Search Decisions

Decision Text

AF | PDBR | CY2012 | PD2012 01019
Original file (PD2012 01019.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xx        CASE: PD1201019
BRANCH OF SERVICE: NAVY         BOARD DATE: 20130509
SEPARATION DATE: 20030502


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO2/E-5 (HM2/Corpsman) medically separated for a lumbar spine condition. His spine condition began in 1996 with no trauma or specific circumstance identified as the precipitating factor. Despite surgery, the back could not be adequately rehabilitated to meet the physical requirements of his rating or satisfy physical fitness standards. He was placed on limited duty least twice and referred for a Medical Evaluation Board (MEB). The lumbar spine condition, characterized as status post (s/p) L2-S1 Texas Scottish-Rite Hospital (TSRH) instrumentation and fusion, and s/p L4-L5 discectomy for a herniated nucleus pulposus was forwarded to the Informal Physical Evaluation Board (IPEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The IPEB adjudicated s/p l2 to s1 TSRH instrumentation and fusion for degenerative disc disease as unfitting, rated 20% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The IPEB adjudicated the status post (s/p) L4-5 discectomy for a herniated nucleus pulposus as Category II, a condition that contributes to the unfitting condition. The CI appealed to the Formal PEB (FPEB) which affirmed the IPEBs findings. The CI then requested a Petition for Relief (PFR). The PFR upheld the FPEBs decision, and the CI was separated with a 20% disability rating.


CI CONTENTION: The CI elaborated no specific contention in his application.


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 spine 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 FPEB – Dated 20020119
 VA - (8 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
S/P L2 TO S1 TSRH INSTRUMENTATION AND FUSION FOR DEGENERATIVE DISC DISCEASE 5292 20% S/P SPINAL FUSION L2-S1 5241 40% 20040115
S/P L4-5 DISCECTOMY FOR A HERNIATED NUCLEUS PULPOSUS Category II No VA Entry
No Additional MEB/PEB Entries
 Other x 2 2040115
Combined: 20%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 40323 ( most proximate to date of separation [ DOS ] ).
ANALYSIS SUMMARY:

Lumbar Spine Condition. The narrative summary notes that the CI was seen for the first time in the neurosurgery clinic in June 2000 for low back pain (LBP) and numbness in the anterior thigh. After a year of conservative treatment, he had an L4-5 discectomy. Although that surgery resulted in some improvement in pain, a degree of pain persisted. Since a magnetic resonance imaging exam showed diffuse spondylitic changes, surgery was again suggested. On 31 July 2001, the CI underwent an L2 to S1 TRSH instrumentation and fusion operation. Pain improved postoperatively and follow-up evaluations indicated a good response to surgery without complications. At the MEB exam in June 2002, 10 months following the surgery and 11 months prior to separation, the CI reported that his pain was gone but that his back felt stiff as a result of the fusion. The MEB physical exam noted decreased range-of-motion (ROM) in the flexion, extension and rotational planes, but no measurements are documented. The examiner noted that the CI was unable to do a sit reach and could not run or do sit-ups. He was able to work in the outpatient clinic, but he was unable to pass the physical readiness training (PRT). Although his physician had hoped that stretching exercises would improve the situation, it had not improved and the CI felt he could not remain on active duty.

The non-medical assessment (NMA) noted that the CI had not been able to work in his billet as a medical Corpsman for more than a year because of the physical demands of that duty. In addition, he had not been able to participate in the PRT program for an even longer period of time and his weight had increased to the point where it exceeded the Navy’s weight and body fat standards. The NMA describes the difficulty experienced by the CI in standing or bending for long periods which interfered with his ability to provide patient care. It also described the significant impact of the CI’s condition on his ability to care for his own personal hygiene. “He often has requested temporary absences from work in order to shower due to his inability to fully complete hygiene after a bowel movement.” As part of the CI’s later appeal to the PEB, the CI submitted, among others, a letter from the surgeon who performed the fusion operation. In it the surgeon stated his opinion that the effect of a fusion procedure as extensive as the one he performed on the CI was that “it eliminates almost all motion in the lumbar spine. Although the pain is relieved, it is relieved at a considerable cost.” He characterized the loss of motion of the lower lumbar spine as “significant.” The FPEB was with a personal appearance and their second to last paragraph stated: “While the member has had significant reduction in range of motion of the lumbar spine as a result of the surgical procedure that relieved his debilitating low back pain, he still retains minimal range of motion at L1/L2 and T12/L1.” At the VA Compensation and Pension (C&P) exam performed 8 months after separation, the CI reported that since his surgery, he continued to have difficulties with activities of daily living. He described difficulty bending to tie his shoes and had a markedly diminished ROM. However, the intensity of his pain had decreased. Exam noted that “he has difficulty bending and cannot tie his shoes at office visit.”

