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AF | PDBR | CY2012 | PD 2012 01082
Original file (PD 2012 01082.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX      CASE: PD-2012-01082
BRANCH OF SERVICE: NAVY   BOARD DATE: 2014 1103
Separation Date: 20031231


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty HM3/E-4 (HM3/Hospital Corpsman) medically separated for chronic low back pain (LBP). The back condition could not be adequately rehabilitated to meet the physical requirements of her Rating or satisfy physical fitness standards. She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB). The chronic lower back pain was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The MEB also identified and forwarded four other conditions. The Informal PEB (IPEB) adjudicated the chronic lower back pain as unfitting, rated at 10%. The CI non-concurred the IPEB findings and requested and was granted a Formal PEB (FPEB) . The FPEB reaffirmed the IPEB findings and recommendation, adjudicating the chronic lower back pain condition unfitting, rated at 20% . The CI non-concur with the FPEB findings and filed a Petition for Relief (PFR) on the basis of seeking compensation for her mental health (MH) condition. The CI’s PFR not meet threshold of requirements for reconsideration, therefore it was not review by the Naval Council of Personnel Boards. The CI case file was returned to MEB for further evaluation, and in August 2003, the second MEB forward two additional conditions to PEB as not meeting retention standards. The IPEB determined that the depression and pain conditions were not unfitting, re-affirmed the original FPEB finding and recommendations. The CI made no further appeals and was medically separated.


CI CONTENTION : “My medical board report lists a number of conditions. I was told I was found unfit because of the multiple conditions listed and was being discharged due to my ongoing list of problems and prognosis was not good; however my rating only reflected chronic lower back pain. My chronic pain started 7/98. The Navy had done numerous magnetic resonance imaging’s (MRIs), physical therapy (PT) and pain management through medication from 7/98 to 9/00. In 9/00 I was sent to the Pain Management Clinic. This clinic treated me with steroids both by mouth and injections as well medications, resulting in minimal to no pain relief and a lot of weight gain. In January of 2002 a pain clinic physician decided to do a discography which showed I had a ruptured disc and a large annular tear in my L5-S1 disc. The physician explained and showed me the film of my disc where a portion of it was missing and was the reason for the pain in my back and legs. He also explained that I had additional disk that were bulging osteoarthritis of the spine and degenerative changes; part of which the multiple MRI's showed but he was uncertain as to why the MRI never picked up the large tear. My treatment with the pain clinic continued with one surgical procedure and pain medications. In August 02 I learned I was being Medical boarded out of the military. I feel I was not treated fair by the board. All test and letters were not considered. I was discharged because of multiple medical conditions but was only rated for one. The rating of 20% given was based on pain not the fact that I had a ruptured disc. Since discharged and under the care of the VA, this condition has become progressively worse. Also a psychiatric medical board was also done in relation to my original medical board based on a PTSD questionnaire. I requested submission of new/additional information as was told by my medical board that I could not submit it. The counselor later found out he was in error. This information was told to the board but they would not take my new additional information. I have a sign letter by this counselor admitting this mistake and that the board would not take my additional information. I am also submitting a copy of my last VA claim to show that the condition I was discharged for as well as the psychiatric issue that was attempted to be submitted to the board has gotten progressively worse since I was discharged.”


 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 lower back pain is addressed below. Additionally, all other conditions identified by the PEB are addressed below, since they have been requested by the CI. Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Naval Records.


invalid font number 31502 RATING COMPARISON invalid font number 31502 : invalid font number 31502
invalid font number 31502
Service FPEB – Dated 20030605
 VA – (2 mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5295 20% Degenerative Disc and Joint Disease with History of Piriformis Syndrome 5243 20% 20040107
Piriformis Syndrome Cat II
Muscle Myalgia Cat III Fibrocystic Breast Disease 7628 0% 20040209
Chronic Constipation Cat III Gastroesophageal Reflux Disease with Irritable Bowel Syndrome, also claimed as Constipation 7319-7346 30% 20040209
Hiatal Hernia Cat III
GERD Cat III
Palpitations Cat III Heart Palpitations 7010 30% 20040209
Tension Type Headaches Cat III Headaches, including Migraine 8100 10% 20040209
Migraine Headaches Cat III
Microadenoma Pituitary Cat III Hyperprolactinemia 7916-7904 0% 20040209
Allergic Rhinitis Cat III Sinusitis 6513 0% 20040209
Hypertension Cat III Not Addressed
Capsulitis of the Temporomandibular Joint Cat III Temporomandibular Joint (TMJ) Syndrome 9905 0% 20040209
Obesity Cat IV Not Addressed
Other x 0 (Not in Scope)
 Other x 7 (Not in Scope)
Combined: 20%
 Combined: 80%
Derived from VA Rating Decision (VARD) dated 20040909 (most proximate to date of separation ) invalid font number 31502


ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the impairment with which her conditions continue to burden her, and the significant impact they have had on her quality of life. The CI contends that her conditions have progressively gotten worse over time. It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate members for future severity of conditions. That role and authority is granted to the Department of Veterans Affairs (DVA). The Board evaluates DVA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation. While other conditions or diagnoses may have existed during military service, compensation can only be offered for those conditions that cut short a member’s career and then only to the degree of severity present at the time of separation. The DVA, however, is empowered to compensate for all service-connected conditions and to periodically re-evaluate conditions and adjust the Veteran’s disability rating should the degree of impairment change.

