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AF | PDBR | CY2012 | PD-2012-01804
Original file (PD-2012-01804.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2012-01804    
BRANCH OF SERVICE: MARINE CORPS          BOARD DATE: 20130814
SEPARATION DATE: 20060415              


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SGT/E-5 (0400, Basic Logistics Marine) medically separated for a lumbar spine condition. The CI began experiencing low back pain in 2005 after lifting heavy objects. He reported pain radiating to both his right and left extremities with his right greater than his left. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a temporary profile and referred for a Medical Evaluation Board (MEB). The lumbar spine condition, characterized as “displacement of intervertebral disc, site unspecified without myelopathy” by the MEB was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The informal PEB adjudicated “L4-L5 and L5-S-1 herniated nucleus pulposus (HNP)” as unfitting, rated 20%. The CI made no appeals, and was medically separated.


CI CONTENTION: “Lower back condition identified as L4-L5 and L5-S-1 herniated nucleus pulposus was rated at 20% by the PEB and at 50% later on by a VA Administration. The condition continue to worsen and complicated. Currently I am disabled by soc sec adm due to my conditions” [sic].


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 Service rating for the unfitting lumbar spine condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 20060206
 VA - (6/8 ? Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
L4-L5 and L5-S-1 HNP 5237 20% Lumbosacral Strain-Myositis, Lumbosacral HNP at L4-L-5 and L5-S-1 5299-5237 40% 20070101
Right-Sided L5-S-1 Radiculopathy … 8599-8520 10% 20070101
No Additional MEB/PEB Entries
 Other x 1 20070101
Combined: 20%
 Combined: 50%


ANALYSIS SUMMARY:

L4-L5 and L5-S-1 HNP. The CI reported he was well until September 2005 when he began experiencing low back pain radiating to both lower extremities right greater than left. On 14 September 2005 magnetic resonance imaging (MRI) of the lumbar spine revealed herniation of the intervertebral disc at L5-S1 with some lateralization to the right side and disc herniation of L4-L5 with lateralization to the left side. There was no evidence of canal stenosis, and loss of some spine curvature was noted. He was evaluated by neurosurgery and was offered nerve block treatment which was not performed. The CI underwent electromyogram (EMG) 29 November 2005 with chief complaint recorded as “low back pain radiating to right leg since May 2005”; the results of the EMG was not recorded . There was no evidence in the treatment record that the CI experienced incapacitating episodes, back spasms, gait disturbance, or peripheral neuropathy resulting in functional impairment. The Commander’s statement (CS) noted his performance “has been satisfactory and minimally affected by his current medical condition”. At the MEB/NARSUM exam dated 18 January 2006, approximately four months prior to separation, the CI reported lower back pain radiating to bilateral buttocks, posterior thighs, and calves, with symptoms more severe on the right. He indicated he had difficulty with ambulation and carrying a load and was unable to run or do physical activity of any type. Physical examination noted a normal gait and normal spine alignment. Range of motion (ROM) testing revealed a forward flexion decreased to 60 degrees. On exam strength and sensation were normal. At the VA Compensation and Pension (C&P) dated 1 January 2007, approximately eight months after separation, the CI reported suffering intermittent lower back pain that had recently become more severe and frequent, but pain was alleviated by medication and/or heating pad. The CI denied any additional limitation of motion during flare-ups. He reported numbness in his right leg, but denied any motor symptoms. Physical examination recorded tenderness to palpation of the lumbosacral spine as well as spasms and a “reverse lordosis of the spine”. The examiner recorded ROM forward flexion of 30 degrees with pain and stated the CI was unable to perform repetitive flexion secondary to pain. Motor strength and reflex exams were normal. The examiner noted some decreased sensation to pin prick in the right lateral lower extremity and top of right foot. At this time the CI was able to perform all activities of daily living, and was occupied full time without restriction. The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition 20% coded 5237 (lumbosacral strain) associated with L4-L5 and L5-S1 HNP. The VA rated 40% coded 5299-5237, citing forward flexion of the thoracolumbar spine of 30 degrees. The VA granted additional rating for right-sided L5-S1 radiculopathy coded 8599-8520, rated at 10% (paralysis). The Board agreed there was limitation on motion supporting the 20%. The Board noted the ROM values reported by the VA examiner to be significantly worse than those reported by the MEB examiner more proximate to separation. There is no record of recurrent injury or other development in explanation of this disparity. While ROM limitations may have progressed over time, there is no evidence in the record from which to conclude that the severity at separation approached that portrayed by the VA measurements. The Board unanimously agreed that there was insufficient evidence to support a rating of 40% under range of motion code. The Board considered rating under 8520 IAW §4.124; however, there was no evidence or ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication. There was no evidence of incapacitating episodes for a higher rating under 5243. There was no VASRD sanctioned pathway to a rating higher than the minimal compensable 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.


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 back 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:

UNFITTING CONDITION VASRD CODE RATING
Condition 5237 20%
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121103, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



                           XXXXXXXXXXXXXXXXXXXX
         President
         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 2 May 14

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






XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel (Manpower & Reserve Affairs)


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