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AF | PDBR | CY2012 | PD2012 01518
Original file (PD2012 01518.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xx        BRANCH OF SERVICE: NAVY
CASE NUMBER: PD1201518   SEPARATION DATE: 20021115
BOARD DATE: 20130409


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty AC2/E-5 (6902/Air Traffic Controller), medically separated for multilevel degenerative disk disease (DDD), lumbar and herniated nucleus pulposus (HNP), C5-C6, left. The CI received injuries during an automobile accident that occurred in 1997 while on active duty. He sustained similar injuries in subsequent motor accidents in 1998 and 2000. The multilevel DDD, lumbar and HNP, C5-C6, left conditions could not be adequately rehabilitated and the CI did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was placed on limited duty and referred for a Medical Evaluation Board (MEB). The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the multilevel DDD, lumbar and HNP, C5-C6, left conditions as unfitting, rated 10% each. The CI made no appeals and he was medically separated with a combined 20% disability rating.


CI CONTENTION: “The VA Rating Decision of April 1, 2003 awarded 20 percent for Cervical Strain with Degenerative Changes C5-6 and 10 percent for Lumbar Strain with Degenerative Disc Disease (30 percent overall). This decision was based on the VA Examination conducted October 21, 2010, while I was still on Active Duty. Neither DoD nor the VA considered my right leg radiculopathy, which was prevalent while on active duty (STRs), and has continued to worsen over the years. I was unable to find employment in my field of expertise (Air Traffic Control) due to back, neck, and leg pain and associated convalescence/prescribed medication. To this day, I have difficulty even driving due to my neck and limited motion. Both my neck and back conditions have continued to deteriorate since my release from active duty (confirmed by x-ray and MRI with VAMC San Diego), and the VA increased my service connection in 2010 (Rating Decision attached), to include 10 percent for my left and right leg radiculopathy (secondary to my back condition) and 20 percent for both my left and right arm radiculopathy (secondary to my neck condition). My back condition was increased to 40 percent, and my neck was continued at 20 percent. These conditions (back/neck and secondary disabilities) have greatly altered my life. I have put on over 40 lbs. since discharge as I am unable to exercise properly, and I continually miss work due to flare ups and pain to the point where I have carried a very low sick leave balance for several years, and have often had to use my annual leave in lieu of my sick leave. If these conditions continue to progress, I may be forced to stop working altogether. As these conditions were evaluated at an overall 30 percent by the VA while I was on active duty, and have since increased in severity, I believe the DoD decision should be reconsidered. Respectfully, Anthony Morabito.”

“While on active duty, my tour was extended due to the medical board, and my quality of life took a substantial hit. By the time the VA examination came around, I down-played the severity of my conditions to avoid further delay in my discharge. The exam indicates that I denied flare ups, but they are continuously shown by my STRs even within a month of the exam. I did not appeal the DoD decision, nor did I appeal the VA decision of 2003, even though my right leg had substantial pain at the time. I only filed a claim for increased compensation with the VA in 2009, because my back, neck, legs, and arms had become a major factor in my daily life, and I needed full VA health coverage to get much needed treatment. My conditions have worsened even since 2010. I am now having bladder problems and am dealing with major digestive complications, most likely related to the medications and nerve impingement in my spine. Until I received your letter, I was not aware that a DoD review was even possible, and the main reason I am submitting this application is in hopes of receiving TriCare health coverage. I rcvd a settlement from DoD upon discharge, which has since been recouped by the VA. I appreciate your consideration in this matter.
Sincerely and respectfully, Anthony P Morabito II”


SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The Service ratings for unfitting conditions will be reviewed in all cases. The unfitting conditions of multilevel degenerative disk disease, lumbar spine and herniated nucleus pulposus, C5-C6, left are addressed below. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration the Board for Correction of Naval Records.


RATING COMPARISON:

Service IPEB – Dated 20021028
 VA (1 Mos. Pre -Separation) – All Effective Date 20021116
Condition
 Code Rating Condition Code Rating Exam
Multilevel Degenerative Disk Disease, Lumbar Spine
 5293 10% Lumbar Strain with Degenerative Disc Disease 5010-5292 10%* STR
20021021
Herniated Nucleus Pulposus, C5-C6, Left
 5299-5293 10% Cervical Strain With Degenerative Changes, C5-C6 5010-5290 20%** STR
20021021
↓No Additional MEB/PEB Entries↓
 0% X 2 / Not Service-Connected x 2
Combined: 20%
 Combined: 30%
* Effective 20090903 Increased to 40% and radiculopathy of right lower extremity and sciatic neuropathy of left lower extremity added at 10% each
** Effective 20090903 right and left upper extremity neuropathy musculocutaneous nerve added at 20% each.


