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AF | PDBR | CY2012 | PD2012 01498
Original file (PD2012 01498.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xx         CASE: PD1201498
BRANCH OF SERVICE: MARINE CORPS         BOARD DATE: 20130529
SEPARATION DATE: 20030430


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPL/E-4 (2846/Ground Radio Technician) medically separated for lumbar disk disease with right sciatica and right shoulder impingement. The CI’s injury was related to lifting weights. The CI was placed on limited duty (LIMDU) in 2001 for his back condition. He underwent the usual conservative treatment of medication and physical therapy. He also complained of right shoulder pain. He made little progress with treatment and had a second period of LIMDU. The back and right shoulder conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards and he was referred for a Medical Evaluation Board (MEB). The lumbar and right shoulder conditions, characterized as “lumbar three-four disk disease with right sciatica,” “status post three epidural steroid injections” and “impingement right shoulder,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The MEB also identified and forwarded one other condition, “mild elevation of cholesterol/triglycerides,” for PEB adjudication. The PEB adjudicated “lumbar three-four disk disease with right sciatica” and “impingement right shoulder” as unfitting, rated 10% and 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions , “status post three epidural steroid injections” and “mild elevation of cholesterol/triglycerides” were respectively determined to be C ategory II (conditions that contribute to the unfitting condition) and C ategory III conditions (conditions that are not separately unfitting and do not contribute to the unfitting condition). The CI made no appeals, and was medically separated .


CI CONTENTION: The CI simply stated “back, ankle (left), shoulder impingement (right) and depression” without a specific contention.


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 ratings for the unfitting back and shoulder conditions are addressed below. The requested left ankle and depression conditions were not identified by the MEB/PEB, and thus are not 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 20030317
 VA - (15 Months Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Lumbar Three-Four Disk Disease with Right Sciatica
 5295 10% DDD Lumbosacral Spine with Right Radiculopathy 5242 20% 20040720
Impingement Right Shoulder
 5299-5003 10% No VA Entry*
Status Post Three Epidural Steroid Injections
 CAT II No VA Entry
Mild Elevation of Cholesterol/Triglycerides
 CAT III No VA Entry
No Additional MEB/PEB Entries
 Other x 2 20040720
Combined: 20%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 4 07 20 (most proximate to date of separation [ DOS ] ).
*Right shoulder subsequently NSC by VARD 20081027

ANALYSIS SUMMARY:

Lumbar Disc Disease (L3-4) with Right Sciatica Condition. The CI’s history of back pain began while lifting weights in December 1999. His symptoms improved but he experienced recurrent symptoms in June 2001 during Officer Training School. Magnetic resonance imaging (MRI) on 22 June 2001 revealed a bulging intervertebral L3-L4 disk that closely approximated to the right L3 nerve root. Epidural steroid injections (ESI) in May to July 2002 did not significantly improve his pain. On 15 May 2002 the Electrodiagnostic testing (electromyogram [EMG] and nerve conduction testing) was normal showing no electrodiagnostic evidence of lumbar radiculopathy or neuropathy. A repeat MRI on 17 May 2002 showed spine normal alignment and curvature, mild disk desiccation at L3-L4 and L4-L5, and mild annular bulging of L3-4 disc (essentially unchanged) with “no lumbar compressive disc disease.” Orthopedic follow up on 29 May 2002 noted there was not much benefit from ESI. On examination, the CI could flex reaching his fingers to mid-calf. Hyperextension was painful. Strength, reflexes and sensation were normal. Right leg raising produced pain. Neurosurgery evaluation on 18 July 2002 noted report of pain down the right leg three to four times per month but otherwise no weakness or paresthesias. On examination, strength and reflexes were normal. Surgery was not recommended. According to an orthopedic clinic treatment record entry on 9 December 2002, the CI experienced recurrent low back pain (LBP) when he bent over to pick up some bags in November 2002. There was no leg pain at that time. On examination there was tenderness. Back flexion was “OK” but with pain. Extension and right leg raising produced pain. Strength, sensation, and reflexes were normal. Follow up in the orthopedic clinic on 16 January 2003 recorded report of chronic LBP with radiation to the right knee and to the left buttock. Symptoms were worse with sitting. On examination, the back evidenced a normal curvature and the CI could flex reaching fingers to the mid-calf level. There was tenderness and pain with extension. Leg raising produced pain in the back. Strength was intact. The MEB narrative summary (NARSUM) 30 January 2003 cited the orthopedic examinations from 9 December 2002 and 16 January 2003 noted above. At the VA Compensation and Pension (C&P) examination on 20 July 2004, 15 months after separation, the CI reported constant back pain, Graded 5-8 (on a scale of 10) with stiffness. He reported pain after 30 minutes of standing and ability to walk 15-20 minutes without aching. The CI reported two episodes of bed rest for 3 days each without consulting a physician in the past year. On examination, gait and posture were normal. There was tenderness to palpation. After repetitive motion, “lumbar spine” flexion was 50 degrees extension 20 degrees, right and left lateral flexion 28 degrees, and right and left rotation 50 degrees with pain at the extremes of these movements. There was evidence of sciatic nerve irritation with leg raising but to 90 degrees bilaterally.


