RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01973
BRANCH OF SERVICE:  nAVY  	BOARD DATE:  20140912
SEPARATION DATE:  20050912

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO3/E-3 (SN/Seaman) medically separated for L5-S1 herniated disc, with lumbar radiculopathy unfitting.  The back condition could not be adequately rehabilitated to meet the physical requirements of his rating or satisfy physical fitness standards.  He was placed on limited duty [LIMDU] status and referred for a Medical Evaluation Board (MEB).  The “L5-S1 herniated disc, with lumbar radiculopathy” condition, characterized as “other and unspecified disc disorder of lumbar region” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “S1 herniated disc, with lumbar radiculopathy” as unfitting, rated at 20%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Due to many complications in the passed till present I feel that 20% is not justifiable due to the passed years having to take time off from work, sitting out on things I enjoy doing, and the restless nights.  Anymore sneezing the wrong way could pop my disc out of place.  This is a constant and daily issue I have dealt with. I have done P/T sessions over the years and have picked up quite a bit of exercises. I now do more P/T at home but the only time I go to a therapist is when it’s really bad and also to see if there is anything new I need to be doing.”

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 L5-S1 herniated disc, with lumbar radiculopathy condition is addressed below; 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 20050531 | VA C&P - (2 Mo. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
L5-S1 Herniated Disc, with Lumbar Radiculopathy | 5237 | 20% | Herniated Disc with Lumbar Radiculopathy | 5237 | 10% | 20050720
Other x 0 (Not in Scope) | Other x 1 (Not in Scope) | 20050720
Combined:  20% | Combined:  10%
Derived from VA Rating Decision (VARD) dated 20051020 (most proximate to date of separation)

ANALYSIS SUMMARY:  

L5-S1 Herniated Disc with Lumbar Radiculopathy Condition.  The CI first reported left-sided low back pain (LBP) with extension into his left leg after lifting and holding an aircraft rotor blade for an extended period of time.  Radiologic diagnostic tests revealed two herniated discs; a large herniation at L5-S1 and a smaller one at L4-L5 spinal level.  After aggressive physical therapy, LIMDU status and three spinal [steroid] injections the CI did had mild symptoms improvement but continued to experience intermittent back pain and had persisted abnormal foot sensation throughout the balance of his career.  Surgical intervention was not recommended and there were no reports of incapacitation.  

The MEB narrative summary (NARSUM) dated 8 April 2005 (5 months prior to separation), the examiner noted tenderness and spasm of the left lower back and slightly limited range-of-motion (ROM).  His gait was antalgic and there was decreased sensation to light touch on the side of his left foot.  Strength and motor exams were normal.  There was no comment about painful motion.

At the VA Compensation and Pension (C&P) examination dated 20 July 2005 (2 months prior to separation), the CI reported intermittent LBP that traveled into his lower left side of his buttocks and at times to the knee twice per week, for duration of “2 to 24 hours.”  Additionally, he reported having difficulty “…in climbing up and down aircrafts and lifting heavy objects.”  He denied the presence of paresthesia.  The physical exam revealed normal posture and gait.  There was no evidence of back tenderness, muscle spasms, or painful radiation.  The CI’s thoracolumbar ROM was normal with pain-limitation on repetition.  

The goniometric 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 ~ 5 Mo. Pre-Sep
(20050405)

VA C&P ~ 2 Mo. Pre-Sep
(20050720)

Flexion (90 Normal) | 80 | 90
Extension (30) | 30 | 30
R Lat Flexion (30) | 30 | 30
L Lat Flexion (30) | 30 | 30
R Rotation (30) | 30 | 30
L Rotation (30) | 30 | 30
Combined (240) | 230 | 240
Comment | antalgic gait; tenderness; spasm; | Deluca (+) pain;
§4.71a Rating | 20% | 10%

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and VA coded the unfitting back condition the same as 5237 (lumbosacral strain) and rated it at 20% and 10%, respectively.  The VA cited pain on use.  Board members first agreed that the MEB exam ROM only supported a 10% rating IAW §4.71a.  However, the presence of lumbar spasm coupled with an abnormal gait supports the higher 20% rating.  Additionally, although not present on the VA examination, Board members considered whether the finding of sensory loss along the left foot was an additional ratable radiculopathy if it were found to be separately unfitting.  The established principle for fitness determinations is that they are performance based.  The sole sensory component in this case had no functional implications and no motor weakness was found.  There is thus no evidence of a separately ratable functional impairment (with fitness implications) from a residual radiculopathy.  The Board cannot support a recommendation for an additional disability rating on this basis.  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 chronic low back pain 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.  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 spine 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 20131019, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXX
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 26 Mar 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 USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC

						  XXXXXXXXXXXXXXX
	     				  Assistant General Counsel
		  (Manpower & Reserve Affairs)