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AF | PDBR | CY2012 | PD2012 01567
Original file (PD2012 01567.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201567
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20130425
SEPARATION DATE: 20040115


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E-6 (1812/Tank Crewman) medically separated for a low back condition. The CI had a 10 year history of back problems which were treated with physical therapy (PT), medications (narcotic pain medicine and non-steroidal anti-inflammatories [NSAIDs]), and epidural steroid injections (ESI). By 2001, the CI had been diagnosed with herniated discs and left leg pain; in 2002, he underwent back surgery. He met a Medical Evaluation Board (MEB) and was returned to duty. In 2003, the complaints of pain recurred and duty was limited. Because the CI could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards, he was referred for a second MEB. The back condition, characterized as “lumbar spondylosis” was forwarded to the Physical Evaluation Board (PEB). No other conditions were submitted by the MEB. The PEB adjudicated “lumbar spondylosis at L5-S1” as unfitting and rated 20%. The CI made no appeals and was medically separated.


CI CONTENTION: “Quality of life is greatly diminished. Constant pain that ranges from moderate to severe thru lower back, leg, foot and toes. Mobility is heavily effected by pain. Unable to walk without a limp and have been forced at times to use a cane to walk. Unable to participate in any of the activities that you had before injury/illness (e.g. Sports, Running). Weight issues associated with inability to exercise due to pain has caused other illnesses. (e.g. Sleep Apnea) Inability to perform basic physical functions of jobs that Military experience and skills would have qualified me for. Interference with work due to time off for doctors appointments and recovery from procedures and physical therapy. Pain has caused issues with job performance as well as over all quality of life. Inability to sit or stand for long periods of time without moderate pain. Along with physical limitations such as not being able to lift heavy objects. FMLA for 2 weeks due to pain as recent as last year. Need for future surgery (per VA Neurosurgeon) to repair disk degeneration that had begun before discharge. Pain and deterioration of disk only getting worse without prolonged relief from the VA Pain Clinic. Loss of feeling in leg, foot, and toes due to surgery. Loss of mobility. Personal expenditure of medical expense and issues with civilian health insurance due to pre-existing condition.”


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 back condition and radicular type pain are addressed below; 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 (BCNR).


RATING COMPARISON :

Service IPEB – Dated 20031105
 VA - (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Lumbar Spondylosis at L5-S1 5295 20% Lumbar Spondylosis… 5239-5241 20% 20040320
No Additional MEB/PEB Entries
 Radiculopathy with Paresthesias of Left S-1 Root 8520 40% 20040320
Other x 3 20040320
Rating: 20%
 Combined: 50%
Derived from VA Rating Decision (VA RD ) dated 20040825 .


ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB. However, the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. 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, compared to Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.

Low Back Condition: The CI had a long history of low back pain (LBP) since 1994 without a specific method of injury. He was treated with NSAIDs, narcotics, ESI, nerve blocks, a back brace, and finally by surgery. His care was managed by PT, orthopedics, pain management, and neurosurgery. He had an abnormal magnetic resonance imaging (MRI) indicating an L5-S1 and L4-L5 disk herniation, but normal nerve conduction velocity/electromyographic (NCV/EMG) studies. A discogram showed concordant pain at L4-5 and L5-S1 consistent with pain from the disc herniation noted on the MRI. On 10 September 2002, the CI underwent L5 and partial S1 laminectomies, decompression, and posterior L5-S1 fusion. The CI had initial relief, but then the pain restarted with activity and he was unable to perform his military duties. Repeat NCV/EMG studies showed no evidence of radiculopathy on 8 May 2003, 8 months after surgery. An epidurogram done performed on 16 October 2003 showed perineural adhesions at L4-L5. The CI’s commander stated in the non-medical assessment that the CI was performing administrative duties because he was unable to stand, sit, or walk for periods of more than 30 minutes, unable to get on and off a tank, unable to drive and maneuver a section of tanks in a combat scenario, and unable to operate in or around his MOS. At the narrative summary, dictated on 14 August 2003, 5 months prior to separation, the CI described improvement of pain after surgery, but that it started again in January 2003. The pain was of his lower back and left leg. Physical examination showed a normal gait, normal strength, symmetric ankle reflexes which were slightly decreased (+1) but improved from prior to surgery, tenderness of the left lumbar region of back, and positive left straight leg raising (SLR) pain. No comment was made on sensation which had intermittently been consistent with an L1 radiculopathy. X-rays showed a good surgical repair. At a PT consultation, on 23 December 2003, a month prior to separation, the CI was unable to sit or stand during the interview for more than five minutes, walked with a limp, had difficulty toe walking, and tandem walking, had ranges of motion reduced by 25% (calculated in chart below) with pain, positive left SLR test and no mention of muscle spasm. He was taught lumbar stabilization exercises. At the VA Compensation and Pension (C&P) exam performed on 20 March 2004, 2 months after separation, the CI reported no specific inciting incident to his back pain. Pain was described a dull and achy and intermittently radiating down the posterior leg, thigh, lateral leg, and calf, with paresthesias of the left lateral foot and sole. These increased with activity from 4/10 to 8/10 with spasms and tenderness, exacerbated by twisting or rotating movements once or twice daily, lasting 30 minutes and resolving with rest. He was ambulating with a cane due to hip pain on the day of examination. He was employed in a management role. Physical examination revealed that when walking without the cane, he had no problems with weight bearing, and had a normal swing phase and weight bearing phase of his gait, but favored the left leg, positive left SLR test. There was also mild paraspinal spasm and tenderness left worse than right, absent ankle jerk reflexes, lateral and dorsal left foot sensory decrease to light touch and pin prick, with normal proprioception, and normal strength. There were two goniometric range-of-motion (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
(Degrees)
 PT ~ 1 Mo. Pre-Sep VA C&P ~ 2 Mo.
Post -Sep
Flexion (90 Normal)
 70 70
Combined (240)
 195 195
Comment
 Limping gait; + Left SLR; No mention of spasm. “AROM limited by 25%” Gait slightly antalgic due to hip pain; DTR ankles absent; Tenderness and spasm L>R; + L eft SLR.
§4.71a Rating
 10% 1 0%

