Author: JOHN J. D'ORAZIO
Last saved by: julie.raveau
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xx		BRANCH OF SERVICE:  marine corps 
CASE NUMBER:  PD1200385	SEPARATION DATE:  20040115
BOARD DATE:  20130410

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, Cpl/E-4 (0310/LAV crewman), medically separated for lumbar epidural fibrosis.  The condition began in 2001 and was not a result of injury.  Surgical intervention in 2002 did not result in improvement sufficient to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was consequently placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The lumbar epidural fibrosis, characterized as “lumbar epidural fibrosis and lumbar herniated disk”, was forwarded to the Physical Evaluation Board (PEB).  No other conditions were submitted by the MEB.  The PEB adjudicated the lumbar epidural fibrosis as unfitting, rated 20%, citing criteria of the Veterans Administration Schedule for Rating Disabilities (VASRD).  The PEB called the CI’s lumbar herniated disk a Category II condition (contributing to the unfitting condition).  The CI made no appeals, and was medically separated.

CI CONTENTION: “My situation was more severe than it could have been if I had been properly treated in a timely manner.  My condition had already been chronic upon discharge.  I also feel that a more prompt surgery would have helped the nerve damage.  After 6 months I threatened to call my Congressman, at that time I was finally allowed to see a surgeon, who exclaimed I should had been seen sooner.  Please note my condition lasted almost a full year before proper treatment.  Also, the degenerative disc disease is affecting other levels of my spine.” 

SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in Department of Defense Instruction (DoDI) 6040.44 (Enclosure 3, paragraph 5.e.2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.”  The rating for the unfitting lumbar epidural fibrosis is addressed below.  The Board considers the CI’s lumbar herniated disk as part of this disability.  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 (BCNR).

RATING COMPARISON: 

Service IPEB – Dated 20031103 | VA (1 Mo. Pre-Separation) – Effective 20040116
Condition | Code | Rating | Condition | Code | Rating | Exam
Lumbar Epidural Fibrosis | 5295 | 20% | Status Post Laminectomy, Lumbar Spine for Degenerative Disc Disease | 5243 | 40%* | 20031202
Lumbar Herniated Disk | Cat II | | | |
↓No Additional MEB/PEB Entries↓ | Radiculopathy, Left Lower Extremity | 8520 | 20% | 20031202
| Surgical Scar, Lumbar Spine | 7804 | 10% | STR & VA Tx records
| 0% X 1 / Not Service Connected x 0 |
Combined:  20% | Combined:  60%
*Initially rated at 40% based on first C&P exam; increased to 100% from 20040420 – immediately post surgery; lowered to 20% from 20040601 

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  This role and authority is granted by Congress to the Department of Veterans Affairs.  The Board’s authority as defined in DoDI 6044.40 resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  The Board acknowledges the CI’s opinion that a medical error was responsible for his disability, with the implication that the disability rating should provide for remedy. It must be noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to allegations regarding suspected improprieties or faulty medical care.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB disability ratings and fitness determinations as elaborated above.  Redress in excess of the Board’s scope of recommendations must be addressed by the BCNR and/or the United States judiciary system.

Lumbar Spine Condition.  In March 2002 the CI underwent a left L5-S1 microdiskectomy as definitive treatment for a left S1 radiculopathy and herniated nucleus pulposus (HNP).  The CI experienced a return of left leg pain during the several weeks after surgery, though it was not as severe as it was preoperatively.  A follow-up magnetic resonance imaging (MRI) study revealed postoperative changes consistent with scar at L5-S1 and disk bulging at L4-5.  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
 (In degrees)

NARSUM ~5 Mo. Pre-Sep

VA C&P ~1 Mo. Pre-Sep

Flexion (90 Normal) | “Approximately 30” | 30
Ext (0-30) | “Full” | 20
R Lat Flex (0-30) | Not measured | 30
L Lat Flex 0-30) | | 30
R Rotation (0-30) | | 30 (45)
L Rotation (0-30) | | 30 (45)
Combined (240) | Cannot be determined | 170
Comment | | +Tenderness, painful motion
§4.71a Rating | 40% | 40%