ANALYSIS SUMMARY: The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of Disability Evaluation System (DES) fitness determinations and rating decisions for disability at the time of separation. The Board utilizes service and VA evidence proximal to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-month interval for special consideration of post-separation evidence. Post-separation evidence is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

The 2002 Veterans Affairs Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of separation, were modified on
23 September 2002 to add incapacitating episodes 5293 Intervertebral disc syndrome, and then changed to the current §4.71a rating standards on 26 September 2003. The 2002 standards for rating based on range-of-motion (ROM) impairment were subject to the rater’s opinion regarding degree of severity, whereas the 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 general rating formula for the spine. 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.

Multilevel Degenerative Disk Disease, Lumbar Spine Condition. The goniometric ROM evaluations in evidence, which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
MEB ~4 Mo. Pre -Sep
 VA C&P ~ 1 Mo. P re -Sep
Flexion (90⁰ Normal)
Not measured
 70 ⁰
Ext (0-30)
30 ⁰
R Lat Flex (0-30)
30 ⁰
L Lat Flex 0-30)
30 ⁰
R Rotation (0-30)
30 ⁰
L Rotation (0-30)
30 ⁰
Combined (240⁰)
220 ⁰
Comment
 Tender mid- L-spine; + righ t SLR at 45, normal motor strength and reflexes ; no atrophy; no sensory loss No change in ROM with repetitive motion; no postural abnormalities; musculature is normal; 5/5 strength throughout; normal pinprick, touch, and position; reflexes 2+ and symmetric
§4.71a Rating
5293
10%
10%
5292
10% with Painful motion
 10%
invalid font number 31502
In 1997, the CI sustained injuries to his back and neck in an automobile accident. He incurred similar re-injuries in motor vehicle accidents in 1998 and in 2000. The CI’s low back pain (LBP) with exacerbations of lower extremity radiation were managed under the care of the Pain Management, Orthopedic , Sports Medicine and Physical Therapy services and included oral and intervertebral steroids, nonsteroidal anti-inflammatory drugs ( NSAID s ) , narcotic analgesics , and physical therap y . Multiple visits document decreased ROM or painful motion; however, no abnormal neurologic findings other than a positive straight leg raise (SLR) are documented. At the MEB narrative summary (NARSUM) examination, approximately 4 months prior to separation, the CI reported lower back pain with dysesthesia ( painful abnormal sensation) symptoms in the right lower extremity. The examiner noted these complaints prevented him from performing his duties as an air traffic controller, especially sitting or standing and monitoring equipment for long periods . The MEB physical exam findings are noted in the chart above. No formal goniometric ROM evaluations were documented. Magnetic resonance imaging ( MRI ) in October 2001 revealed multilevel DDD at levels L2- 3 , L4-5, and L5-S1. Left neural foramen impingement without nerve root compression was noted at L-23 and L4-5. A VA Compensation and Pension (C&P) exam approximately a month prior to separation , documented daily pain, stiffness, fatigability, and lack of endurance. The CI was taking NSAIDs. He denied flare-ups and use of crutches, braces, or a cane. Lumbar spine X -rays at this examination revealed straightening of the normal curvature of the lumbar spine with vertebral body heights , intervertebral disc spaces , and posterior elements maintained. The diagnosis was low back strain.

Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation. The pain component of a radiculopathy is subsumed under the current VASRD general spine rating as specified in §4.71a and is included in the 2002 VASRD 5293 intervertebral disc syndrome rating criteria. Without any evidence of sensory or motor impairment, the CI’s radiculopathy cannot be linked to any significant physical impairment. Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment at the time of separation from service.

The Board directs attention to its rating recommendation based on the above evidence. The PEB, IAW the interim spine rules, rated the multilevel DDD, lumbar spine condition as code 5293 intervertebral disc syndrome, rated at 10% for mild intervertebral disc syndrome. The VA used code 5010 arthritis due to trauma, substantiated by X-ray findings with code 5292 at 10% for slight limitation of lumbar spine motion. The record did not contain sufficient information regarding frequency of episodes of intervertebral disc syndrome to support a 20% rating using VASRD 5293. No examinations in the record documented ROM limitations greater than the 70 degrees of flexion noted on the C&P examination. No appropriate rating scheme provided a rating greater than 10% and both the MEB NARSUM and C&P examinations support a 10% disability 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 for the multilevel DDD, lumbar spine condition.

