Search Decisions

Decision Text

AF | PDBR | CY2012 | PD-2012-01560
Original file (PD-2012-01560.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2012-01560    
BRANCH OF SERVICE: NAVY  BOARD DATE: 20140123
SEPARATION DATE: 20080604                


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Petty Officer Second Class/E-5 (SK2, Storekeeper) medically separated for a lumbar spine condition. CI presented with approximately six months chronic lower back pain (LBP) of with no trauma or particular event associated with the onset. He was diagnosed with lumbar degenerative disc disease (DDD). The lumbar DDD 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 [LIMDU] and referred for a Medical Evaluation Board (MEB). The lumbar spine condition was found medically unacceptable, and was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The PEB initially found him fit for duty. The CI did not concur with the PEB findings, and requested reconsideration. In February 2008, a Reconsideration PEB was convened and the CI was found unfit due to lumbar DDD. A second lumbar spine condition (Intervertebral protrusion) was adjudicated as Category II (related to the unfitting lumbar DDD condition). The CI was then medically separated with a disability rating of 0%.


CI’s CONTENTION: “The Veterans Administration decided my rating at 40%. Prior to my date of discharge there was a small central prolapse L5-S1 as well as advanced degenerative disc disease T10-11-12 combined with a right knee ACL replacement, meniscus debridement and repair of a fractured patella. These conditions still exist and have led long periods of pain and discomfort. My spouse is active duty Navy and we are stationed in Germany. As such, most of my medical history is in the military system and not the VA system. Back and knee pain plague me to this day to include having an elevated work space and wearing knee supports daily. The back and knee injuries have also been a contributing factor in restricting the amount of exercise I can perform leading to dangerous weight gains reaching a maximum weight of 320 pounds.”


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 requested by the CI. The rating for the unfitting lumbar degenerative disc disease is addressed below. The second PEB condition, intervertebral protrusion, is also addressed below. No other conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions outside the Board’s defined scope of review may be eligible for consideration by the Board for Correction of Naval Records (BCNR).


RATING COMPARISON :

Navy Reconsideration PEB – dated 20080220
 VA Rating Decision – dated 20090416
Condition
 Code Rating Condition Code Rating Exam
Lumbar DDD 5237 0% DDD of Lumbar Spine 5237 20% 20090223
Intervertebral Protrusion Category II
No Additional MEB/PEB Entries
 Other x 7 20090223
Combined: 0%
 Combined: 40%
Derived from VA Rating Decision (VA RD ) dated 200 90 416 (most proximate to date of separation )
ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his conditions continue to burden him, and the significant impact they have had on his quality of life. It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate service members for future severity or potential complications of conditions. That role and authority is granted to the Department of Veterans Affairs (DVA). The Board evaluates VA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation. While the DES considers all of the CI's medical conditions, compensation can only be offered for those conditions that cut short a service member’s career, and then only to the degree of severity present at the time of separation. The VA, operating under a different set of laws, is empowered to compensate for service-connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment change over time.

Lumbar degenerative disc disease. The CI worked as a storekeeper and his duties involved heavy lifting. He developed LBP with no specific injury or traumatic event associated with the onset. His pain was in the lower back and radiated into the right leg. Magnetic Resonance Imaging (MRI) showed a small, central disc prolapse at L5-S1, with no neuroforaminal narrowing. He was treated with physical therapy (PT) as well as epidural steroid injections, with some improvement. However, his LBP persisted and an MEB was initiated. The MEB physical exam (PE) was in September 2007, 9 months prior to separation. At that exam, there was some paraspinous tenderness, particularly on the right. Reflexes and muscle testing were normal. He was able to flex to mid-calf with mild pain. Lumbar range of motion (ROM) was apparently measured by PT, but that clinical note was not found in the treatment record.

