RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-01094
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20140821
SEPARATION DATE:  20080530

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty AOAN/E-3 (AO AN [Aviation Ordnanceman, Airman]) medically separated for a back condition.  The 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) and referred for a Medical Evaluation Board (MEB).  The MEB, forwarded “postsurgical arthrodesis status closed fracture of the lumbar vertebra without mention of spinal cord injury, thoracic or lumbosacral neuritis or radiculitis, unspecified late effect of peripheral nerve of pelvic girdle and lower limb” and “lumbago,” to the Physical Evaluation Board (PEB) in accordance with (IAW) SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “status post T12-L4 posterior fusion” as the single Category I condition (unfitting), and listed “right side L3 radicular symptoms,” “lateral femoral cutaneous nerve injury during bone grafting,” “low back pain” and “status post L2 burst fracture,” as Category II conditions (conditions that are related to and contributing to the category I unfitting condition).  The PEB rated the Category I condition at 20%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 “status post T12-L4 posterior fusion” condition is addressed below.  Also the Category II conditions listed as “right side L3 radicular symptoms,” “lateral femoral cutaneous nerve injury during bone grafting,” “low back pain” and “status post L2 burst fracture” are within the DoDI 6040.44 defined purview of the Board 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.

RATING COMPARISON:

Service IPEB – Dated 20080325	VA - (10.5 Mos. Post-Separation)*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post (s/p) T12-L4 Posterior Fusion	5241	20%	S/P T12-L4 Posterior Fusion for L2 Vertebral Burst w/Degenerative Disc Disease of the Lumbar Spine, Canal Stenosis and Retrolisthesis	5010-5235	10%	20090415	
Lateral Femoral Cutaneous Nerve Injury during Bone Grafting	Category II					
Low Back Pain	Category II					
S/P L2 Burst Fracture	Category II					
Right Side L3 Radicular Symptoms	Category II	Post-Op Left Lateral Femoral Cutaneous Neuropathy, S/P spinal fusion
	8529	0%	20090415	
Other x 0 (Not in Scope)	Other x 2 (Not in Scope)	20090415	
Combined:  20%	Combined:  20%	
*Derived from VA Rating Decision (VARD) dated 20060609 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB.  However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to the VA Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.

Back Condition.  Review of the service treatment record (STR) reveals that the CI was well until 20 January 2007, when he fell off a 10-foot cliff, falling another 30 feet further down a slope.  Although able to walk after the accident, on the following day was diagnosed with an unstable L2 (second lumbar) burst fracture.  Radiograph of the lumbosacral spine revealed L2 compression fracture “with about 50% loss of height.”  On 26 January 2007, he underwent spinal fusion of five vertebral bones from T12 to L4.  The CI was placed on his initial LIMDU on 11 February 2007 and his physician estimated that he would not be fit for duty for at least a year.  In follow-up, 10 weeks after surgery, the CI was noted to be “very happy with his surgery and recovery.”  Upon examination, the back was non-tender to palpation and good flexibility was noted (“can almost touch feet on forward flexion”).  Examination of his back in June 2007 noted no tenderness to palpation over the spine, absence of muscle spasm and a normal gait.  Having initially reported much improvement in symptoms, the CI later noted (8/10) non-radiating back pain since surgery, worse with sitting or standing and disrupting sleep, adding that he had been minimizing symptoms in order to stay in the Navy.  Examination in July 2007 documented absence of muscle spasms in the lumbosacral spine and noted that range-of-motion (ROM) “has improved” after surgery, adding that the CI was “able to touch toes without bending knees.”  The CI later stated that his back pain had been “continuous since surgery,” adding that symptoms worsened after a motor vehicle accident in September 2007, for which there is no documentation in evidence.

At the MEB physical (5 months prior to separation), the CI noted back pain, painful joints (back) and impaired use of extremities, but did not provide details.  The MEB examiner noted a scar, and documented sciatic and paraspinal back pain.  A narrative summary (NARSUM) written for the MEB (5 months prior to separation) noted that the CI, while wearing a “back brace full time” is able to lift heavy items, but this resulted in significant pain in his back.  Noting side effects to narcotic analgesics, the CI reported using only non-steroidal anti-inflammatory medications.  Physical examination documented in the NARSUM revealed a well healed 15 cm surgical scar, but did not address paraspinal muscle tenderness, muscle spasm, guarding, gait and spinal contour.  Although a radiograph taken in July 2007 reported that the “hardware is intact and well positioned,” the NARSUM reported radiograph (date unspecified) results showing that one of the pedicle screws, which support the spinal fusion, was disconnected from its locking nut.  A non-medical assessment (NMA), 3 months prior to separation, described the CI’s limitations as unable to sit, walk or stand for prolonged periods and unable to lift greater than 25 pounds without pain or difficulty, all of which rendered him “unsuitable” and “precludes further assignment” in his Rating.  The MEB (5 months prior to separation) forwarded to the PEB the diagnoses listed in the case summary above.  The PEB (2 months prior to separation) adjudicated the “s/p T12-L4 posterior fusion” as a Category I unfitting condition.  The PEB listed four other conditions, noted above, each as a “related Category 2 diagnosis.”

The VA Compensation and Pension (C&P) examination (10 months after separation) was not included in the evidence provided for this Board to review, but was referenced in the VARD dated June 2009 (13 months after separation).  The VARD documents the CI’s report of lumbar pain, constant, bilateral and throbbing, with low back stiffness, weakness, fatigability, limited mobility and lack of endurance.  Although reporting flare-ups of his pain, which affect his gait, the CI denied incapacitating episodes in the previous 12 months.  On examination at the VA, the CI denied pain with spinal motion and reported that his spinal motion was not limited by pain, fatigability, weakness or lack of endurance.  A flattening of lumbar lordosis (the normal curve at the base of the spine) was noted.

