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AF | PDBR | CY2012 | PD-2012-01342
Original file (PD-2012-01342.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2012-01342
BRANCH OF SERVICE: NAVY  BOARD DATE: 20150416
SEPARATION DATE: 20031103


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Personnel Clerk) medically separated for a back condition. The back could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards. He was placed on limited duty and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “chronic low back pain,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The Informal PEB adjudicated “chronic low back pain” as unfitting, rated 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: The CI elaborated no specific contention in his application.


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

IPEB – Dated 20030828
 VA* - (~2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back Pain 5293 20% Degenerative Joint Disease and DDD, Lumbar Spine 5243 20% 20040115
RLE Radiculopathy Associated w/DJD and DDD, Lumbar Spine 8520 10% 20040115
Other x 0 (Not In Scope)
 Other x 1
RATING: 20%
 RATING: 30%
* Derived from VA Rating Decision (VA RD ) dated 200 80912 (most proximate to date of separation [ DOS ] ) .



ANALYSIS SUMMARY:

Chronic Low Back Pain Condition. The CI developed chronic low back pain (LBP) associated with occasional radiation of pain into the right leg beginning in June 2001. Onset was associated with strenuous exercise but no specific injury. Magnetic resonance imaging (MRI) of the lumbar spine on 12 November 2002, revealed a herniated intervertebral disc at the L5-S1 level which made contact with the right S1 nerve root. Neurosurgical evaluation on 18 November 2002 noted back pain with radiation to the level of the knee and the MRI showing “minimal compression” of the right S1 nerve root. On examination, there was decreased range-of-motion (ROM) (not quantified in any way), and pain to the right knee level with straight leg raising (suggests nerve root irritation). Leg strength, sensation and reflexes were normal. The neurosurgeon advised non-surgical treatment at that time. Clinic examination on 10 February 2003 recorded flexion with fingers reaching to the knees (approximately 45 degrees), and a clinic examination on 3 March 2003 reported flexion of 45 degrees. Examinations at this time also noted pain with leg raise but normal gait, reflexes and strength. An examination on 7 April 2003 noted the CI could flex reaching his fingers slightly past the knees (45 to 60 degrees). Leg raise resulted in report of pain however strength and reflexes were normal. The CI underwent epidural steroid injection on 10 April 2003 however no significant benefit was noted on follow-up and no further injections were attempted. At an 8 May 2003 clinic encounter the CI reported he was doing pretty good (with moderate pain rated 5). On examination he was in no apparent distress and his gait and posture were normal.

Orthopedic evaluation on 20 May 2003, noted chronic LBP with occasional exacerbations of more severe pain and radiation of pain into the right leg. The CI denied problems with leg weakness or other neurologic symptoms. On examination active ROM of the back was characterized as “full” by the orthopedic surgeon. Leg raise was reported to provoke pain but leg strength and reflexes were normal. Since the CI reported no significant benefit from non-surgical treatments he was referred to a spine surgeon for opinion regarding surgical treatment. The civilian orthopedic spine surgery evaluation on 8 July 2003, recorded a history of chronic low back unchanged over 2 years with occasional periods of worse pain and periods of decreased pain (but overall the same). The pain was aggravated by activity, prolonged standing and walking. There was radiation of pain into the right leg with numbness of the right foot but no lower extremity weakness. On examination there was muscle spasm of the back with altered contour (list to the left and slightly flexed) with an antalgic gait. The CI flexed reaching his fingers to the distal third of the thigh (close to the knee; approximately 30 to 40 degrees) and extension was 10 degrees, both with report of pain. Leg raise was accompanied by radiating pain. Sensation, reflexes and strength were normal. The orthopedic spine surgeon noted that the CI did not have an identifiable motor or sensory deficit but had signs of nerve root irritation. He thought that surgery would have at most a 75% chance of providing improvement. After considering the option the CI decided to not undergo surgery. On 12 July 2003, the CI sought care for an exacerbation of LBP of 2 days duration. On examination the back ROM was stated to be full. The MEB orthopedic narrative summary on 14 July 2003, described chronic LBP of moderate severity (5/10) with occasional (“sometimes”) exacerbations of 8/10. Symptoms were aggravated by prolonged sitting or standing. Radiation of pain into the right leg without weakness was also reported. On examination, active ROM of the back was stated as full. Leg raising caused pain. Strength, reflexes and sensation of the lower extremities were normal. On 10 August 2003, the CI sought care for an exacerbation of LBP since that morning. On examination the back ROM was stated to be full.