The Board also acknowledges the CI’s contention that she was not treated fairly by the Navy. It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s assertion regarding suspected improprieties in the processing of her 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, based on severity at the time of separation. It must also judge the fairness of PEB fitness determinations based on the fitness consequences of conditions as they existed at separation.

L ow back pain ( LBP ) . The range - of - motion (ROM) evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.



Thoracolumbar ROM
(Degrees)

MEB ~ 21 mos. Pre-Sep

 PT ~ 16 mos. Pre-Sep
 VA C&P ~ 2 mos. Post- Sep
Flexion (90 Normal)

No ROM’s		 Full 35
Extension (30)
 - 10
R Lat Flexion (30)
 Full 30
L Lat Flexion (30)
 Full 30
R Rotation (30)
 80 45
L Rotation (30)
 50 45
Combined (240)
 - 165
Comments
Marked left SIJ pain radiating into left buttocks; tenderness in sciatic notch that also radiated down left leg into calf and lateral aspect left foot; mild right sacroiliac (SI) joint tenderness; mild increase in symptoms on left side with seated straight leg raise; 2+ reflexes; decreased sensation along lateral aspect left leg down into calf and lateral aspect left foot; strength 5/5		 Tenderness to palpation TTP paraspinal, sciatic notch; flexion with pain; extension with a “pinch”
Gait normal; pain on movement; positive straight leg raise on right; ROM additionally limited by pain; pain has major functional impact; signs of intervertebral disc syndrome; motor intact; sensory –decreased sensation of left dorsal and lateral foot consistent with S1 dermatomal distribution paresthesia right lower extremity reflexes nml; left lower extremity ankle jerk +1- all others +2
invalid font number 31502
The CI has had a long history of LBP which started in July 1998 and was well documented in the numerous notes in the service treatment record ( STR) . Her symptoms were LBP with episodic l eft lower extremity radicular pain ; tenderness to palpation ( TTP ) over the left piriformis and was diagnosed with sciatica . A lumbar spine MRI showed no disc herniation or significant spinal stenosis. The o rthopedist noted a long history of back pain and advised non-steroidal anti-inflammatory drugs and physical therapy ( PT ) . The p ain m anagement (PM) specialist noted a poor response to treatment and facet tenderness greater on the left than the right. The electromy ogram and nerve conduction velocity testing demonstrated a normal study. The CI was evaluated by P M throughout 2000-2003 and underwent steroid injecti ons . The o rthopedist noted physical exam findings of normal strength and reflexes however there was left leg shortening at 3/8 inch with a left piriformis restriction. The examiner diagnosed left piriformis syndrome with sacral dysfunction, gait dysfunction and short left leg. The CI underwent a discography which had findings of a large annular tear at L5-S1 .

The initial MEB n arrative s ummary (NARSUM) exam (performed 21 months prior to separation ) documented that the CI had undergone extensive PT, P M , epidural steroid injections and piriformis inj ections . N one of these therapies were able to provide adequate pain relief to allow her to prepare and participate in physical fitness training . The MEB NARSUM physical exam findings are summarized in the chart above. The PT noted that the CI was using transcutaneous electrical nerve stimulation for the LBP; however she still had the chronic pain. The PT physical exam findings are summarized in the chart above . The lumbar spine MRI showed mild L5-S1 disc extrusion with mild degenerative changes. The n euro surgeon noted chronic LBP which radiated down her leg to her toes. There were physical findings of normal strength, reflexes and gait. The CI continued to see k emergency room care for acute LBP and piriformis syndrome throughout 1999 to 2003. The o rthopedist noted chronic LBP and increased with prolonged sitting. The second MEB NARSUM exam 15 months prior to separation documented no improvement in the piriformis syndrome pain. The MEB NARSUM physical exam findings are summarized in the chart above.

The c ommander’s s tatement documented that the CI’s physical condition prevented her from performing any strenuous activity and her duties associated with her Military Occupational Specialty .

The VA Compensation and Pension (C&P) exam ( 2 months after separation ) documented that the CI had chronic, constant sharp, burning LBP with radiation to the bilateral lower extremities left greater than right which was elicited by physical activity without incapacitation . She had functional limitations of ROM, ambulating and lifting. The C&P examiner’s diagnosis for the lower back condition was: S-1 radiculopathy, with int ervertebral disc syndrome .

