DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No: 7719-00
27 February 2001
From: Chairman, Board for Correction of Naval Records
To:
Secretary of the Navy
Subj
:
Ref:
Encl:
FORMER
REVIEW OF NAVAL RECORD
(a) 10 U.S.C. 1552
(1) DD Form 149
(2) Subject’s naval record
1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner,
filed enclosure (1) with this Board requesting, in effect, that his record be corrected to show
that he was retired by reason of physical disability, vice discharged with entitlement to
disability severance pay.
Board, consisting of Messrs. ensley, Mazza and Silberman reviewed Petitioner’s
2. The
allegations of error and injustice on 19 January 2001 and, pursuant to its regulations,
determined that the corrective action indicated below should be taken on the available
evidence of record. Documentary material considered by the Board consisted of the
enclosures, naval records, and applicable statutes, regulations and policies.
3. The Board, having reviewed all the facts of record pertaining to Petitioner’s
of error and injustice finds as follows:
allegations
a. Before applying to this Board, Petitioner exhausted all administrative remedles
available under existing law and regulations within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.
c. Petitioner enlisted in the Navy on 22 March 1993. He was evaluated by a medical
L4-
board on 30 May 1997, and given diagnoses of herniated nucleus pulposus,
L5, left, status post microdiscectomy; recurrent
left; chronic myofascial syndrome of the lumbosacral spine, and low back pain secondary to
the previous diagnoses. The medical board noted that he was significantly limited in his
ability to perform prolonged standing, squatting, bending, stooping, kneeling and climbing
type activities, as well as being exposed to extreme ranges of temperature. His clinical
examination was consistent with low back pain and intermittent radiculopathy, consistent with
L3-L4 and
L3-LA,
LA-L5 nerve root irritation on the
scarring following surgical extirpation. The potential for continued active service was felt to
be nil. On 30 July 1997, the Physical Evaluation Board made preliminary findings that he
was unfit for duty because of low back pain secondary to the remaining medical board
diagnoses, rated at 10% under VA code 5295, as lumbosacral strain. He accepted those
findings on 20 August 1997, and was discharged with entitlement to disability severance pay
on 7 October 1997. On 20 January 1998, based on a review of service medical records, the
Department of Veterans Affairs (VA) awarded him a 60% rating for herniated nucleus
pulposus,
IA-I-5 left, status post microdiscectomy, with recurrent nerve root
irritation and chronic myofascial syndrome of the lumbosacral spine. He was examined at a
VA facility on 16 June 1998, and found to be unable to sit for more than 20 to 30 minutes,
or stand for more than 10 or 15 minutes. He was unable to lift more than 10
to-l5 pounds.
Percussion over the lumbar spine was quite painful, and he had forward and backward
flexion of only 5 degrees. Lateral
flexion was 10 Degrees bilaterally, and rotation was 25
degrees to the right, and 30 degrees to the left. On 8 September 1998, the VA determined
that he was unemployable as of 20 February 1998. That determination was based on the
results of the 16 June 1998 examination.
L3-L4 and
CONCLUSION:
Upon review and consideration of all the evidence of record, the Board finds the existence of
an injustice warranting the following corrective action. In this regard, it concludes that
Petitioner’s back condition was productive of substantially more disability than indicated by
the 10% rating assigned by the PEB, although less so than indicated by the 60% rating
assigned by the VA.
was retired by reason of physical disability with a 40% rating, vice discharged with
entitlement to disability severance pay.
It concludes that it would be in the interest of justice to show that he
RECOMMENDATION:
a. That Petitioner ’s naval record be corrected to show that on 8 March 1998, he was
permanently retired by reason of physical disability, pursuant to 10 U.S. Code 1201, with a
40% rating under VA code 5299-5293, for status/post microdiscectomy
IA-L5, with
recurrent nerve root irritation on the left, and chronic low back pain.
L3-LA,
b. That a copy of this Report of Proceedings be filed in Petitioner ’s naval record.
4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval
Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that a quorum was
present at the Board ’s review and deliberations, and that the foregoing is a true and complete
record of the Board ’s proceedings in the above entitled matter.
ROBERT D. ZSALMAN
Recorder
5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures
of the Board for correction of Naval Records (32 Code of Federal Regulations, Section
723.6(e)) and having assured compliance with its provisions, it is hereby announced that the
foregoing corrective action, taken under the authority of reference (a), has been approved by
the Board on behalf of the Secretary of the Navy.
AF | PDBR | CY2009 | PD2009-00218
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ThePEB adjudicated “chronic pain, low back and left leg due to L4-5 herniated nucleus pulposus”as unfitting, rated 10%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy, noting that this decision was based on all three MEB conditions . The Board directs attention to its rating recommendation based on the above evidence.Both the PEB and the VA rated the condition using the 5293 code (intervertebral disc syndrome). Physical Disability Board of Review
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The CI was then medically separated with a 20% disability rating. The VA stated “in your case, review of the evidence we now have shows the severity of your low back condition and related mental disorder were of such a degree that rendered you totally disabled and would have prevented enlistment to military service at the time you re-entered active duty service.” The VA also stated, “it is under omission of the facts concerning your prior treatrnent, your in-service examiners evaluated your...
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The Court found that the ABCMR never considered the applicant’s objections to the Army’s use of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code “5293 (intervertebral disc syndrome) even though the VA used VASRD 5295 (lumbosacral strain).” (The Court reversed the codes – the Army used VASRD 5295 and the DVA used VASRD 5293.) On 26 August 1999, an informal PEB found the applicant to be unfit, under VASRD codes 5299 and 5295, due to a diagnosis of chronic low...
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The PEB adjudicated the chronic low back pain condition as unfitting, rated 20% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). A neurosurgical evaluation performed on 24 October 2001 reported that the CI complained of pain with slight bending, but that he could “walk without problems.” Examination revealed minimal paraspinal muscle spasms and minimal left sacroiliac joint tenderness. Service Treatment Record Exhibit C. Department of Veterans’ Affairs...
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CI CONTENTION : The CI states: ‘VA rated disability at 40% Service connection on May 28, 1997 and considered me unemployable on 4-22-04 for the back condition military discharged me with at 10%. Follow-up for back pain. The frequency and severity of the CI’s back pain and radicular pain increased significantly during his time on TDRL and this was consistent with the increasing severity of degenerative disc disease and herniated discs with impingement on the right S1 nerve root documented...
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The back condition, characterized as lumbar spine, degenerative disc disease was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.The MEB also identified and forwarded four other conditions, see rating chart below, that do not fall below retention standards for PEB adjudication.The PEB adjudicated chronic radiating low back pain (LBP) as unfitting, rated 10% with likely application of US Army Physical Disability Agency (USAPDA) pain policy and the Veterans Affairs Schedule for...