At the time of the VA Compensation and Pension (C&P) examination on 15 January 2004, 2 months after separation, the CI reported chronic LBP aggravated by prolong standing, bending and lifting. Pain radiated into the right leg with occasional numbness of the right foot. The CI reported two episodes of incapacitating pain lasting 2 days in November 2003. On examination there was muscle spasm associated with altered spinal contour (list to the right) and an antalgic gait. Forward bending was limited to 30 degrees, extension 20 degrees, right side bending 20 degrees, left side bending 30 degrees, and rotation 45 degrees both sides. Pain onset was noted at the end points of motion (and motion was stopped at pain onset). Pain was also noted to radiate to the right thigh. Lower extremity sensation, strength and reflexes were normal. According to subsequent VA C&P examinations, the CI underwent back surgery in July 2004 without improvement in his back pain. The subsequent VA C&P examinations (performed four or more years after surgery) recorded flexion of 45 and 60 degrees.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the chronic LBP 20% using diagnostic code 5293 (Intervertebral disc syndrome) from the VASRD (2003) in effect at the time. The VASRD rating guidelines for the spine were changed to the current guidelines effective on 26 September 2003 after the PEB (28 August 2003) but just prior to the CI’s DOS (3 November 2003). The VA rated the degenerative joint and degenerative disc disease of the lumbar spine 20% coded 5243 (intervertebral disc syndrome) using the current VASRD guidelines. The VA also granted a 10% rating for the right lower extremity radiculopathy (8520 sciatic nerve). In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. The Board notes that the 2003 VASRD standards for the spine, which were in effect at the time of the PEB adjudication, were changed to the current §4.71a rating standards effective on 26 September 2003 just prior to the CI’s separation on 3 November 2003. The current general rating formula for diseases and injuries of the spine is based on thoracolumbar limitation of motion. Except for the VA C&P examination 2 months after separation, examinations in the months during 2003 prior to separation documented back flexion that exceeded 30 degrees and ranged from 45 degrees to “full” ROM and therefore did not support a rating higher than the 20% adjudicated by the PEB or the VA. The VA C&P exam 2 months after separation recorded limitation of thoracolumbar flexion that supported consideration of the next higher rating of 40%. At the time of this examination, there was an apparent flare based on the presence of muscle spasm with an antalgic gait and abnormal contour (listing). Similarly, the orthopedic spine examination on 8 July 2003 also indicated the presence of muscle spasm and recorded flexion with finger tips reaching to the thigh close to the knee which approximates 30 to 40 degrees. However other examinations reported either full motion or flexion limited to 45 degrees including during exacerbations of back pain (clinic records dated 10 February 2003, 3 March 2003, 7 April 2003, 20 May 2003, 12 July 2003, 14 July 2003, and 10 August 2003). The Board discussed whether the 8 July 2003 orthopedic examination and the January 2004 after separation VA C&P examination which recorded flares with muscle spasm and limitation of motion approximating 30 degrees of thoracolumbar flexion supported the next higher rating (considering §4.40 functional loss, §4.45 the joints, and §4.3 reasonable doubt). However the Board noted several examinations reported “full” ROM supportive of a lower rating as well as other episodes of increased back pain that were not accompanied by spasm or limitation of motion that approached the next higher rating. The Board concluded the preponderance of evidence reflected an overall disability picture that most nearly approximated the 20% rating including taking into account flares and use.

The Board noted that several of the examinations in the service treatment records did not report ROM in degrees. The current VASRD rating guidelines for the spine which are based on limitation of thoracolumbar ROM expressed in degrees was not effective until 26 September 2003 after the examinations documented in the service treatment records. The Board noted that while the examinations were not goniometric, the descriptions of the motion as “full” and fingers reaching the knees were sufficiently specific and detailed to conclude the limitation of motion did not approach the 30 degrees limitation (out of 90 degrees) to support the 40% rating. These were also consistent with the subsequent remote VA C&P examinations which also demonstrated flexion exceeding the 30 degree threshold. While the VA C&P examination was more proximate to separation within a time frame of months, the evidence of the record shows the chronic nature of the back condition which was stable and not changing over time including in the year prior to separation. The CI underwent surgery in July 2004 without benefit and following surgery remote VA examinations recorded limitation of motion similar to that seen prior to separation and prior to surgery (45 degrees). The Board also considered a rating the back condition using the VASRD formula based on incapacitating episodes due to intervertebral disc syndrome. The criteria are based on the number of incapacitating episodes in the prior 12 months requiring bed rest prescribed by a physician. To support a rating higher than 20% there must have been incapacitation of a total duration of at least 4 weeks during the prior 12 months. No documented physician directed bed rest was evidence in the service treatment records or at the time of the C&P examination. The Board concluded the evidence did not support a higher rating using this alternate formula providing no additional benefit to the CI. Since the prior VASRD guidelines were in effect at the time of the PEB, the Board also considered its rating recommendation based on those guidelines however did not conclude that a higher rating resulted under any applicable code.

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy. The CI had a herniated disc with radicular pain documented in the treatment records however examinations consistently documented normal strength, reflexes, and sensation. The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting. While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities. There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing. The Board therefore concludes that additional disability rating was not justified on this basis. 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 chronic low back pain 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. In the matter of the chronic LBP 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 20120726, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record




XXXXXXXXXXXXXXX
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) RECOMMENDATION
Ref:     (a) DoDI 6040.44
(b) CORB ltr dtd 25 Jun 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:

-        XXXXXXXXXXXXXXXXXXXX, former USN
-        XXXXXXXXXXXXXXXXXXXX, former USN
-        XXXXXXXXXXXXXXXXXXXX , former USN
-        XXXXXXXXXXXXXXXXXXXX, former USN
-        XXXXXXXXXXXXXXXXXXXX , former USMC
-        XXXXXXXXXXXXXXXXXXXX, former USN
-        XXXXXXXXXXXXXXXXXXXX, former USN
-        XXXXXXXXXXXXXXXXXXXX, former USN
-        XXXXXXXXXXXXXXXXXXXX, former USMC
-        XXXXXXXXXXXXXXXXXXXX, former USN
-        XXXXXXXXXXXXXXXXXXXX, former USMC
-        XXXXXXXXXXXXXXXXXXXX, former USMC
-        XXXXXXXXXXXXXXXXXXXX, former USN
        




XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel (Manpower & Reserve Affairs)







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