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

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xx	 CASE:  PD1201010	
BRANCH OF SERVICE:  MARINE CORPS 	 BOARD DATE:  20130612
SEPARATION DATE:  20030115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Sgt/E-5 (6672, Aviation Supply) medically separated for mechanical low back pain (LBP) with left L5 radiculopathy Status Post (S/P) laminectomy and degenerative disk disease (DDD), both related to the mechanical LBP.  The CI developed back pain and bilateral radicular pain in 1997; she underwent surgery in February 2001 with improvement of the radicular pain and persistence of back pain.  She developed headaches in late 2001.  The back condition and headaches could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was placed on limited duty [LIMDU] for her back and referred for a Medical Evaluation Board (MEB).  The low back condition, characterized as “left L5 radiculopathy S/P laminectomy” and “migraine headaches,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The PEB adjudicated “mechanical LBP” as unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition, migraine headaches, was determined to be a category III condition, (conditions that are not separately unfitting and do not contribute to the unfitting condition).  The CI made no appeals, and was medically separated with a 20% disability rating.

CI CONTENTION:  “Veteran’s radiculopathy was never rated and this condition is extremely debilitating.  A fusion procedure was performed on Veteran but the surgery was unsuccessful.  MRI conducted at the time showed bulging disc and calcification.  EMG was attempted but failed due to pain.  Veteran had several incapacitating episodes during this period.  One week hospitalization and 8 weeks bed rest.  Several more days of bed rest and light duty.”  The CI also attached a two page statement to her application which was reviewed by the Board and considered in its recommendations.

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 which considered radiculopathy is addressed below.  Migraine headaches which were determined to be not unfitting by the PEB, is likewise addressed below.  The left knee, IBS/IBC/colitis, severe diarrhea or alternating diarrhea and constipation, depression and sinusitis conditions specified in the application were not identified by the MEB or adjudicated by the PEB, and thus are not within the DoDI 6040.44 defined purview of the Board.  Those, and any other conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Naval Records (BCNR). 

RATING COMPARISON:  
   
Service IPEB – Dated 20020826 | VA - (2 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Mechanical Low Back Pain; Left L5 Radiculopathy S/P Laminectomy; DDD L Spine | 5295 | 20% | HNP, s/p Lumbar Laminectomy and discectomy at L4-L5 and L5-S1 with residuals | 5299-5295 | 20%* | 20021107
Migraine Headaches | CAT III | Migraine Headaches | 8100 | 10% | 20021107
Overweight | CAT IV | No VA Entry
No Additional MEB/PEB Entries | Other x 7 | 20021107
Combined:  20% | Combined:  40%
Derived from VA Rating Decision (VARD) dated 20030402 [most proximate to date of separation (DOS)].   
*Increased to 40% effective 23 September 2004 and reduced to 20% 1 January 2012

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.   The Board also acknowledges the CI’s contention for rating of her migraine headache condition which was determined to be not unfitting by the PEB.  Disability compensation may only be offered for those conditions that cut short the member’s service career.  Should the Board judge that this contested condition was most likely incompatible with military service, a disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.  The Board finally acknowledges the CI’s assertions that her disability disposition was incomplete and unfair.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCNR and/or the United States judiciary system.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

Low Back Condition.  It is noted in this case that the PEB's adjudication was IAW VASRD §4.71a criteria in effect at the time of those proceedings; but, a change to the interim §4.71a criteria (General Rating Formula for Diseases and Injuries of the Spine) was effective 23 September 2002, in advance of the date of separation.  The Board, IAW DoDI 6040.44, must apply the latter criteria to its recommendation.  