At the narrative summary (NARSUM) exam performed on 11 August 2003 (5 months prior to separation) the CI complained of low back pain (LBP) that radiated to the left lower extremity.  Physical exam showed a well-healed lumbar scar and a straight-leg raise (SLR) test indicative of nerve root impairment on the left.  Deep tendon reflexes (DTR) were normal except for an absent left ankle reflex.  Sensation was intact and muscle strength was normal.  A neurosurgical assessment on the same day reported that the left lower extremity pain was worse than the back pain.  Lower extremity muscle strength was “full” and flexion was 30 degrees.  Neurosurgery follow-up 4 months prior to separation noted a normal gait and mild left lumbar tenderness.  At the VA Compensation and Pension (C&P) exam on 2 December 2003, 6 weeks prior to separation, the CI reported significant back pain on a daily basis with radiation down the left lower extremity to the foot.  Tingling and numbness of the back and left leg also occurred.  Pain intensity was described as 9 on a 0-10 scale.  Movement aggravated the pain and he required narcotic medication daily.  He could walk for about a half hour and could drive for 1-2 hours.  He could not lift heavy items, push a lawnmower or do heavy gardening.  Bed rest within the prior year was not recommended.  Examination revealed a normal gait and posture without the use of braces or assistive devices.  A well-healed lumbar surgical scar displayed no tenderness, instability or adherence.  Muscle spasm was present bilaterally, but spinal contour was not mentioned.  Pain occurred at the limit of ROM in all planes of motion noted in the table above.  Diminished sensation was noted in the L4, L5 and S1 distributions.  The absent left ankle DTR was documented, and muscle strength was normal.  SLR testing was “positive” bilaterally.

The Board directs attention to its rating recommendation based on the above evidence.  It is noted in this case that a change to the current §4.71a criteria (General Rating Formula for Diseases and Injuries of the Spine) was effected 26 September 2003, in advance of the date of the PEB and of the CI’s date of separation.  Although the PEB applied the older VASRD spine criteria, IAW DoDI 6040.44 the Board must apply the latter criteria to its recommendation.  The VA based a 40% rating on limitation of flexion under the 5243 code (intervertebral disc syndrome).  Board members agreed that the examinations just described all justify a 40% rating based on flexion limited to 30 degrees.  Unfavorable ankylosis was not present; therefore a rating higher than 40% was not supported.  The Board determined there were no “incapacitating episodes” that supported a compensable rating under the alternative formula for rating intervertebral disc syndrome.  Board members concluded the lumbar herniated disk was properly adjudicated by the PEB as a Category 2 related condition, but considered if additional disability was justified for a history of left lower extremity peripheral nerve impairment.  The VA assigned a 20% rating for left lower extremity radiculopathy, citing “incomplete paralysis which is moderate” as the rationale.  The presence of functional impairment with a direct impact on fitness is the crucial factor in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI experienced radiating pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no motor impairment present on any exam that could be linked to functional deficit or limitation of specific physical requirements.  The Board therefore concludes that additional disability rating for radiculopathy was not justified on this basis.  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 lumbar epidural fibrosis condition, coded 5243.

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 epidural fibrosis condition, the Board unanimously recommends a disability rating of 40%, coded 5243, IAW VASRD §4.71a.  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
Lumbar Epidural Fibrosis | 5243 | 40%
COMBINED | 40%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120416, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans Affairs Treatment Record.

	xx
	Director of Operations
	Physical Disability Board of Review

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 28 May 13 ICO  
          (c) PDBR ltr dtd 22 May 13 ICO  
          (d) PDBR ltr dtd 22 May 13 ICO  
          (e) PDBR ltr dtd 17 May 13 ICO  
          (f)  PDBR ltr dtd 10 May 13 ICO  
          (g) PDBR ltr dtd 17 May 13 ICO  
                                        
1.  Pursuant to reference (a), I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (g).
	
2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a.  former USN:  Disability separation with a final disability rating of 20% (increased from 10%) effective 1 March 2003.

     b.  former USN:  Disability separation with a final disability rating of 20%  (increased from 10%) effective 15 September 2002.

     c.  former USMC:  Disability retirement with a final disability rating of 40% (increased from 20%) and placement on the Permanent Disability Retired List effective 14 January 2004. 

     d.  former USN:  Disability retirement with a final disability rating of 30% (increased from 20%) and placement on the Permanent Disability Retired List effective 15 November 2002.

     e.  former USMC: Disability retirement with a final disability rating of 30% (increased from 20%) and placement on the Permanent Disability Retired List effective 31 August 2005.  

     f.  former USMC:  Disability separation with a final disability rating of 20% (increased from 10%) effective 15 November 2001.  

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)

PD1200385