Search Decisions

Decision Text

AF | PDBR | CY2013 | PD-2013-02304
Original file (PD-2013-02304.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX     CASE: PD-2013-02304
BRANCH OF SERVICE: NAVY  BOARD DATE: 20140813
SEPARATION DATE: 20061006


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SN/E-3 (SN/Seamen) medically separated for a low back condition. The condition could not be adequately rehabilitated to meet the physical requirements of her or satisfy physical fitness standards. She was placed on limited duty and referred for a Medical Evaluation Board (MEB). The low back condition, characterized as “degeneration of lumbar or lumbosacral intervertebral disc” and “lumbago,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The Informal PEB adjudicated “lumbar degenerative disk disease (DDD)” as unfitting, rated 20% with “lumbago” as a Category 2 condition that is related and contributing to the unfitting condition. The CI made no appeals and was medically separated.


CI CONTENTION: “At the time I was discharged, my diagnoses of Degenerative Joint Disease (which was diagnosed while active duty) was not considered. In addition, I had another back surgery 4 months after I got out of the military due to the Degenerative Joint Disease. The only back surgery considered at the time I received my rating was the Artificial Disk replacement surgery I had on 09/12/2005. I also have pain that radiates down my right leg as a result of the pain in my back which has now caused permanent nerve damage. I'm currently seen at the Miami VA Pain Clinic once a month and have had every form of treatment (i.e. physical therapy, acupuncture, chiropractic, shock therapy, steroid injections, medial facet blocks etc.) but none have worked thus far. I was 23 years old when I was diagnosed with Degenerative Disk Disease and 24 when I was diagnosed with Degenerative Joint Disease. I had my 1st back surgery at the age of23 while still serving in the Navy and after I was medically discharged, I still received treatment at a Naval medical Facility which performed my 2nd back surgery 4 months after I got out at age 25. I'm now 31 years old but I feel as though I'm 81. The pain in my back is so severe that I had to sign custody of my children over to my ex-husband because I can no longer physically take care of them. The VA recently increased my service connected percentage to 50% due to an increase in severity. I feel as though given the nature and severity of my disability at the time I was discharged, I should have been awarded a percentage higher than 20% and had I known then what I know now, I would have fought for a higher percentage.


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 DDD 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 IPEB – Dated 20060501
 VA - (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Lumbar Degenerative Disk Disease 5237 20% Status Post Lumbar Disc Replacement with Scar 5237 20%* 20061207
Lumbago Category II
Other x 0 (Not in Scope)
 Other x 5 (Not in Scope) 20061207
Combined: 20%
 Combined: 20%*
Derived from VA Rating Decision (VA RD ) dated 200 80213 ( most proximate to date of separation [ DOS ] ).
*Rating temporarily increased to 100% convalescent rating from 20070221 to 20070331 after surgery


ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB. However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to the VA Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.

Lumbar Degenerative Disc Disease Condition. The range-of-motion (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)		 MEB ~6 Mo. Pre-Sep
(20060321)
 PT ~6 Mo. Pre-Sep
(20060412)
 VA C&P ~2 Mo. Post-Sep
(20061207)
Flexion (90 Normal) 45 50 45
Extension (30) 15 10 20
R Lat Flexion (30) 30 ( 50 ) 25 20
L Lat Flexion (30) 30 ( 50 ) 30 20
R Rotation (30) -- 30 (40) 20
L Rotation (30) -- 30 (35) 20
Combined (240) -- 175 145
Comment End range discomfort
Generalized leg weakness
--		 Values indicated onset of pain
No change after repetition
No spasm
 Gait and contour normal
§4.71a Rating 20 % 20% 20 %