The Board directed attention to its rating recommendation based on the above evidence. The PEB adjudicated a 20% rating coded 5295, lumbar strain, under the older VASRD guidelines. The VA adjudicated a 20% rating for an abnormal gait secondary to spasm coded 5239 and 5241, spondylolisthesis and lumbar fusion, and 40% for a radiculopathy at a moderately severe level coded 8520, paralysis of the sciatic nerve. The Board noted that the 2002 VASRD standards for the spine, which were in effect prior to 26 September 2003, were changed to the current §4.71a rating standards effective on 26 September 2003. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation, therefore the Board considered the rating recommendation based on application of the current §4.71a rating guidelines which were current at the time of separation. The Board considered the C&P goniometric measurements more probative than the PT examination as actual measurements were recorded, but noted that this made no difference in the rating assigned from limitation in ROM. The Board considered VASRD older code 5295 (lumbosacral strain) as analogous to the current code 5237 (lumbosacral or cervical strain) which is rated under the general rating formula for diseases and injuries of the spine. The Board found no evidence of forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine for an adjudication greater than the 20% rating adjudicated by the PEB. The Board noted that the back would actually rate at 10% using the 5237 code, but the Board’s recommendations may not produce a lower combined rating than that of the PEB. The Board considered VASRD diagnostic codes 5239 (spondylolisthesis or segmental instability) and 5241 (spinal fusion) used by the VA for 20% adjudication. Both codes are rated under the same general rating formula. The Board found no evidence for adjudication in the CI’s favor. The Board also considered code 5243 (intervertebral disk syndrome). The Board found no incapacitating episodes of at least 4 weeks during the past 12 months in the clinical record for adjudication in the CI’s favor. The Board then considered peripheral nerve impairment due to radiculopathy such as §4.124a codes for sciatic nerve 8520 (paralysis), 8620 (neuritis) or 8720 (neuralgia) used by the VA for a 40% rating as an alternate or additional path for a higher rating. The CI had intervertebral disc disease with radiating radicular type pain. While the CI may have suffered additional pain from the sciatic nerve involvement, this was subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” The sensory loss was intermittent and radiculopathy was not demonstrated on the NCV/EMG testing. Motor strength testing was normal, and there was no muscle atrophy on all examinations; accordingly, the level of disability due to sensory was not a separately unfitting condition and even if it were, the impairment would not rise above mild which would rate at 10% providing no advantage to the CI using an alternate code. The Board considered whether an additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for the associated sciatic radiculopathy at separation. Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases. The pain component of the radiculopathy was subsumed under the general spine rating as specified in §4.71a. The sensory component and diminished or absent ankle reflexes in this case had no functional implications, and no motor weakness was in evidence impacting the performance of military duties. Again, there was thus no evidence of a separately ratable functional impairment (with fitness implications) from the residual radicular type radiating pain; and, the Board could not support a recommendation for an additional disability rating 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 LBP condition and that there was no advantage to an administrative correction to the current VASRD code since it did not present a rating increase in the CI’s favor.


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 low 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
Low Back Pain Condition 5295 20%
RATING
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120828, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



        
         Director of Operations
         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 12 Jun 13

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



                                                     
                                            Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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