RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxxxxxxxxxxx BRANCH OF SERVICE: MARINE CORPS

CASE NUMBER: PD1100836 SEPARATION DATE: 20040831

BOARD DATE: 20120703

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a USMC mobilized reservist, SGT/E-5 (3051/Warehouse Man), medically separated for multi-level right-sided foraminal stenosis with associated disc disease. The CI had back pain with numbness radiating down to his thighs starting after a physical training run and his symptoms increased while deployed to Iraq. He was sent home early due to his back condition. The back condition did not improve adequately with conservative treatment and the CI was unable to meet the physical requirements of his rating and rank or satisfy physical fitness standards. He was referred for a Medical Evaluation Board (MEB). The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the low back condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION: “At the time I was initially rated I had under gone all the therapies available except surgery. I was told while the only option left for me was surgery. I could not have the surgery due to being an activated reservist and I would have to have my surgery through the VA. I was subsequently medically separated from the USMC. Having been told that I had exhausted all treatment options available to me, I had little choice other than to accept the separation and attempt to seek treatment through the VA. Had I been authorized to have the necessary surgery while on active duty I believe that I would have been medically retired from the USMC based on the standards and the regulations in place at that time.”

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. 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 (BCNR).

RATING COMPARISON:

*Increased to 100% from 20070616 for surgery and then 40% from 20070301 with diagnosis changed to Degenerative disc disease, lumbosacral spine with paresthesia into left lower extremity, status post spinal fusion L2-3. Also 8799-8720 Paresthesias Right lower extremity associated with degenerative disc disease, lumbosacral spine with paresthesia into left lower extremity, status post spinal fusion L2-3 at 10% from 20070323.

**Increased to 50% from 20060717 when 9411 PTSD added at 30%, and then 100% from 20070116 and 70% from 20070301 with above changes to 5242.

ANALYSIS SUMMARY: The Board acknowledges the CI’s assertions that he should have been authorized to have surgery while on active duty. It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to asserted service improprieties in the disposition of a case. 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 VASRD standards, based on severity at the time of separation. It must also judge the fairness of PEB fitness adjudications based on the fitness consequences of conditions as they existed at the time of separation. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation and is limited to conditions adjudicated by the PEB as either unfitting or not unfitting. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Multi-Level Right-Sided Foraminal Stenosis with associated Disc Herniation Condition. The CI was first seen for back pain in late 2002 when he reported numbness radiating down to his thighs starting after a physical training run. His symptoms increased while deployed to Iraq. He was sent home early due to his back condition. In December 2003, a physician noted about 45 degrees forward flexion and about 5 degrees of extension. He also intermittently had significant muscle spasms and antalgic gait. The CI’s condition failed to improve despite conservative treatment with nonsteroidal anti-inflammatory (NSAID), narcotic pain, and antidepressant medications; physical therapy; and epidural steroid injections. An MRI performed in June 2003 noted right-sided neural foraminal stenosis at L2-3, L3-4, L4-5, and L5-S1, with the worst abnormalities at L2-3. Plain x-rays the same month documented diffuse degenerative changes and findings consistent with moderate degenerative disc disease (DDD) and possible herniated disc at L2-3. Plain X-rays from the VA in October 2004 show a prominent lordotic curve and interspace narrowing at L1-2 and L2-3 with osteophytes.

The MEB narrative summary (NARSUM) was completed on 24 May 2004, approximately 3 months prior to separation and it noted a one year history of low back pain (LBP) with radiation down both legs, with the right side somewhat worse than the left. The physical examination findings are in the chart below. There were no goniometric measurements in the service treatment record (STR). The MEB NARSUM examiner noted “some decreased range of motion” of the lumbosacral spine and a positive straight leg raise test bilaterally. No motor, sensory, or reflex abnormalities were noted. The VA Compensation and Pension (C&P) exam, performed on 12 October 2004 (approximately 1.5 months after separation) documented range-of-motion (ROM) measurements and they are recorded in the chart below. It also reported a clinical history of numbness and tingling of both feet. This, as well as numbness and tingling in both lower extremities, occurred intermittently and when the CI would try to use the elliptical trainer. A separate C&P exam performed on 9 September 2006 noted a normal neurological examination.

There was one ROM evaluation in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

The PEB determined the CI was unfit for continued service secondary to multilevel right-sided foraminal stenosis with associate disc herniation and applied a 10% disability rating for 5242 Degenerative arthritis of the spine. The VA also applied a 10% disability rating using 5242 and its rating was based on flexion of the thoracolumbar spine limited to 80 degrees. The VA included paresthesia into lower extremities in the diagnosis and did not provide a separate rating for radiculopathy. The CI did have spine surgery in June 2007 and the VA temporarily increased the rating to 100%. After surgery, the rating was scheduled to be deceased to the previous 10% rating. However, a VA C&P examination was completed on 23 March 2007 and it noted an antalgic gait, use of a cane, and flexion and extension both limited to 5 degrees. The rating was increased to 40% based on that examination. The diagnosis was changed to DDD, lumbosacral spine with paresthesia into left lower extremity, status post spinal fusion L2-3 and a separate rating was applied for the right lower extremity coded 8799-8720 and rated at 10%.

The Board directs attention to its rating recommendation based on the above evidence. While no service examination contains ROM measurements, the MEB NARSUM and other examinations otherwise appear consistent with the VA C&P examination and its goniometric measurements. The totality of evidence supports a 10% rating as applied by both the service and the VA. The Board also considered adding a separate rating for radiculopathy. 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. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. The CI had paresthesias in both lower extremities but there was no evidence of any neurological impairment and all examinations noted normal motor and sensory examinations. There is no evidence of any functional impairment in this case and the Board cannot 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 multi-level right-sided foraminal stenosis with associated disc herniation 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 multi-level right-sided foraminal stenosis with associated disc herniation 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 recharacterization of the CI’s disability and separation determination, as follows:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110830, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

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 10 Jul 12

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandum, approve the recommendations of the PDBR the following individuals’ 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:

XXX XX, former USMC

XXX XX, former USMC

XXX XX, former USMC

XXX XX, former USMC

XXX XX, former USN

XXX XX, former USN

XXXXXXX

Assistant General Counsel

(Manpower & Reserve Affairs)