The 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)	NARSUM ~4 Mo. Pre-Sep
(20080107) 	VA C&P ~10.5 Mo. Post-Sep
(20090415)	
Flexion (90 Normal)	(“…5 cm from floor”)	90	
Extension (30)	0	25	
R Lat Flexion (30)	10	25	
L Lat Flexion (30)	10	25	
R Rotation (30)	--	30	
L Rotation (30)	--	30	
Combined (240)	--	225	
Comment	Muscle tenderness, spasm, guarding, gait, spinal contour not addressed. Vertebral height collapsed greater than 50%. Loose pedicle screw identified on xray.	CI denied pain with motion, and denied that motion was limited by pain, fatigability, weakness or lack of endurance. Loss of lumbar lordosis. Loss of greater than 50% of vertebral height.	
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  For the purposes of this review, the Category II “low back pain” and the history of “L2 burst fracture” were subsumed under the unfitting “posterior fusion” condition, as “one disabling thoracolumbar spine disability,” as also noted in the VARD, dated 9 June 2009.  The PEB 
(2 months prior to separation) rated the condition as a Category I condition at 20% using VASRD rating code 5241 (spinal fusion).  The VARD (10 months after separation) rated the condition under VASRD code 5010-5235 (traumatic arthritis-vertebral fracture) at 10%, citing that, although limitation of motion is not severe enough to warrant a compensable evaluation,” there was evidence of “degenerative arthritic changes of the thoracolumbar spine that manifests painful motion” and “a 60% loss of vertebral height.”

Recognizing the severity of the CI’s original injury, the Board carefully examined the evidence for rating criteria at the time of separation.  The criteria for a 10% rating were clearly met, with the CI’s painful motion and a history of “vertebral fracture with loss of 50% or more” of vertebral height.  The criteria for a 20% rating include flexion not greater than 60 degrees, combined ROM not greater than 120 degrees, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour.  The Board noted that, given the absence of incapacitating episodes, and the absence of many of the criteria even for a 20% rating, the only mechanism for a rating greater than 20% in the thoracolumbar spine would be the presence of ankylosis which, noting the CI’s ability to flex the thoracolumbar spine to within 5 cm of the floor, did not apply in this case.  The PEB had awarded a rating of 20% in this case, without specifying which criteria were applied for this 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 low back pain (LBP) condition, listed by the PEB as the Category I “status post T12-L4 posterior fusion,” and the Category II “low back pain” and s/p “L2 burst fracture.”

Contended peripheral neuropathy:  The Board considered whether an additional rating at separation could be recommended under a peripheral nerve code for the PEB Category II diagnoses of “right side L3 radicular symptoms” and “lateral femoral cutaneous nerve injury.”  The Board’s main charge with respect to these remaining contended Category II conditions identified by the PEB is therefore an assessment of the fairness of the determination that they 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.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The pain component of the neuropathy is appropriately subsumed in the spine rating assigned for the LBP condition detailed above, IAW VASRD general rating formula for diseases and injury of the spine.

The STR describes the CI’s initial injury as an unstable L2 (second lumbar) burst fracture with a right L3 radiculopathy (compressed nerve), notable for subjective “weakness…in the right leg.”  Although a “right L3 sensory loss and some subtle weakness in the soleus” muscle was initially reported, this neuropathy was resolved after surgery.  Repeated post-surgical follow-up appointments noted a functionally normal neurological examination (“normal strength and reflexes” Feb 2007; “no leg weakness,” “numbness of right lateral thigh completely resolved” Apr 2007; “normal gait” and “sensation intact” June 2007; “normal gait,” strength and reflexes normal July 2007).  The NARSUM (5 months prior to separation) noted “improvement in the weakness and pain in the right leg following his surgery,” and documented a neurological examination, with normal strength and reflexes, noting only a “subjective decrease in sensation consistent with lateral femoral cutaneous nerve perhaps versus an L3 dermatomal pattern on the right side.”  The VARD summarized the VA C&P examination, noted above, dated 10 months after separation, and documented subjective numbness and parasthesias (tingling) from the “left” lateral hip to the proximal lateral thigh, adding that “motor systems, sensory mechanisms, reflexes and strength were all normal in the left lower extremity.”  The VARD noted that the right L3 radicular symptoms had resolved.  In summary, the right L3 neuropathy was resolved subsequent to the posterior fusion surgery, and no further weakness was demonstrable.  The VA documented the “left” lateral cutaneous nerve injury as “mild or moderate,” and sensory only.

After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of the Category II peripheral neuropathy demonstrated that no sensory component, whether lateral femoral cutaneous nerve or right L3, was consequential to fitness in this case.  The conditions were neither sufficiently duty-limiting nor implicated in the NMA; therefore, they were not judged to fail retention standards.  These conditions were reviewed by the action officer and considered by the Board.  There was no performance-based evidence from the record that these conditions independently or significantly interfered with satisfactory duty performance.  The Board concluded that there was insufficient cause to recommend a peripheral neuropathy as an additionally unfitting Category I condition for disability rating, and 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 Category I LBP condition, and its subsumed Category II conditions mentioned above, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended Category II sensory peripheral neuropathy condition, the Board unanimously recommends no change from the PEB determination as not unfitting and agrees that it cannot recommend it for additional disability rating.  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 20140519, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

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

						  XXXXXXXXXXXXXX
	     				  Assistant General Counsel
		  (Manpower & Reserve Affairs)