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

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxx	CASE:  PD1201790
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20130611
SEPARATION DATE:  20020131

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPL/E-4 (1171/Hygiene Equipment Operator) medically separated for back and radiculitis conditions.  The CI injured his back in 1995 and reinjured it in July 2000 after a motor vehicle accident (MVA).  After non-operative treatment, his back could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was placed on light duty and referred for a Medical Evaluation Board (MEB).  The mechanical low back pain (LBP), left lumbar radiculitis and L4-L5 herniated nucleus pulposus (HNP) 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 and left lumbar radiculitis as unfitting, rated 10% and 10% respectively with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The L4-L5 HNP was adjudicated to be Category II, a condition that contributes to the unfitting conditions.  The CI made no appeals, and was medically separated.

CI CONTENTION:  The CI writes: “My condition has worsened since separation.  Left leg feels numb continuously.  I feel pinching in my lower back on the left side, numbness in my left leg all the way to my toes.  Pain all day.  Hard to sleep.  Every morning I am slow to get out of bed because of the pinching in my back.  MRI was taken by VA Facility, Sepulveda Care in California shows bulging disk.”

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 ratings for the unfitting mechanical LBP and left lumbar radiculitis (including the Category II L4-L5 HNP) conditions are 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.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate 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.

RATING COMPARISON:

Service IPEB – Dated 20011130 | VA* - (1.5 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Mechanical LBP | 5299-5295 | 10% | Lumbar Spine Strain with HNP at L4-5 and L5-S1 | 5293 | 20%** | 20011212
L4-L5 HNP | Category II | | | |
Left Lumbar Radiculitis | 8599-8520 | 10% | No VA Entry | 20011212
No Additional MEB/PEB Entries | Other x 6 | 20011212
Combined:  20% | Combined:  20%
* Derived from VA Rating Decision (VARD) dated 20020402 (most proximate to date of separation)
** Initially rated 0% for lumbosacral strain based on C&P 19990628 over 3 years prior to DOS

ANALYSIS SUMMARY:

Chronic Low Back Pain Condition.  The CI initially suffered back pain in approximately 1998 after lifting a piece of heavy equipment during his first period of enlistment.  He separated from the US Marine Corps in 1999; his back pain was exacerbated in July 2000 after a MVA (there was no record of the accident or pre-enlistment medical history in the file) and the CI re-enlisted into the Service again in December 2000.  After an injury playing basketball in May 2001, his back pain increased.  Despite numerous periods of light duty, anti-inflammatory medications and physical therapy, the CI’s condition did not improve.  He was treated non-operatively as a neurosurgical consult determined his was not a surgical candidate.  The CI’s commander wrote a non-medical assessment that contained the following statements: 

[The CI] suffers from back pain.  I do believe it is debilitating.  His record over the past six months supports this.  His present medical condition prohibits him from doing his primary job as an 1171.  This MOS requires strenuous activity and heavy lifting.  In order to be proficient in this MOS, [the CI] needs to be in good physical health.  His back injury prevents him from performing his duties.

The narrative summary (NARSUM) prepared 4 months prior to separation noted that it was after the MVA that he began having radiating pain and numbness down his left leg.  Neurosurgical evaluation resulted in the diagnosis of mechanical LBP and left lumbar radiculitis.  Physical examination revealed normal gait.  Lumbar range-of-motion (ROM) was 70 degrees of flexion (0 to 90 normal), 10 of extension (0 to 30 normal) and 200 of combined ROM (240 normal) with pain in all ROM, but greatest in extension.  He had normal lateral ROM.  Positive muscle spasms were noted periodically in the left lumbar paraspinal area from the L2 to S1.  Radiographic studies showed evidence of degenerative disc disease L4-L5, prominent disk osteophyte (bone spur) at L3/L4 resulting in severe canal stenosis, central disk protrusion at L4-L5 resulting in marked canal stenosis and left lateral disk protrusion resulting in obliteration of the lateral recess on the left and mild to moderate canal narrowing and neural foraminal narrowing on the left.  The diagnosis was mechanical LBP, left lumbar radiculitis and L4-L5 HNP.