The V A Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine which were in effect at the time of the MEB/ PEB , were changed to the current rating standards in September 2003. The older standards were subject to the rater’s opinion regarding degree of severity, whereas current standards specify rating thresholds in degrees of ROM impairment. When older cases have goniometric measurements in evidence, the Board reconciles (to the extent possible) its opinion regarding degree of severity for the older spine codes and ratings with the objective thresholds specified in the current VASRD §4.71a G eneral R ating F ormula for the S pine. This promotes uniformity of its recommendations for different cases from the same period and more conformity across dates of separation, without sacrificing compliance with the DoDI 6040.44 requirement for rating IAW the VASRD in effect at the time of separation.

The Board directs attention to its rating recommendation based on the above evidence. The Navy FPEB coded the LBP condition as 5295 ( l umbosacral strain ) and rated at 2 0% . The VA used diagnostic code 5243 ( intervertebral disc syndrome ), and assigned a disability rating of 20%. The January 2004 C&P exam (obtained 2 months after separation ), the thoracolumbar flexion was greater than 30 degrees but not greater than 60 degrees. IAW VASRD §4.71a, a 20% rating is warranted when thoracolumbar flexion is greater than 30 degrees but not greater than 60 degrees. There were no incapacitation episodes documented in the STR. The Board determined that diagnos tic code 52 43 ( intervertebral disc syndrome ) was the most appropriate code for the CI’s back condition . After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the Chronic LBP condition. It is appropriately coded 5243 (intervertebral disc syndrome) and meets criteria for the 20% rating level, IAW the VASRD §4.71a which was in effect at the time of separation, November 2003.

Piriformis syndrome . As noted above, t he Navy F PEB adjudicated p iriformis s yndrome as Category II condition. The Board determined that piriformis syndrome was indeed related to and contributed to the unfitting low back condition. There was no performance-based evidence that the symptoms of piriformis syndrome caused significant interference with the performance of required military duties. Therefore, piriformis syndrome did not constitute a separately unfitting condition for disability rating purposes. It is appropriate for this condition to be considered as Category II. After due deliberation, considering all of the evidence and mindful of VASRD §4.3, the Board found insufficient cause to recommend a change in the PEB adjudication of the piriformis syndrome.

 Other F PEB Conditions . As noted above, 12 conditions (muscle myalgia, capsulitis of the temporomandibular joint, tension headaches, migraine without aura, hiatal hernia, irritable bowel syndrome, ga stro- esophageal reflux disease, nonulcerative dyspepsia, allergic rhinitis, palpitations, hypertension, and pituitary microadenoma) were found by the Navy FPEB to be Category III and obesity was determined to be Category IV. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. 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. All of these conditions were investigated by the action officer, and considered by the Board.
After a thorough review of the record, the Board did not find sufficient evidence that any of the above stated conditions caused significant interference with satisfactory performance of military duties. The Board determined that they were indeed Category III and one other condition, obesity, was adjudicated by the FPEB as Category IV. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the FPEB adjudication for any of these remaining FPEB conditions.

Mental Condition s. As noted above, t he CI underwent a second MEB in August 2003. Two mental conditions (depression, and pain disorder) were forwarded to the Informal PEB. The IPEB considered the two new conditions and recommended no change in finding. These two mental conditions (depression, and pain disorder) were investigated by the action officer and considered by the Board. After a thorough review of the record, the Board did not find sufficient evidence that either of these conditions caused significant interference with satisfactory performance of military duties. The non-medical assessment dated 14 August 2003 made no mention of any psychiatric or psychological symptoms. The Board could not find any evidence that the CI was ever profiled for psychiatric or psychological symptoms. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB determination for either of these two mental conditions.


 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 c hronic LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5243, IAW VASRD §4.71a that was in effect at the time of separation. In the matter of the p iriformis syndrome, the Board unanimously recommends no change to the F PEB adjudication as Category II. In the matter of the muscle myalgia, capsulitis of the temporomandibular joint, tension headaches, migraine without aura, hiatal hernia, irritable bowel syndrome, gastro- esophageal reflux disease, nonulcerative dyspepsia, allergic rhinitis, palpitations, hypertension, and pituitary microadenoma ; the Board unanimously recommends no change to the F PEB adjudication as Category III. In the matter of the obesity, the Board unanimously recommends no change to the F PEB adjudication as Category IV. In the matter of the depression, and pain disorder: the Board unanimously recommends no change from the PEB determination as not unfitting. There were no other conditions within the Board’s scope of review for consideration.



RECOMMENDATION : The Board, therefore, recommends that the CI’s prior determination be modified, and the VASRD code be changed as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Lower Back Pain 5243 20%
COMBINED
 20%


The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 120621 , w/atchs
Exhib it 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)

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