RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-00814
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20141112
Separation Date:  20090730

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (0331/Infantryman Machine Gunner) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty LIMDU status and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “displacement of lumbar intervertebral disc without myelopathy” and “postsurgical arthrodesis status”, was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded one other condition (essential hypertension) to the PEB.  The Informal PEB (IPEB) adjudicated “anterior lumbar fusion” as unfitting, rated at 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The IPEB identified and adjudicated both L5-S1 herniated disk and microdiskectomy as Category II conditions and the conduct disorder, adolescent onset type, as a Category III condition.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes: “Chronic back pain, in.”

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 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 anterior lumbar fusion, L5-S1 herniated disk and microdiskectomy conditions are addressed below.  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 Military 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.  

RATING COMPARISON:

Service IPEB – Dated 20090501 | VA - (6 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Anterior Lumbar Fusion | 5241 | 20% | Low Back Strain with Sciatica | 5243-5237 | 20% | 20100128
| | | Left Leg Numbness Associated with Low Back Strain with Sciatica | 8520 | 10% | 20100128
L5-S1 Herniated Disk | Category II | See Above | | | 20100128
Microdiskectomy | Category II | See Above | | | 20100128
Other x 1 (Not in Scope) | Other x 5 | 20100111
Combined:  20% | Combined:  70%
Derived from VA Rating Decision (VARD) dated 20100420 (most proximate to date of separation)

ANALYSIS SUMMARY:  The PEB adjudicated L5-S1 herniated disk and microdiskectomy conditions as Category II conditions.  These conditions will be discussed under the anterior lumbar fusion condition.

Anterior Lumbar Fusion Condition.  The CI developed low back pain (LBP) after a motor vehicle accident (MVA) in June 2005 and was initially placed on a 6 months LIMDU for herniated nucleus pulposus (HNP) L5-S1.  The CI’s primary care provider’s prognosis was “slow progression of LBP, with occasional left leg numbness, [which] worsens over the past 2 years”.  A lumbar spinal X-ray image showed mild narrowing of the L4-5 and L5-S1 intervertebral discs, which are consistent with early degenerative change.  The physical therapist’s patient note (date omitted) documented that for moderate pain control, the CI required muscle relaxers, non-steroidal anti-inflammatory drugs (NSAID) and mild narcotics.  A spinal MRI revealed a bulging disc at L4-5, an annular tear, broad based disc protrusion L5-S1 and nerve root displacement along with lumbar spine spondylosis (referring to degenerative osteoarthritis of the joints between the center of the spinal vertebrae and/or neural foramina).

Throughout 2007, the CI received follow-up care from both physical therapy and primary care provider for his chronic LBP condition; the latter noted that CI did not receive any pain control benefit from [steroid] epidural injection(s).  The CI underwent an L5-S1 microdiskectomy, for radiculopathy associated with an L5-S1 disk, in February 2008.   The pain management specialist noted that after the post-surgical procedure, the CI reported significant improvement of left leg numbness and pain but no improvement of his LBP.  The CI underwent an anterior L4-5 fusion on 26 August 2008, yet despite the second procedure and pain medications, there was no improvement of the CI’s LBP.  During the pain management evaluation, the examiner also observed the CI had a mildly antalgic gait and his strength was normal.

The MEB narrative summary (NARSUM) examination performed approximately 5 months prior to separation, documented LBP that worsens with activity and intermittent left lower extremity pain.  The MEB NARSUM physical exam findings were summarized in below chart.

The VA Compensation and Pension (C&P) exam performed 17 months post separation documented chronic severe LBP with radiation of pain into the left buttock and thigh.  The examiner noted limping and intermittently tingling greater in left lower extremity than the right.  The VA C&P physical exam findings were also summarized in the below chart.

There were two goniometric ranges-of-motion evaluations in evidence with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Thoracolumbar ROM (Degrees) | MEB 5 Mo. Pre-Sep | VA C&P 17 Mo. Post-Sep
Flexion (90 Normal) | 90 | 90
Combined (240) | 230 | 225
Comment | Slow but steady gait; Normal motor, sensation & reflexes; No spasm or tenderness | Pos. antalgic gait & tenderness at L5; Normal motor, sensation & reflexes
§4.71a Rating | 20% | 20%

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and the VA chose different coding options but this did not significantly affect the rating as noted above.  The PEB coded the anterior lumbar fusion condition as 5241 (spinal fusion), rated at 20%.  The VA coded the low back strain with sciatica; s/p failed L5-S1 microdiskectomy as 5243 (intervertebral disc syndrome), with 5237 (lumbosacral or cervical strain) and rated at 20%.  The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease”.  All exams proximate to separation met the 20% rating criteria for a mildly antalgic gait and chronic LBP which required both narcotic and neurogenic pain medication.

The VA C&P exam, while far remote from the Board’s 12 months interval for consideration, showed an antalgic gait; low back tenderness at L5 and muscular tenderness in the left buttock.  Historically, the Board’s precedent is that a functional impairment has to be coupled to a fitness determination to support a recommendation for additional peripheral nerve rating at separation.  The pain component of a radiculopathy is subsumed under the General Spine Rating as specified in §4.71a.  The sensory component in this case has no functional implications and there was no motor impairment documentation in evidence to support a recommendation for additional rating based on peripheral nerve impairment.  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 anterior lumbar fusion 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 anterior lumbar fusion 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 20140218, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXX
President
DoD 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 29 Apr 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:

- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN

						  XXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)

PD-2014-00814