Search Decisions

Decision Text

AF | PDBR | CY2013 | PD-2013-02185
Original file (PD-2013-02185.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX     CASE: PD-2013-02185
BRANCH OF SERVICE: NAVY  BOARD DATE: 20140709
SEPARATION DATE: 20050823


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty IT2/E5 (IT2/Information Support) medically separated for failed low back surgery syndrome. The back 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 underwent a Medical Evaluation Board (MEB). The MEB found his back condition medically unacceptable, and forwarded it to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. A nerve condition (lumbosacral neuritis or radiculitis) was also forwarded to the PEB for adjudication. The PEB found the back condition unfitting, and rated it 20%, with likely application of the VA Schedule for Rating Disabilities (VASRD). The nerve condition w as determined to be Cat egory II ( related to the unfitting back condition). The CI made no appeals at that time, and was medically separated.


CI’s CONTENTION: “Mental health issues, and unsatisfactory doctors at VA (Primary Care).”


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 (with related radiculopathy) is addressed below. No other conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Naval Records.


RATING COMPARISON:

Service IPEB – dated 20050621
 VA – (28 mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Failed Low Back Surgery 5237-8621 20% Degenerative Disc Disease (DDD) 5242 20% 20071130
Chronic S1 Radiculopathy Category II Left Leg Radiculopathy 8520 20% 20071130
Combined: 20%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 80117 ( most proximate to date of separation ( DOS ) )


ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that mental health issues were not included in the Disability Evaluation System (DES) process. It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the DES operates. The Board’s authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation. While other symptoms and medical conditions may have been present, compensation can only be offered for those conditions that cut short a member’s career, and then only to the degree of severity present at the time of separation. The VA, however, is empowered to compensate for all 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.

Failed Lower Back Surgery: This CI has had a long history of lower back pain, and left lower extremity pain. On 26 November 2003, he underwent L5-S1 discectomy, however, did not have positive result from that first surgery. In December 2004, a second L5-S1 discectomy was done; post-operatively, he was better. However, his symptoms recurred, and an MEB was initiated. The MEB narrative summary was dictated on 16 May 2005. On physical examination (PE), the CI was walking normally and was in no acute distress. He was able to sit in a chair and rise from a chair easily. He was able to get on the examining table with no difficulty. He was able to bend forward with a normal range-of-motion (ROM) in forward flexion and rearward extension. Straight leg raise was positive on the left at 40 degrees. Muscle strength and reflexes were normal. The CI was separated from service on 23 August 2005. Twenty-eight months later, he had a VA Compensation and Pension (C&P) exam of his back. The CI’s gait was normal, and he did not complain of any acute distress. SLR was positive on the left at 60 degrees. Muscle strength in the legs was normal. He was able to heel-toe walk without difficulty. ROM was measured and is summarized in the chart below.

Thoracolumbar ROM
(Degrees)		 VA C&P ~ 28 mos . Post-Sep
(20080103)
Flexion (90 Normal) 40
Extension (30) 15
R Lat Flexion (30) 15
L Lat Flexion (30) 15
R Rotation (30) 25
L Rotation (30) 25
Combined (240) 135
Comment Pain with motion

The Board carefully reviewed all available evidence, and noted the disparity between the ROM examinations described above. The May 2005 MEB exam was completed 3 months prior to separation, and therefore had greater probative value. At that PE, there was normal ROM in forward flexion and rearward extension. The Board determined that the lower back condition was essentially non-compensable based solely on the VASRD §4.71a general rating formula for diseases and injuries of the spine. However, IAW VASRD §4.40 (Functional loss), a part of the musculoskeletal system which becomes painful on use must be regarded as seriously disabled. After due deliberation, the Board determined that a rating of 10% was warranted, due to pain which occurs with use of the lower back. The Board tried to find a path to a rating higher than 10%, using other codes which could be applied to the back condition. The other VASRD codes that were considered did not result in a higher rating, since the record did not show evidence of a significantly disabling lumbar spine abnormality which would justify a higher rating. As noted above, chronic S-1 radiculopathy was adjudicated by the PEB as Category 2 (related to the unfitting failed low back surgery). The Board determined that the chronic S-1 radiculopathy was indeed related to the unfitting lower back condition, and did not constitute a separately unfitting condition for disability rating purposes. Therefore, it is appropriate for the chronic S-1 radiculopathy to be considered as Category II. After due deliberation, considering all of the evidence and mindful of DoDI 6040.44 (which prohibits the Board from lowering the rating assigned by the PEB), the Board found insufficient cause to recommend a change in the PEB adjudication of the lumbar back condition (failed lower back surgery syndrome, with related S-1 radiculopathy).


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 failed lower back surgery syndrome (with related S-1 radiculopathy), the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.