At the VA Compensation and Pension (C&P) exam performed a month prior to separation, the CI reported that he had pain, weakness, fatigue, lack of endurance and stiffness in his lower back.  The pain was aggravated by walking, driving and bending and was relieved by rest.  He stated that his back became stiff and painful after 30 minutes of standing and he was able to walk for longer than 30 minutes, if he did not go quickly or carry any heavy objects.  He was not able to perform his daily functions when the backache flares, as he has to slow down his activities considerably.  He was not currently taking any non-steroidal anti-inflammatory drugs.  Physical exam revealed normal posture and gait, albeit slow.  Lumbar spine ROM was limited in extension to 20 degrees with pain at the end of ROM.  The flexion was full, but pain was experienced at 45 of flexion.  Right and left lateral flexion and rotation were normal, but there was pain at the end of the ROM.  The diagnosis was lumbar spine strain with HNP at L4-5 and L5-S1 with narrowing of the spinal cord at the L3-4 level (seen on previous MRI) and degenerative disc space disease L4-5 and bilateral facet arthropathy L5-S1 (on current X-ray), with residuals.

Left Lumbar Radiculitis Condition.  The NARSUM also noted that the CI developed new symptoms of radicular pain (numbness and tingling) in his left leg after a MVA accident in July 2000.  These symptoms were in addition to his LBP.  After an injury playing basketball in May 2001, his back pain and radicular symptoms worsened throughout 2001.  The numbness was made worse by physical activity, running in particular.  There were no bowel or bladder complaints.  Physical exam revealed that his lower extremity strength, deep tendon reflexes and sensation were normal.  He demonstrated a positive straight leg raise on the left.  The C&P exam also documented normal strength, reflexes and sensation of both lower extremities and a positive straight leg raise on the left.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the CI’s condition by applying two analogous VASRD codes.  The first was 5299-5295, lumbosacral strain, and rated it 10% for characteristic pain on motion; while the second was 8599-8520, incomplete paralysis of the sciatic nerve and rated it 10% for “mild,” resulting in a combined 20% disability rating.  They also adjudicated the L4-5 HNP as Category II.  This dual rating scheme was based on an unfitting determination for the back pain and the left radiculitis.  The VA applied VASRD code 5293, intervertebral disc syndrome, and rated it 20% citing “recurring attacks of moderate intervertebral disc syndrome.”  This coding scheme incorporates the LBP and the radiculitis, as both are intrinsic components of the intervertebral disc syndrome.  The CI’s LBP was appropriately rated by the PEB.  While the CI did have periodic muscle spasms on the left, the NARSUM did not document a loss of lateral spine motion as required for the next higher 20% rating.  Additionally, under the current general rating formula for diseases and injuries of the spine, which uses ROM measurements for rating, the CI’s back pain would also be rated at 10% based on the ROM measurements documented in the NARSUM.  Under current spine rating criteria, the pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  Additionally, Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  Since no evidence of functional impairment exists in this case, the Board would not have supported a recommendation for additional rating based on peripheral nerve impairment (as opposed to the PEB’s adjudication).  An alternative coding and rating scheme would be to utilize VASRD code 5293 as applied by the VA.  That appropriately resulted in a 20% rating based on the CI’s symptoms and is the best clinical fit in this case.  The Board’s recommendation would be to apply VASRD code 5293 and rate it 20% and that recommendation would not confer any benefit to the CI.  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 mechanical LBP and the left lumbar radiculitis conditions.

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 condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the left lumbar radiculitis condition and IAW VASRD §4.124a, 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, as follows:

UNFITTING CONDITION | VASRD CODE | RATING
Mechanical Low Back Pain | 5299-5295 | 10%
Left Lumbar Radiculitis | 8599-8520 | 10%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121001, 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)

PD1201790