As noted above, the CI was medically separated from service on 4 June 2008. Eight months later, on 23 February 2009, he had a VA Compensation and Pension (C&P) exam. At that time, he reported constant dull LBP and sharp shooting pain that occurred with certain movements. The pain radiated to the right hip and right thigh. PE of the spine showed normal symmetry and curvature. Posture and gait were both normal. There was no muscle spasm, atrophy, guarding or weakness. The CI did have some bilateral tenderness and pain with motion. Motor strength for hip flexion and hip extension was normal. Detailed sensory exam and detailed reflex exam of the lower extremities was normal. Thoracolumbar ROM testing revealed forward flexion of 50 degrees. Thoracolumbar combined ROM was 165 degrees. After three repetitions of ROM, thoracolumbar flexion was 40 degrees.

The Board carefully reviewed all the evidentiary information available and directs attention to its rating recommendation based on the above evidence. The Navy PEB and the VA coded the LBP condition as 5237 (lumbosacral strain), but chose different rating options. The PEB rated it 0%, and the VA assigned a disability rating of 20%. The Board noted that, in the treatment record, there were no thoracolumbar ROM measurements from the September 2007 MEB exam. The Board tried to obtain these measurements with no success. At the February 2009 C&P exam, thoracolumbar forward flexion was 50 degrees. IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a, a 20% rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees.

Therefore, the Board determined that a disability rating of 20% was appropriate. The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition. The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling spine condition which would justify a rating higher than 20%. The Board also considered the CI’s radicular symptoms. After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with satisfactory performance of military duties. The CI’s radicular symptoms were subjective only. There was no unfitting neuropathy present at the time of separation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 20% for the lumbar DDD condition. It is appropriately coded 5242 and IAW VASRD §4.71a, meets criteria for the 20% rating level based on forward flexion greater than 30 degrees but not greater than 60 degrees.

Other PEB Condition. The other PEB condition was “intervertebral protrusion.” This condition was adjudicated by the PEB as Category II (related to and contributing to the unfitting DDD condition). The Board determined that this condition was indeed related to and contributed to the unfitting DDD condition, and did not constitute a separately unfitting condition for disability rating purposes. Therefore, it is appropriate for this condition to be considered as Category II. After due deliberation and consideration of all the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the “Intervertebral protrusion.”


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 lumbar DDD condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, 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
Lumbar degenerative disc disease 5242 20%
COMBINED 20%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120821, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





                          
         XXXXXXXXXXXXXXXXXXXX
         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 10 Feb 14 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 10 Mar 14 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 28 Feb 14 ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (d).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a rating of 30% effective 28 June 2002.

b. XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Temporary
Disability Retired List from 30 October 2008 through 30 April 2009 with a disability rating of
60% with transfer to the Permanent Disability Retired List effective 1 May 2009 with a final
disability rating of 40%.

c. XXXXXXXXXXXXXXXXXXXX, former USN: Disability separation with a final disability rating of 20% (increased from 0%) effective 4 June 2008.


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 complete.



XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel
(Manpower & Reserve Affairs)

Similar Decisions

  • AF | PDBR | CY2014 | PD-2014-02692

    Original file (PD-2014-02692.rtf) Auto-classification: Approved

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. Therefore, based on a thorough review of the evidence in the treatment record, the Board determined that, at the time of separation, a 20% disability rating was appropriate for the CI’s chronic back condition. BOARD...

  • AF | PDBR | CY2013 | PD-2013-02299

    Original file (PD-2013-02299.rtf) Auto-classification: Denied

    Post-Separation) ConditionCodeRatingConditionCodeRatingExam Chronic Neck Pain…524310%Degenerative Disc Disease, Cervical Spine5299-524210%20060731Chronic Low Back Pain…524310%Degenerative Disc Disease, Lumbar Spine524210%20060731Other x 0 (Not In Scope)Other x 7 RATING: 20%RATING: 20% *Derived from VA Rating Decision (VARD)dated 20070215(most proximate to date of separation [DOS]). At pain management visit dated 10 May 2004 the CI reported increased neck and right upper back pain with...

