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AF | PDBR | CY2013 | PD-2013-01214
Original file (PD-2013-01214.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-01214
BRANCH OF SERVICE: NAVY  BOARD DATE: 20141029
SEPARATION DATE: 20040924


SUMMARY OF CASE: The available evidence of record reflects that this covered individual (CI) was an active duty NC1 /E- 6 ( 9585 / Navy Recruiter Canvasser) medically separated for low back pain (LBP) . The condition could not be adequately rehabilitated to meet the physical requirements of his r ating o r satisfy physical fitness standards , so he was placed on limited duty and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “ chronic low back pain , ” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The MEB also identified and forwarded T ype II diabetes, controlled for PEB adjudication. T he I nformal PEB adjudicated “ chronic low back pain ” as unfitting, rated 20 % with application of the VA Schedule for Rating Disabilities (VASRD) . The PEB adjudicated the diabetes as a Category III condition , one that is not separately unfitting and does not contribute to the unfitting condition. The CI made no appeals and was medically separated .


CI CONTENTION: “Unable to perform my duties, and unfit to perform physical fitness test.”


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 back condition is addressed below. N o additional conditions , to include the diabetes, 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 IPEB – Dated 20040819
 VA - (4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5236 20% Lumbar Strain (Claimed as Chronic Lower Back Pain and
 Lumbar Bone Spurs at L4–L5)		 5299-5237 20% 20050127
Other x 1 (Not in Scope)
 Other x 7 20050127
Rated: 20%
 Combined: 50%
Derived from VA Rating Decision (VARD) dated 20050407.


ANALYSIS SUMMARY:

Back Condition. The CI had LBP since a motor vehicle accident (MVA) on 5 July 2001. He was evaluated and treated for the LBP since that date. A chiropractic note on 24 May 2004, cited an examination performed on 25 March 2004, 6 months prior to separation, which found palpable spasm and tenderness over the area of the right sacroiliac joint, positive straight leg raising test for radicular pain at 55 degrees, FABERE (Patrick’s) test and leg lowering tests for sacroiliitis. Reflexes and sensation were normal. There was decreased flexion to 40 degrees before the pain increased in the right sacroiliac/buttock area, and similar increased pain on lateral flexion. A physical therapy note, the next day 26 March 2004 found range-of-motion (ROM) of 75 degrees flexion and 30 degrees of extension.

The narrative summary (NARSUM), performed 3 months prior to separation, notes LBP for approximately 2 years since an MVA that was still under litigation at the time of examination. The CI complained of low lumbar pain with discomfort on the low lumbar right side. Physical examination noted the CI moved slowly. The NARSUM described lumbosacral X-rays were within normal limits, two lumbosacral spine magnetic resonance imaging (MRI) studies without significant pathology and an electromyogram (EMG) and nerve conduction studies that were negative for radicular involvement. NARSUM physical examination found no muscle atrophy, normal sensation, symmetrically hypoactive deep tendon reflexes and negative straight leg-raising test. ROM summarized in the chart below.

At the VA Compensation and Pension (C&P) exam performed 4 months after separation, the CI reported LBP that traveled to the right hip. The pain was described as sharp 9.5/10, elicited by physical activity and stress, occurring 8 times per day, lasting 2 hours. Rest and medications relieved pain and he could function without medications. The examiner documented one episode of incapacitation for 2 days after an emergency room visit. Physical examination revealed normal posture and gait, no muscle spasm, no tenderness, negative straight leg raising pain, no ankylosis of the spine and no radiating pain on movement. ROM was additionally limited by pain and weakness; not fatigue, lack of endurance or incoordination and summarized in the chart below.

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)		 Chiropractor 6 Mo. Pre-Sep (20040325) PT ~6 Mo. Pre-Sep
(20040326)
 MEB ~ 3 Mo. Pre-Sep
(20040624)
 VA C&P ~ 4 Mo. Post-Sep
(20050127)
Flexion (90 Normal) 40 75 30 80 ( 78 )
Extension (30) - 30 0 20 (22)
R Lat Flexion (30) - “WFL” 15 30
L Lat Flexion (30) - “WFL” 15 30
R Rotation (30) - “WFL” 15 30
L Rotation (30) - “WFL” 15 30
Combined (240) - - 90 220
Comment Pain at 40 degrees flexion.
Spasm		 WFL = within functional limits ( Pain)
§4.71a Rating - - 4 0 % 10 %

The Board directs attention to its rating recommendation based on the above evidence. The Board considered VASRD diagnostic code 5236 (sacroiliac injury and weakness) used by the PEB for a 20% rating. The Board found evidence in the NARSUM that met the 40% rating criteria of forward flexion of the thoracolumbar spine of 30 degrees or less using the VASRD General Rating Formula for Diseases and Injuries of the Spine. The Board then considered VASRD diagnostic codes 5299 (rated analogously to) – 5237 (lumbosacral or cervical strain) used by the VA for a 20% rating decision citing only continuation of the PEB’s 20% rating. The VA did not consider their VA C&P examination evidence, which did not approach the 20% rating.

It is obvious that there is a clear disparity between these examinations, with very significant implications regarding the Board's rating recommendation. The Board thus carefully deliberated the probative value assignment to these conflicting evaluations and carefully reviewed the entire file for corroborating evidence from the period preceding separation. The Board must always weigh the probative value of subjective evidence in the context of evaluations directed at disability compensation. Spine joint rating evaluations (MEB and VA) emphasize ROM measurements, which in turn rely on subjective pain thresholds, the latter being intrinsically vulnerable to some loss of objectivity. Members agreed that this factor was a consideration in the consistently variable measurement in the clinical history. The Board found variability in ROM to be congruent with the lack of significant pathology by radiological (MRI) and neurophysiological (EMG) examinations, which might otherwise create a more fixed ROM impairment. Of significant importance, however, is the close temporal alignment of the NARSUM evidence with the date of separation, which must remain as the Board’s definitive benchmark in its recommendations. Members agreed that undue speculation was required to overcome reasonable doubt favoring the CI in this matter. The NARSUM examination was thus granted the higher probative value for a rating determination. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the chronic LBP 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 chronic LBP condition, the Board unanimously recommends a disability rating of 40%, coded 5236 IAW VASRD §4.71a.


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
Chronic Low Back Pain Condition 5236 40%
COMBINED 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130907, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                 
XXXXXXXXXXXXXXX
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 8 Dec 14 ICO XXXXXXXXXXXXXXX
         (c) PDBR ltr dtd 15 Dec 14 ICO XXXXXXXXXXXXXXX
         (d) PDBR ltr dtd 10 Dec 14 ICO XXXXXXXXXXXXXXX
         (e) PDBR ltr dtd 24 Dec 14 ICO XXXXXXXXXXXXXXX
(f) PDBR ltr dtd 18 Dec 14 ICO XXXXXXXXXXXXXXX
(f) PDBR ltr dtd 18 Dec 14 ICO XXXXXXXXXXXXXXX
         (h) PDBR ltr dtd 12 Feb 15 ICO XXXXXXXXXXXXXXX

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. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 40 percent disability rating effective date of discharge.

b. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

c. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 percent disability rating effective date of discharge.

d. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

e. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a disability rating of 40 percent effective date of discharge.

f. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a disability rating of 40 percent effective date of discharge.

f. XXXXXXXXXXXXXXX, former USMC: Disability separation with final disability rating of 20 percent (increased from 10%) effective date of discharge.

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 completed.



         XXXXXXXXXXXXXXX
         Assistant General Counsel
                  (Manpower & Reserve Affairs)

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