not have the authority to render fitness or rating recommendations for any conditions not considered by the DES. 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. In the matter of the low back pain condition, the Board unanimously recommends no change in the PEB adjudication. In the matter of the genital warts, hemorrhoids, or any other conditions eligible for 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.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110322, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans' Affairs Treatment Record

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 16 Mar 12

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandum, approve the recommendations of the PDBR the following individuals’ 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:

Assistant General Counsel

(Manpower & Reserve Affairs)