The CI experienced the onset of back pain and bilateral lower extremity pain, left greater than right, in 1997.  This was followed by intermittent flare-ups over the next 4 years which were progressively more severe.  A magnetic resonance imaging (December 2000) was consistent with DDD at L4-5; there was a posterior left lateral protrusion of the L5-S1 disc, causing mild distortion of the left L5-S1 nerve rootlet; minimal posterior bulging was noted at L4-5.  A nerve conduction and electromyography study (January 2001) found a probable L5-S1 radiculopathy affecting the left lower extremity.  Pre-operative computerized tomography showed mild posterior bulging of the L4-5 disc and hypertrophic change centrally at L5-S1; and calcification within the spinal at L5-S1 just to the left of midline.  In February 2001, the CI underwent an uncomplicated posterior lateral arthrodesis from L4 to the sacrum, and bilateral laminectomy at L4 and L5.  The operative report noted lateral recess stenosis most marked at the L5-S1 level; there were no post-operative neurologic deficits.  The post-operative course was uncomplicated.  Early post-operative physical therapy (PT) interventions instructed the CI in ambulation.  The hospital discharge summary stated that she was ambulating independently, and she was given directions regarding activity and use of a brace.  She was instructed to return to driving 5 weeks post-operatively.  By September 2001 (7 months post-operatively) the CI reported occasional aches in the lower back and discomfort into the hips mostly on the left side.  She denied persistent or recurrent pain in the lower extremities.  On exam, the surgeon reported a well-healed incision.  Flexion and extension were slightly restricted.  Straight leg raise (SLR) testing was unrestricted, and there was no focal weakness, atrophy, or objective motor or sensory deficits.  Reflexes were symmetrical at the knees and ankles.  At the Narrative Summary (NARSUM) exam in April 2002 (9 months before separation) the CI reported that after surgery her back pain persisted and the leg pain improved.  The physical exam found give away strength in the left leg and 4/5 (mildly decreased) strength in left ankle dorsiflexion, otherwise the lower extremity muscle tone and strength were normal.  Pinprick sensation was mildly decreased in the L5 distribution; otherwise the sensory exam was intact.  Gait and coordination were normal; there was no evidence of left foot drop.  Reflexes were 2/4 (normal) and symmetric.  The examiner reported a normal lumbar spine exam.  At the VA Compensation and Pension (C&P) exam in November 2002 (2 months before separation) the CI reported that she was “still in constant pain” and continued to experience pain radiating to the hips, knees and feet.  She denied loss of bladder or bowel control.  She reported difficulty walking since the surgery; and that running, extended sitting or standing, and any physical activity worsened her pain.  The examiner noted that the CI was able to drive a car, climb stairs, and carry trash cans, but she could not lift heavy bags.  She took longer to perform activities due to other joint pain.  The physical exam noted straightening of lumbar lordosis, paraspinal spasm at L3-4, L4-5, and L5-S1, but no tenderness or weakness.  Straight leg raise was negative to 50 degrees in supine and sitting positions.  Lasegue’s sign for lumbosacral nerve root irritation was also negative.  Active range-of-motion (ROM) (in degrees) of the back: flexion 60 (normal to 90 by current standards), extension 20 (normal 30), bilateral flexion and bilateral rotation normal (30).  Painful motion was noted in all directions, but motion was not limited by fatigue, weakness, lack of endurance, or incoordination.  Lower extremity strength, sensation and reflexes were normal; there was no muscle atrophy.  Gait was normal.  X-rays of the lumbar spine showed mild dextrorotatory scoliosis of the lower lumbar spine and narrowing of the L5-S1 disc space.  The examiner noted no objective evidence of radiculopathy; and recommended the CI avoid frequent bending, stooping, and crouching.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA assigned 20% ratings (“with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position”) under code 5295 (lumbosacral strain).  Board members agreed that this rating could be conceded based on paraspinal spasm, loss of lumbar lordosis and pain-limited flexion documented in the C&P exam.  Evidence of “listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion” was lacking to justify a 40% rating.  In deliberating other coding pathways to a higher rating, it was noted that there was no evidence of ankylosis or “severe” limitation of motion to warrant a 40% rating under the 5289 code (spine, ankylosis of, lumbar) or 5292 code (spine, limitation of motion of, lumbar).  The Board also considered the 5293 rating criteria (intervertebral disc syndrome) in effect at the time of separation.  Under this code, a rating can be assigned based on total duration of incapacitating episodes over the past 12 months, where an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Although the CI was placed on convalescent leave after surgery, she was given activity modification instructions (typical for this operation) that did not meet the “incapacitating episodes” stipulation of the 5293 code.  There was no evidence in the record of incapacitating episodes that would justify a minimal rating under the 5293 code.  The Board finally deliberated if additional disability was justified for the history of lower extremity radiculopathy.  The CI complained of lower extremity radiating pain at the C&P exam.  Although the NARSUM examiner recorded mild left ankle weakness and diminished sensation in an L5 distribution, the neurologic exam by the C&P examiner was normal.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  The Board concluded therefore that this condition could not be recommended for additional disability 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 LBP condition.  

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that migraine headaches were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (Reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The service treatment record indicated that the CI had an onset of daily headaches around November 2001 that improved with treatment of sinusitis.  In the NARSUM the CI reported 1-2 headaches per week, lasting up to 1-2 days, and rated 8-10 out of 10 (on a 1-10 scale); associated with nausea, vomiting and photophobia.  The headaches were partially alleviated with over-the-counter pain medication; she declined a trial of prophylactic medication.  There were no clinical entries regarding headaches between the time of the NARSUM (April 2002) and the date of separation (January 2003).  The migraine headaches were not profiled or implicated in the non-medical assessment.  The condition was reviewed and considered by the Board.  There was no performance based evidence from the record that it significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the migraine headaches condition and so no additional disability rating is recommended.

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 mechanical LBP, left L5 radiculopathy S/P laminectomy, DDD lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended migraine headaches condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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, as follows:  

UNFITTING CONDITION | VASRD CODE | RATING
Mechanical Low Back Pain, Left L5 Radiculopathy Status Post Laminectomy, Degenerative Disc Disease Lumbar Spine | 5295 | 20%
RATING | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120620, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
	           xxx
	           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 19 Aug 13

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandum, 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:

- former USMC    
- former USN
- former USMC
- former USN 
- former USMC
- former USN 
- former USN
- former USMC
- former USN

						xx
	     					  Assistant General Counsel
						     (Manpower & Reserve Affairs)

PD1201010