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 20131105, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record













                 
XXXXXXXXXXXXXX
President
Physical Disability Board of Review
invalid font number 31502


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 12 Feb 15

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s 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:
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC


                                                      XXXXXXXXXXXXXXX
                                            Assistant General Counsel
                                                      (Manpower & Reserve Affairs)
invalid font number 31502

Similar Decisions

  • AF | PDBR | CY2013 | PD-2013-02304

    Original file (PD-2013-02304.rtf) Auto-classification: Denied

    The physical therapy MEB ROM examination on 12 April 2006, is recorded in the chart. At the VA Compensation and Pension (C&P) examination performed on 7 December 2006, 2 months after separation, the CI reported continued activity limiting low back pain with radiation to the right leg without weakness. The limitation of motion documented in the MEB examinations and the VA C&P examination proximate to separation support a 20% rating under the VASRD General Rating Formula for Diseases and...

  • AF | PDBR | CY2013 | PD-2013-01973

    Original file (PD-2013-01973.rtf) Auto-classification: Denied

    After aggressive physical therapy, LIMDU statusand three spinal [steroid] injections the CI did had mild symptoms improvement but continued to experience intermittent back pain and had persisted abnormal foot sensation throughout the balance of his career.Surgical intervention was not recommended and there were no reports of incapacitation.The MEB narrative summary (NARSUM) dated 8 April 2005 (5 months prior to separation),the examiner noted tenderness and spasm of the left lower back and...

  • AF | PDBR | CY2013 | PD-2013-01404

    Original file (PD-2013-01404.rtf) Auto-classification: Denied

    A subsequent PEB reconsiderationadjudicated “lumbar degenerative disc disease with grade I spondylolisthesis”as unfitting, rated 10% with application of application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The MEB exam, 6 months prior to separation, detailed “back flexion” of 90⁰ (normal 90⁰), combined ROM of 220⁰ (normal 240⁰), normal strength of lower extremities (slight decrease in right hip flexion) and normal gait. The VA Rating Decision (VARD) dated 6 months...

  • AF | PDBR | CY2013 | PD-2013-02528

    Original file (PD-2013-02528.rtf) Auto-classification: Denied

    The back condition, characterized as “persistent L5 radiculopathy”, was the forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.The Informal PEB adjudicated “persistent L5 radiculopathy failing surgical decompression”as unfitting, rated at0%,with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).The CI made no appeals and was medically separated. BOARD FINDINGS : IAW DoDI 6040.44, provisions of DoD or Military Department regulations or...

  • AF | PDBR | CY2013 | PD-2013-02265

    Original file (PD-2013-02265.rtf) Auto-classification: Denied

    SEPARATION DATE: 20040831 Pre-Separation) ConditionCodeRatingConditionCodeRatingExam Discogenic Low Back Pain523710%Thoracolumbar Spine Strain523710%20040628L4/L5 HNPCategory 2No VA EntryOther x 0 (Not is Scope)Other x 11 Rating: 10%Combined: 30%Derived from VA Rating Decision (VARD)dated 20041013 ( most proximate to date of separation) ANALYSIS SUMMARY :IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. At the MEB...

  • AF | PDBR | CY2014 | PD 2014 00106

    Original file (PD 2014 00106.rtf) Auto-classification: Approved

    He is having radicular symptoms predominantly in the right buttock, posterior thigh, anterolateral leg and dorsal foot”.The “lower back” exam documented “flexion to approximately 60 degrees, extension to 0 degrees,” an absent ankle jerk reflex on the right, a positive right straight leg raise test (for radiating symptoms)and otherwise normal sensory and motor exams (without any mention of spasm, contour, or gait). Of note, a remote VA exam, over 5 years after separation, documented right...

  • AF | PDBR | CY2013 | PD-2013-02301

    Original file (PD-2013-02301.rtf) Auto-classification: Denied

    The VA increased their radiculopathy rating, but maintained the 40% back rating until a subsequent exam in 2012 led to a decreased spine rating of 20%. 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: XXXXXXXXXXXXXXX President Physical Disability Board of Review

  • AF | PDBR | CY2014 | PD 2014 00470

    Original file (PD 2014 00470.rtf) Auto-classification: Approved

    No other conditions were submitted by the MEB.The Informal PEB adjudicated “chronic low back pain due to back injury with findings of a disc protrusion at L5/S1” as unfitting, rated at 10%with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).The CI made no appeals and was medically separated. RATING COMPARISON : Service IPEB – Dated 20060421VA -(3 Days Pre-Separation)ConditionCodeRatingConditionCodeRatingExam Chronic LBP w/ disc protrusion at L5/S1523710%L5/S1...

  • AF | PDBR | CY2013 | PD-2013-02779

    Original file (PD-2013-02779.rtf) Auto-classification: Approved

    The Board thus determined that the VA C&P ROM was the most probative for a rating recommendation at the time of separation. I have carefully reviewed the evidence of record and the recommendation of the Board. I concur with that finding, accept their recommendation and direct that your records be corrected as set forth in the attached copy of a Memorandum for the Chief of Staff, United States Air Force.

  • 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. ...