RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: navy

CASE NUMBER: PD1100945 SEPARATION DATE: 20090228

BOARD DATE: 20120427

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty EM2/E-5 (WPF935/Electrician), medically separated for left lower extremity S1 radiculopathy secondary to epidural granulation tissue. He did not respond adequately to treatment and was unable to perform within his rating or meet physical fitness standards. He was placed on light duty and underwent a Medical Evaluation Board (MEB). Thoracic or lumbrosacral neuritis or radiculitis, unspecified, was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E or AFI. No other conditions appeared on the MEB’s submission. Other conditions included in the Disability Evaluation System (DES) packet will be discussed below. The PEB adjudicated the left lower extremity S1 radiculopathy secondary to epidural granulation tissue condition as unfitting, rated 20% with application of the Veterans Administration Schedule for Rating Disabilities (VASRD). The CI requested reconsideration for combat related designation but his disability did not meet the criteria for this designation and the Reconsideration PEB affirmed the PEB findings. The CI was then medically separated with a 20% disability rating.

CI CONTENTION: “I am requesting the change due to the consistent pain I am under on a daily basis, the only solution I have been provided is to continually take vicodin as a pain killer which I am instructed take regularly. Due to my worries of drug addiction I do not take them. Thus far nothing I do eleviates the pain I am in. This is an injury that I will be affected by for the remainder of my life. I feel the relating received was inaccurate for the limitation I am under, currently I am working however my job searches are limited by my ability to lift and move freely.” He elaborates no specific contentions regarding rating or coding and mentions no additionally contended conditions.

RATING COMPARISON:

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ANALYSIS SUMMARY: The DES is responsible for maintaining a fit and vital fighting force. 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. The DES has neither the role nor the authority to compensate service 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 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’s threshold for countering DES 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.

Left Lower Extremity S1 Radiculopathy Secondary to Epidural Granulation Tissue. The CI developed left S1 radiculopathy due to an L5-S1 intervertebral disc protrusion beginning in February 2007. The was no specific traumatic event associated with the onset other than his normal strenuous duties. The CI had pain but no weakness or sensory changes and electrodiagnostic testing was normal. Non-surgical treatment with epidural injections was not successful and he underwent left sided microsurgical nerve root decompression surgery (left sided L5-S1 medial facetectomy) on 20 December 2007. Initially the CI had relief of his radicular pain, but it recurred approximately a week after surgery. Repeat magnetic resonance imaging was consistent with epidural scarring as the cause for the persistent radicular pain. Despite an additional epidural steroid injection and medical therapy, the CI continued to experience on and off pain that limited his activities. The pain was provoked by bending, heavy lifting, long car rides. According to service treatment records (STRs) and the neurosurgery NARSUM, pain was predominantly from the left buttock into the left leg and heel, however there was very little in the way of back pain. There was no weakness or sensory changes. At the time of the neurosurgery narrative summary (NARSUM) on 5 August 2008, pain was at a “manageable level,” but not pain free. “Intolerable sciatica pain” was caused by bending, heavy lifting or running. Physical examinations by the neurosurgeon documented normal strength of the lower extremity with intact reflexes. Left leg raising provoked the radicular pain.

On detailed sensory examination there was “subtle” diminished sensation in an S1 distribution. Spine range of motion examination by the neurosurgeon at the time of the MEB NARSUM was described as 45 degrees at the lumbosacral junction and normal in the remainder of the lumbar spine and cervicothoracic spine. Movement at the lumbosacral junction does not equate directly to the range of motion used by the VASRD which combines thoracic and lumbar range of motion. The 45 degrees of lumbosacral junction motion combined with normal motion in the upper lumbar spine and thoracic spine would be expected to approximate a combined thoracolumbar flexion greater than 60 degrees since normal thoracic spine flexion alone is approximately 45 degrees and normal lumbar spine flexion is 45 to 60 degrees. The neurosurgeon’s diagnosis was left lower extremity S1 radiculopathy secondary to epidural granulation tissue.

The CI underwent a VA Compensation and Pension (C&P) examination on 8 October 2008, prior to separation. The CI reported pain with most activities including driving (however, he did not have pain driving a motorcycle), and walking two blocks. The examiner stated “he has not been incapacitated by low back pain in the past 12 months. He is doing his work at a desk job but did not return to his work as an electricians mate.” On examination, the gait was mildly antalgic. Neurologic examination was normal except for an absent left patellar reflex not previously documented. The gait was mildly antalgic. Thoracolumbar flexion was limited to 45 degrees due to radiating pain. Extension was 30 degrees; side bending and rotation bilaterally were 30 degrees (combined range of motion of 195 degrees). The PEB rated the left lower extremity S1 radiculopathy secondary to epidural granulation tissue 20% coded 8720, neuralgia, sciatic nerve (moderate). The VA rated the radiculopathy condition 10% coded 8720 (mild). The VA also granted a service-connected 20% rating for the CI’s spine condition based on limited range-of-motion (ROM) (coded 5243 intervertebral disc syndrome). The PEB did not adjudicate a separate rating for the CI’s spine condition. The Board first considered whether the CI’s lumbar spine condition and radiculopathy condition were separately unfitting conditions warranting separate ratings. Although the unfitting radiculopathy condition was related to the CI’s spine condition, the impairment interfering with duty was the radicular pain due to scar tissue, not lumbar pain. The STR indicates that radicular pain down the leg but not back pain was the problem preventing activity. Board members concluded that absent the radicular pain, there was no evidence of impairment due to the back that would be considered separately unfitting. The Board agreed with that the 10% VA rating for the radiculopathy was consistent with the examination findings of normal strength, especially in view of the fact that the VA’s separate rating under the general formula for rating diseases of the spine takes into consideration pain whether it radiates or not. Board members considered the severity of the radicular pain and the resulting functional limitations and concluded it most nearly approximated the 20% (moderate) rating under diagnostic code 8720, neuralgia of the sciatic nerve. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change from the PEB rating of 20% for the left S1 radiculopathy condition.

Remaining Conditions. Other conditions identified in the DES file were left shoulder pain and motion sickness. The CI developed left shoulder pain in September 2008 while in limited duty status. No trauma was indicated as a cause. X-rays demonstrated changes in the distal clavicle consistent with remote injury or other chronic condition, however none was previously documented. The CI was tender over this area on examination. The VA C&P examination records the CI attributed the left shoulder pain to sleeping on the left side because of his back and had not interfered with function at home or at work. There was mild acromioclavicular joint tenderness with full range of motion and normal strength. Motion sickness is not a disability under the rules of the military disability system but can be a cause for administrative separation when unsuiting for military service. None of these conditions were clinically or occupationally significant during the MEB period, none carried attached duty limitations, and none were implicated in the non-medical assessment. These conditions were reviewed by the action officer and considered by the Board. It was determined that none could be argued as unfitting and subject to separation rating. Additionally, tinnitus and several other non-acute conditions were noted in the VA proximal to separation were not documented in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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. In the matter of the left lower extremity S1 radiculopathy secondary to epidural granulation tissue and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication at separation. In the matter of lumbar spine condition, the Board unanimously agrees that it cannot recommend a finding of unfit for additional rating at separation. In the matter of left shoulder pain or any other medical conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

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 20111003, 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 16 May 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:

- XXXXXXXXXXXX XXX XX 4593

- XXXXXXXXXXXX XXX XX 9519

- XXXXXXXXXXXX XXX-XX-2098

- XXXXXXXXXXXX XXX XX 6408

- XXXXXXXXXXXX XXX-XX-6333

Assistant General Counsel

(Manpower & Reserve Affairs