Herniated Nucleus Pulposus, C5-C6, Left Condition. The goniometric ROM evaluations in evidence, which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Cervical ROM
 MEB ~4 Mo . Pre-Sep VA C&P ~ 1 Mo. P re -Sep
Flex (45⁰ Normal)
 Not Measured 20 ⁰
Ext (0-45)
 30 ⁰
R Lat Flex (0-45)
 20 ⁰
L Lat Flex (0-45)
 20 ⁰
R Rotation (0-80)
 30 ⁰
L Rotation (0-80)
 30 ⁰
COMBINED (340⁰)
 150 ⁰
Comment
Te nder at lower C -spine; compression increases left neck pain; normal motor strength and reflexes ; no atrophy; no sensory loss
 No change in ROM with repetitive motion; no postural abnormalities; musculature is normal; 5/5 strength throughout; normal pinprick, touch, and position; reflexes 2+ and symmetric
§4.71a Rating
5293
 10%
10%
5290
 10% with Painful motion
20%

The CI’s neck pain with radiation into the left upper extremity w as managed under the care of Orthopedic, Sports Medicine , and Physical Therapy services and included NSAIDs, narcotic analgesics, and physical therapy. Multiple visits document decreased ROM or painful motion; however, no abnormal neurologic findings were documented. At the MEB NARSUM examination, approximately 4 months prior to separation, the CI reported neck pain radiating into his left upper extremity with intermittent dysesthesia (painful abnormal sensation) extending to the level of the left hand. The examiner noted these complaints prevented him from performing his duties as an air traffic controller, especially sitting or standing and monitoring equipment for long periods . The physical exam ination findings are noted in the chart above. An MRI in July 2002 demonstrated a broad-based osteophyte complex eccentric to the left at C5-C6 disk herniation that contacted the cord and crowded the left lateral recess. A C&P exam approximately a month prior to separation, documented daily cervical spine pain, stiffness, fatigability, and lack of endurance. He reported difficulty turning his neck that made driving difficult but denied flare-ups. He wore a cervical collar frequently. He reported taking NSAIDs and Flexeril. The physical examination findings, including ROM, are in the chart above. Cervical spine X -rays at this examination revealed normal cervical spine curvature with vertebral body heights and intervertebral disc spaces maintained . The neural foramina appeared grossly unremarkable. The diagnosis was cervical strain.
Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation. The pain component of a radiculopathy is subsumed under the current VASRD general spine rating as specified in §4.71a and is included in the 2002 VASRD 5293 Intervertebral Disc syndrome rating criteria. Without any evidence of sensory or motor impairment, the CI’s radiculopathy cannot be linked to any significant physical impairment. Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment at the time of separation f ro m service.

The Board directs attention to its rating recommendation based on the above evidence. The PEB, IAW the interim spine rules, rated the HNP , C 5- C 6, left condition analogous to code 5293 I ntervertebral disc syndrome at 10% for mild intervertebral disc syndrome. The VA used code 5010 a rthritis due to t rauma, substantiated by X -ray findings with 529 0 s pine, limitation of motion of, cervical and rated at 2 0% for moderate limitation of cervical spine motion. The record did not contain sufficient information regarding frequency of episodes of intervertebral disc syndrome to support a 20% rating using VASRD 5293. The C&P examination was completed closer to, but still prior to, the date of separation and is therefore afforded a greater probative value by the Board. The C&P examination is also more complete in its description of the limitation of motion of the cervical spine. The current VASRD also supports a 20% disability rating based on cervical spine flexion greater than 15 degrees but not greater than 30 degrees. After due deliberation, considering all of the evide nce and mindful of VASRD §4.3 R easonable doubt and §4.7 h igher of two evaluations , the Board rec ommends a disability rating of 20 % for the HNP , C5-C6, Left 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 multilevel DDD, lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the HNP, C5-C6, Left condition, the Board unanimously recommends a disability rating of 20%, coded 5290 IAW VASRD §4.71a. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Multilevel Degenerative Disk Disease, Lumbar Spine
5293 10%
Herniated Nucleus Pulposus, C5-C6, Left
 5290 20%
COMBINED
 30%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120720, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




         xx
         Director of Operations
         Physical Disability Board of Review


 MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
                  COMMANDER, NAVY PERSONNEL COMMAND
                                         
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 28 May 13 ICO
(c) PDBR ltr dtd 22 May 13 ICO
(d) PDBR ltr dtd 22 May 13 ICO
(e) PDBR ltr dtd 17 May 13 ICO
(f) PDBR ltr dtd 10 May 13 ICO
(g) PDBR ltr dtd 17 May 13 ICO

1. Pursuant to reference (a), I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (g).
         
2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a. former USN : Disability separation with a final disability rating of 20% (increased from 10%) effective 1 March 2003.

b. former USN : Disability separation with a final disability rating of 20% (increased from 10%) effective 15 September 2002.

c. former USMC : Disability retirement with a final disability rating of 40% (increased from 20%) and placement on the Permanent Disability Retired List effective 14 January 2004.

d. former USN : Disability retirement with a final disability rating of 30% (increased from 20%) and placement on the Permanent Disability Retired List effective 15 November 2002.

e. former USMC : Disability retirement with a final disability rating of 30% (increased from 20%) and placement on the Permanent Disability Retired List effective 31 August 2005.

f. former USMC : Disability separation with a final disability rating of 20% (increased from 10%) effective 15 November 2001.

3. Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.



                                                      xx
                                                      Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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