The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the LBP condition (L3-4 disc disease with sciatica) 10% coded 5295 (lumbosacral strain), under the VASRD guidelines in effect at the time. The VASRD guidelines for rating diseases and injuries of the spine were changed to the current guidelines effective 26 September 2003, approximately 5 months after the date of the CI’s separation. The VA adjudicated a 20% rating using the current VASRD guidelines coded 5242 (degenerative arthritis of spine) based on the C&P examination 15 months after separation. In accordance with IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation from service. The Board must correlate the above clinical data with the 2002 rating schedule (applicable diagnostic codes include: 5292 limitation of lumbar spine motion; 5293 intervertebral disc syndrome; and 5295 Lumbosacral strain). The Board considered the rating under the VASRD diagnostic code 5292 limitation of lumbar spine motion. The MEB NARSUM described range-of-motion (ROM) as good while the January 2003 orthopedic examination noted flexion with fingertips reaching mid-calf, a trunk flexion of approximately 70 degrees. The Board agreed that the service treatment records (STR) evidenced slight limitation of motion and supported the 10% under the VASRD diagnostic code 5292 in effect at the time. The Board noted the C&P examination ROM examination but that examination was 15 months after separation and therefore less reflective of the impairment at the time of separation than service records. The Board next considered whether a higher rating was warranted under the guidelines for intervertebral syndrome, code 5293. The CI had intervertebral disc disease with radicular symptoms but Board members concluded that using the guidelines under 5293, there were no incapacitating episodes documented in STR that warranted consideration under the VASRD criteria for rating that became effective prior to the CI’s separation. The Board also considered the rating under the code, 5295, lumbosacral strain. The Board members agreed, the evidence did not support the 40% rating under this code. There was no loss of lateral spine motion to support the 20% rating. The Board noted that posture was normal indicating normal spinal contour, and gait was normal. The Board concluded the 10% rating was appropriate for characteristic pain on motion noted on the orthopedics examination 3 months prior to separation. The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy. The CI had degenerative disc disease with radiating pain; however, examinations indicated normal strength, reflexes and gait. Electrodiagnostic testing was negative for evidence of radiculopathy. 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. 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) and VASRD §4.7 (Higher of two evaluations), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lumbar disc disease (L3-4) with right sciatica condition.

Right Shoulder Impingement Condition. The right hand dominant CI reported right shoulder pain for the preceding 2 weeks during an orthopedics appointment on 16 January 2003. There was no history of dislocation or specific injury. On examination of the right shoulder ROM was full but with pain greater than 90 degrees in all directions. Muscle strength was normal. Tests of impingement were positive and there was tenderness of the biceps tendon. Examination maneuvers for rotator cuff tears in the shoulder were negative. At the time of the 12 February 2003 MEB examination, on the medical history form, the question regarding shoulder problems was changed from yes to no (indicating that the CI never had and did not currently have the respective problem) and the remainder of the examination made no mention of a shoulder problem. At the C&P exam performed 15 months after separation, the CI reported no issues regarding the right shoulder impingement and a right shoulder condition was not claimed for VA compensation until 2009. The VA denied service-connection as there was no post separation documentation supporting the presence of a chronic right shoulder disability.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the right shoulder impingement condition 10% (coded 5299-5003). There was no limitation of motion supporting a minimum rating under 5201 (limitation of arm motion). There was no history of dislocation to warrant consideration under 5202 (other impairment of humerus), or impairment of the clavicle or scapula to warrant rating under 5203. However based on the MEB NARSUM examination there was evidence of VASRD §4.59 (Painful motion) supporting the 10% rating adjudicated by the PEB. 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 right shoulder impingement 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 lumbar L3-L4 disc disease with sciatica condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the right shoulder impingement 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
L3-L4 Disc Disease with Sciatica
5295 10%
Right Shoulder Impingement
 5299-5003 10%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120612, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         xx
         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 20 Aug 13

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandum, 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:
- former USN
- former USMC
- former USMC
- former USMC
- former USMC
- former USN
- former USMC
- former USN



                                                      xx
                                                     Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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