  • AF | PDBR | CY2013 | PD-2013-01730

    Original file (PD-2013-01730.rtf) Auto-classification: Approved

    The VA rated the service connected chronic back condition as degenerative arthritis of the spine (5242-5003) at 10% citing painful motion.Although the PEB and VA used different codes, both codes are rated under the General Rating Formula for Diseases and Injuries of the Spine, based on limitation of thoracolumbar ROM. In the matter of the chronic back pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5242 IAW VASRD §4.71a.There were no other conditions...

  • AF | PDBR | CY2014 | PD-2014-01741

    Original file (PD-2014-01741.rtf) Auto-classification: Approved

    The Informal PEB adjudicated “lumbar degenerative disc disease without neurologic abnormality” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). 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 VA coded the lumbar spine DDD condition as 5242 and...

  • AF | PDBR | CY2012 | PD-2012-01342

    Original file (PD-2012-01342.rtf) Auto-classification: Denied

    Lower extremity sensation, strength and reflexes were normal.According to subsequent VA C&P examinations, the CI underwent back surgery in July 2004 without improvement in his back pain. Except for the VA C&P examination 2 months after separation, examinations in the months during 2003 prior to separation documented back flexion that exceeded 30 degrees and ranged from 45 degrees to “full”ROM and therefore did not support a rating higher than the 20% adjudicated by the PEB or the VA. ...

  • AF | PDBR | CY2014 | PD-2014-01985

    Original file (PD-2014-01985.rtf) Auto-classification: Denied

    According to the VASRD rules for rating the spine in effect at the time of separation thoracic and lumbar spine conditions coded IAW §4.71a are provided a single disability rating and thus the thoracic DDD and the lumbago (listed by the PEB as separate conditions) are subsumed in the §4.71a rating that follows. Since the disability due only to the left foot cannot be isolated by the clinical evidence or from the fitness implications of the bilateral condition, the Board consensus was that...

  • AF | PDBR | CY2014 | PD-2014-01977

    Original file (PD-2014-01977.rtf) Auto-classification: Approved

    The Informal PEB (IPEB) adjudicated “chronic neck pain” and “chronic low back pain” as unfitting, rated 10% and 0%, respectively, for a combined 10% disability, with likely reliance on AR 635-40 for rating. Disk protrusions were noted to decrease from 2005 through 2007 and the mild dilatation of the central thoracolumbar spinal canal (Syrinx) was stable.At the MEB exam, the CI reported back pain exacerbated by activity and rare left leg pain. In the matter of the back condition, the Board...

  • AF | PDBR | CY2014 | PD-2014-01525

    Original file (PD-2014-01525.rtf) Auto-classification: Denied

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of theVASRD standards to the unfitting medical condition at the time of separation. The CI was given a permanent U3 profile for cervical degenerative disease (neck pain) and another medical condition, with a Code C and specific restrictions noted on the profile.The VA C&P exam approximately 2 months prior to separation documented that the CI reported...

  • AF | PDBR | CY2012 | PD2012-00708

    Original file (PD2012-00708.pdf) Auto-classification: Denied

    The PEB rated the condition 10% based on pain on forward motion under the 5295 code for lumbosacral strain. The VA reported 90 degrees of lumbar forward flexion and ROMs were consistent with near-normal ROMs from the AMA guidelines in effect at the time, and the Board adjudged these as slight limitation (IAW 5292, Spine, limitation of lumbar motion). Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXX, DAF Director Physical Disability...

  • AF | PDBR | CY2012 | PD2012 01647

    Original file (PD2012 01647.rtf) Auto-classification: Denied

    invalid font number 31502 Service FPEB – Dated 20030917VA (# Mo. The PEB used these rules to rate the chronic LBP condition, coded 5295 lumbosacral strain, and initially rated at 10% (with characteristic pain on motion). The Board notes that although they did not change the VASRD code, verbiage contained on the FPEB’s findings and recommendations document suggeststhe FPEB may have utilized VASRD code 5293, intervertebral disc syndrome (also in effect at the time of separation) to arrive at...