The Board directs attention to its rating recommendation based on the above evidence; noting that the CI was separated just prior to a significant change in VASRD codes and criteria for the spine. The older codes and criteria were applied to rating by the FPEB, and the new codes and criteria were in effect for the VA ratings. The Board’s recommendation, IAW DoDI 6040.44, must be premised on the VASRD in effect at separation; although, the VA exam evidence of course remains probative to the Board’s recommendation under the applicable VASRD criteria. The 2003 VASRD coding and rating standards for the spine (effective at separation) differ significantly from the current §4.71a general rating formula for the spine (effective for VA rating). The lumbar spine was considered and rated as a separate spine segment from the thoracic spine (not combined as a thoracolumbar spine segment under current rating criteria). The applicable coding options for this case are excerpted below.


5289 Spine, ankylosis of, lumbar:
Unfavorable.........................................................................50
Favorable.............................................................................40

5292 Spine, limitation of motion of, lumbar:
Severe ................................................................................40
Moderate ...........................................................................20
Slight ..................................................................................10

The PEB characterized the back condition as status post L2 to S1 TSRH instrumentation and fusion for degenerative disc disease coded as 5292 and rated at 20%. In explaining the reasoning behind its decision, the FPEB stated that “while the member has had significant reduction in range of motion of the lumbar spine as a result of the surgical procedure that relieved his debilitating low back pain, he still retains minimal range of motion at L1/L2 and T12/L1.” The VA, in its rating decision stated that forward flexion was “severely restricted beyond the criteria for a 20% evaluation. Additionally the spinal fusion would be equivalent to ankylosis of the lumbar spine, warranting the 40% evaluation.” The VA rating was specified as for “limitation of range of motion an evaluation of 40% would be granted for severe limitation of motion of the lumbar spine.” The VA characterized the back condition as s/p spinal fusion L2-S1 coded 5241 (spinal fusion, per new spine rules in effect at the time of the VA rating) and awarded a 40% rating. There was no fixed neurologic or motor deficit, and no post-surgical periods of incapacitation noted in the treatment records.

In the absence of objective goniometric ROM data, the Board discussed the degree of limitation of motion demonstrated in the available evidence and its impact on the CI’s activities of daily living. In this regard, it considered that the surgeon’s opinion expressed in the letter he wrote to the PEB describing the CI’s “significant” limitations, and the FPEBs determination of significant reduction in ROM (“retains minimal range of motion at L1/L2 and T12-L1”) should be assigned a high degree of probative value. In addition, the description of the CI’s limitations noted in the NMA was consistent with the surgeon’s view that the limitations were significant. The Board discussed the initial PEB rating and the PEB Worksheet Joint Disability Evaluation Tracking System indication that the CI’s inability to “do the sit-reach or sit-ups for the PRT, but I suspect this is as much due to his being 90 lbs overweight as having back problems.” Review of the medical records did not indicate that lumbar spine ROM was due to body habitus, and contra wise indicated the spinal fusions were the cause of the limited lumbar ROM. The Board did not concede that the limited lumbar ROM would be equivalent to ankylosis. The Board majority concluded that the degree of limitation of movement reflected in the available data was most appropriately described as “severe” thus warranting a rating of 40% under the 5292 coding option. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 40% for the lumbar spine 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 lumbar spine condition, the Board by a vote of 2:1 recommends a disability rating of 40%, coded 5292 IAW VASRD §4.71a. The single voter for dissent (who recommended no change in the PEB adjudication) submitted the appended minority opinion. 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
S/P L2 TO S1 TSRH Instrumentation and Fusion for Degenerative Disc Disease 5292 40%
COMBINED
 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120625, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         xx
         President
         Physical Disability Board of Review


 invalid font number 31502 MINORITY OPINION invalid font number 31502 : invalid font number 31502