The CI developed low back pain associated moderate to severe DDD at the lower lumbar spine associated with disc herniation. Her pain did not improve with non-surgical treatments including injections and intradiscal electrothermal therapy. The CI underwent back surgery on 12 September 2005 replacement of the diseased disc with an artificial disc. The procedure did not result in improvement such that she was able to return to full duty. The MEB narrative summary on 24 February 2006, noted the CI continued to experience pain and muscle spasms. She was able to walk a mile. On examination there were no motor or sensory deficits. The MEB examination (DD Form 2808) on 21 March 2006, recorded discomfort at end ROM with ROMs recorded in the chart. There was generalized lower extremity weakness. 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 examiner indicated the condition did not cause incapacitation. On examination, posture, gait and spinal contour were normal. There was tenderness without muscle spasm. Thoracolumbar ROM is recorded in the chart and the values reported indicated the point of pain onset. The examiner stated “There was no worsening with repetition not additionally limited by fatigue, weakness, lack of endurance, incoordination.” Straight leg raising was negative for radicular signs and the lower extremity neurologic examination demonstrated normal strength, sensation and reflexes. The examiner stated there were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. Radiographic images of the lumbar spine performed on 7 December 2006, showed the replaced disc with normal alignment and were otherwise unremarkable.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the lumbar DDD (with lumbago) 20% coded 5237 (lumbosacral strain). The PEB listed lumbago (back pain) as a Category 2 condition, a diagnosis related to the primary unfitting diagnosis and not separately ratable (in accordance with VASRD §4.14, avoidance of pyramiding). The VA rated the back condition (status post lumbar disc replacement) 20% coded 5237, citing limitation of motion. The rating decision also granted a convalescent rating of 100% following a second back surgery performed on 21 February 2007, approximately 5 months after separation. Following convalescence, the 20% rating was resumed. 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 Injuries of the spine. There were no incapacitating episodes requiring bed rest prescribed by a physician that supported a higher rating under the alternate rating formula for intervertebral disc syndrome. There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lumbar DDD with lumbago 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. In the matter of the lumbar degenerative disc disease with lumbago condition and IAW VASRD §4.71a, 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 re-characterization 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

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)

Similar Decisions

  • AF | PDBR | CY2014 | PD 2014 00130

    Original file (PD 2014 00130.rtf) Auto-classification: Denied

    The Board agreed that the evidence in the record at both the MEB and C&P examinations supported the 10% rating IAW VASRD §4.59 (painful motion) for painful limited arm motion that did not meet the threshold compensable rating of 20% for “limited motion at shoulder level.” Board practice when rating ascode 5201 has considered 90 degrees of abduction or flexion “shoulder level.” There was no evidence in record of any other ratable impairment of the shoulder or incapacitating episodesallow for...

  • 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 | PD2012-00226

    Original file (PD2012-00226.docx) Auto-classification: Denied

    The Physical Evaluation Board (PEB) adjudicated the lumbar fusion L2-L3 condition as unfitting, rated 20%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). Lumbar Fusion L2-L3 Condition . 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 that the following individuals’ records not be corrected to reflect a change in...

  • 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-2014-00893

    Original file (PD-2014-00893.rtf) Auto-classification: Denied

    The “lumbago” condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.No other conditionsweresubmitted by the MEB.The Informal PEB adjudicated “degenerative disc syndrome”as unfitting, rated 10%,citing 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...

  • AF | PDBR | CY2013 | PD-2013-02531

    Original file (PD-2013-02531.rtf) Auto-classification: Denied

    Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation. Pre-SepFlexion (90 Normal)“ROM by visual methods are “Normal”90Combined (240)240CommentFull and pain free ROM§4.71a Rating0%0%The Board directs attention to its rating recommendationbased on the above evidence.The PEB and VA, citing incapacitation of 2 to 4 weeks, both rated the back condition at 20% using the codes 5241(spinal fusion)...

  • AF | PDBR | CY2014 | PD-2014-01345

    Original file (PD-2014-01345.rtf) Auto-classification: Denied

    SEPARATION DATE: 20080516 The PEB and VA both rated the back condition at 10% for painful motion using code 5242 (arthritis spine), IAW VASRD §4.71a. RECOMMENDATION : The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

  • AF | PDBR | CY2012 | PD2012 01933

    Original file (PD2012 01933.rtf) Auto-classification: Denied

    No other conditions were submitted by the MEB.The PEB adjudicated lumbar degenerative disc disease (DDD) as unfitting and rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The Board must recommend a disability rating in accordance with VA rating guidelines in effect on the date of the CI’s separation and the Board did so. BOARD FINDINGS : IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB...

  • AF | PDBR | CY2011 | PD2011-00007

    Original file (PD2011-00007.doc) Auto-classification: Denied

    The Board evaluates Department of Veterans’ Affairs (VA) evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. The exams were the MEB exam, the physical therapy (PT) range of motion evaluation and the VA compensation and pension (C&P) exam. All three exams documented painful motion, with both the physical therapy and the C&P exam...

  • AF | PDBR | CY2012 | PD2012 01457

    Original file (PD2012 01457.rtf) Auto-classification: Denied

    The CI requested a reconsideration of the IPEB findings after which the IPEB found the CI unfit for his low back condition, rated 10%. Subsequent multiple VA physical therapy records ranging to the end of 2002,within the 12-month window specified in DoDI 6040.44 regarding VA evaluations for Board consideration, did not demonstrate any deterioration in the CI’s condition, although the Board noted that the CI continued to have ongoing low back pain that was being treated with non-steroidal...