The crux of this case and sole foundation for the majority recommendation, a permanent separation of 40% for d egenerative d isk d isease s/p L2 to S1 TSRH instrumentation and fusion, was their interpretation that the condition merited a severe rating under VASRD code 5292, s pine, limitation of motion of, lumbar. My review of the documentation indicated that the rating more closely approximated the moderate, or 20%. At the time of separation, the 5292 code was interpreted under the interim spine rules which rated the thoracic and lumbar spine segments separately. The VA rated the CI approximately 8 months post-separation using the new spine rules, rating rating 40%, using code 5241, spinal fusion, stating, “the spinal fusion would be equivalent to ankylosis of the lumbar spine, warranting the 40% evaluation.”

Interpretation of back conditions, especially when members were discharged before the new rules became effective, yet rated by the VA after they were in effect, is challenging. However, DoDI 6044.44 directs that the Board “reassess the accuracy and fairness of the combined disability ratings” and that we must “use the VASRD in arriving at its recommendations, along with applicable statues, and any directives in effect as the time o f the contested separation….”

There was no specific circumstance identified as the precipitating factor in the CI’s back condition. The surgery performed alleviated much of the CI’s back pain, but it did leave him with limited motion. The initial PEB rated the condition at 20%, using VASRD code 5292. The CI non-concurred with the PEBs adjudication and requested a FPEB. The FPEB reviewed the PEBs decision, along with eight exhibits submitted by the CI and his counsel. The FPEB wrote, “after careful review of all the available evidence, and based on a unanimous opinion, the Formal Board finds that the member is unfit for….the total combined disability rating is 20%.” The CI non-concurred with the FPEB and requested a PFR.

A PFR can be submitted based on three possibilities: (1) new or newly discovered evidence, (2) fraud, misrepresentation or other misconduct, and (3) mistake of law. The CI chose to submit newly discovered evidence from his surgeon. However, the review of the evidence by the PFR indicated that, “While possibility being more accurate, the addition of the diagnoses listed in the Dr. R --- letter would not have resulted in a higher or additional disability rating.”

Based on an entire review of the file the minority voter could not find enough evidence to overturn the rulings of a FPEB and a PFR . The minority voter understands the differences that can occur when using the interim spine rules whose interpretations are more subjective than the newer spine rules; however, the CI used every available legal means to have his case reviewed, and at each juncture, even with the additional information submitted, the original decision was upheld. He also had the option of presenting his case to the Board for Correction of Naval Records, but for whatever reason, chose not to pursue that option.

I respectfully submit that the Secretary consider a minority recommendation that the permanent rating for the chronic LBP condition remain at 20%.

 RECOMMENDATION : The minority voter therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
S/P L2 to S1 TSRH Instrumenation & Fusion, DDD
 5292 20%
COMBINED
 20%
invalid font number 31502
invalid font number 31502


MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
          COMMANDER, NAVY PERSONNEL COMMAND
                                          
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 9 Aug 13 ICO
(c) PDBR ltr dtd 17 Jul 13 ICO
(d) PDBR ltr dtd 16 Jul 13 ICO
(e) PDBR ltr dtd 9 Aug 13 ICO
(f) PDBR ltr dtd 9 Aug 13 ICO
(g) PDBR ltr dtd 29 Jul 13 ICO
(h) PDBR ltr dtd 8 Aug 13 ICO

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

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

a. former USMC : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 15 October 2001.

b. former USN : Disability retirement with assignment to the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective 2 May 2003.

c. former USN : Disability retirement with assignment to the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective 2 June 2009.

d. former USN : Disability separation with a final disability rating of 20 percent increased from ten percent) effective 5 October 2004.

e. former USMC : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 31 July 2002.

f. former USMC : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 1 August 2005.

g. former USMC : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 2 July 2002.
        
3. Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.

 xx
                                                       Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

Similar Decisions

  • 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...

  • AF | PDBR | CY2014 | PD-2014-00261

    Original file (PD-2014-00261.rtf) Auto-classification: Denied

    Post-Separation)ConditionCodeRatingConditionCodeRatingExam Herniated Disc L4-5 with DDD524320%Lumbar Spine Strain523740%20070829Sciatic Nerve with L1-4 RL Radiculopathy852020%20070829Other x2 (Not in Scope)Other x920070829 Combined: 20%Combined: 90%Derived from VA Rating Decision (VARD) dated 20071023 (most proximate to date of separation) invalid font number 31502 ANALYSIS SUMMARY :IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability...

  • AF | PDBR | CY2012 | PD-2012-01101

    Original file (PD-2012-01101.txt) Auto-classification: Approved

    Post-Separation) – All Effective Date 20020614 Condition Code Rating Condition Code Rating Exam Back Pain 5299-5295 10% L4-L5 Spondylolithesis s/p fusion 5299-5292 10% 20021227 .No Additional MEB/PEB Entries. VA radiographs (over 20 months after surgery) stated “There is wedging of L5. RECOMMENDATION: The Board recommends that the CI‘s prior determination be modified as follows, effective as of the date of her prior medical separation: UNFITTING CONDITION VASRD CODE RATING Back Pain After...

  • AF | PDBR | CY2012 | PD 2012 00992

    Original file (PD 2012 00992.txt) Auto-classification: Approved

    RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200992 SEPARATION DATE: 20020722 BOARD DATE: 20130207 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (63B/Light Vehicle Mechanic), medically separated for low back pain (LBP) post L5/S1 fusion. The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication....

  • AF | PDBR | CY2012 | PD2012-00748

    Original file (PD2012-00748.pdf) Auto-classification: Denied

    RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200748 SEPARATION DATE: 20020711 BOARD DATE: 20121218 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E‐5 (92G20/Food Service Specialist), medically separated for chronic mechanical low back pain (LBP), multifactorial with spondylolysis L5/S1, facet hypertrophy, and degenerative disc...

  • AF | PDBR | CY2013 | PD-2013-01840

    Original file (PD-2013-01840.rtf) Auto-classification: Denied

    invalid font number 31502 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, the Board unanimously recommends a disability...

  • AF | PDBR | CY2014 | PD-2014-00351

    Original file (PD-2014-00351.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 Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. The “General Rating Formula for Diseases and Injuries of the Spine...

  • AF | PDBR | CY2013 | PD-2013-01653

    Original file (PD-2013-01653.rtf) Auto-classification: Denied

    RECORD OF PROCEEDINGSPHYSICAL DISABILITY BOARD OF REVIEWNAME: XXXXXXXXXXXX CASE: PD-2013-01653 BRANCH OF SERVICE: Army BOARD DATE: 20140805 With the combination of therapy and medication (Celexa and Serzone), the CI reported improved symptoms, including denial of suicidal ideation and the psychiatrist noted that his MDD was in “partial remission.” The commander’s memorandum to the MEB (submitted after his hospitalization) reported that the CI’s work performance had always been...

  • AF | PDBR | CY2013 | PD2013 01713

    Original file (PD2013 01713.rtf) Auto-classification: Denied

    The PEB adjudicated “chronic low back pain (LBP) status post (s/p) L5/S1 fusion” as unfitting, rated 10%, citing criteria of the VA Schedule for Rating Disabilities (VASRD). Should the Board judge that a condition was most likely incompatible with the specific duty requirements, a disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended. invalid font number 31502 ” The CI had chronic LBP and ROM flexion limited to 80 degrees at the MEB exam.

  • AF | PDBR | CY2013 | PD2013 02110

    Original file (PD2013 02110.rtf) Auto-classification: Denied

    His also complained of sleep issues,which were considered to meet retention standards. Surgery was not indicated.The MEB separation examination on 5 May 2009 (6 months prior to separation) noted no back tenderness or muscle spasm. The VA examination meanwhile showed completely normal ROM and no additional limitation after repetition.