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AF | PDBR | CY2012 | PD2012 01650
Original file (PD2012 01650.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXX        CASE: PD1201650        
BRANCH OF SERVICE: MARINE CORPS          BOARD DATE: 20130424
SEPARATION DATE: 20011130                


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Duty Cpl/E-4 (1833, Assault Amphibious Vehicle Crewman) medically separated for a low back condition. The CI experienced idiopathic low back pain (LBP) in 2000. His pain worsened and he was diagnosed with a herniated disc in his lower back. The CI underwent a lumbar microdiscectomy to correct this problem. Despite post-surgical healing and follow on conservative treatment, the CI’s low back condition could not be adequately rehabilitated 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 low back condition, characterized as “status post (S/P) right L4/S1 microdiscectomy” was forwarded to the Physical Evaluation Board (PEB). No other conditions were submitted by the MEB. The PEB adjudicated “status post right L4/S1 microdiscectomy” as unfitting, rated 20% with likely application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with 20% disability rating


CI CONTENTION: “Because my original rating from the DoD was only for “status post right L4/ S1 microdisectomy (V549) at 20%. This is in my opinion unacceptable. My back is in much worse condition than a 20% rating and it doesn’t even include. My Right lower extremity radiculopathy that the VA also rated at 20%. The reason for my surgery will in the service was to releave the severe impingement on my SI nerve root. This impingement is still causing me problems as of today. It still has a burning feeling on a everyday basis and. Really bad musclular atrophy.” The CI attached a final statement to his application in block 15 to wit: “I strongly feel I should have been giving a higher rating than 20% from the DoD and should have been retired.”


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 low back condition is addressed below. The requested right lower extremity radicular condition was not identified by the PEB, and thus is 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 20011018
 VA - (1 Mos. Pre -Separation)
Condition
 Code Rating Condition Code Rating Exam
S/P Right L4/S1 Microdiscectomy
 5293 20% Residuals, Lumbar Spine Strain with Diffuse Spondylosis and Degenerative Disc Space Disease Localized L4/L5 and L5/S1 and S/P Right L4-S1 Microdiscectomy 5003-5292 40% 20011102
No Additional MEB/PEB Entries
 Other x 6 20011102
Combined: 20%
 Combined: 40%
Derived from VA Rating Decision (VA RD ) dated 200 21213 .
ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impact that his service-incurred condition has had on his current earning ability and quality of life. It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Veterans Administration. The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Post-Surgery Low Back Condition. The CI‘s history revealed that he developed LBP after a non-traumatic injury sustained during boot camp in September 2000. He was treated conservatively with unsustained improvement. The CI was evaluated and treated by chiropractor and given traction and other rehabilitative modalities without much benefit. On a 4 April 2001 clinic visit examination, 7 months prior to separation, recorded a positive straight leg raise (SLR) test, lumbar flexion of 70 degrees with pain and muscle spasm. Gait was not recorded. On 22 April 2001, the CI presented to clinic with report of back pain radiating to right hip and knee with numbness. On examination, SLR with minimal pain and no radiation was recorded and neurological exam was normal. The CI had consultation with pain specialist and with neurosurgery. Magnetic resonance imaging (MRI) 16 May 2001, demonstrated disc protrusion and displacement of thecal sac with severe impingement on the right S1 nerve root. Additionally, there was an annular tear of L3-4 causing canal narrowing and mild to moderate canal narrowing/lateral recess narrowing at L4-5. Neurosurgery examination, 22 May 2001 recorded lumbar flexion of 60 degrees, and noted absence of muscle spasms. SLR was positive on the right, and there was decreased sensation in right lateral foot with weakness in right ankle. Gait was not recorded. The CI underwent surgery (14 June 2001) without complication and was discharged a day later. On follow up examination, 27 July 2001, 4 months prior to separation, the CI indicated overall improvement but had some back pain and some right leg radicular pain. He was not taking any medication. Physical examination revealed flexion of 60, extension of 10, lateral flexion of 30 degrees bilaterally, absence of muscle spasms and mild tenderness. Motor function and sensation was improved. Gait was not recorded. At the MEB NARSUM evaluation, 23 August 2001, 3 months prior to separation, the CI reported constant back pain of 3 out of 10 intensity with occasional sharp pain going down his right leg associated with certain motions. On examination, lumbar flexion was recorded at 60 degrees, extension of 10, and bilateral rotation of 60 degrees. SLR was positive on the right side and tenderness noted over L4-5 region. Sensory exam was normal and motor function was 4/5 in lower extremities. Gait was not recorded. At the VA Compensation and Pension (C&P) evaluation on 2 November 2001, approximately 4 weeks prior to separation, the CI reported sustained radicular symptoms, improved in frequency and lessened in pain intensity. On physical examination, gait was normal he was able to heel toe walk without difficulty, as well as hop on alternate legs and perform repetitive squatting. Motor function was within normal limits and reflexes were decreased on the right compared to the left. The ROM of lumbar spine was limited due to pain. Flexion was 35 degrees, extension of 10; spasms were noted during ROM and pain was elicited on SLR bilaterally.

The Board directs attention to its rating recommendation based on the above evidence. Both the PEB and the VA rated the condition at 20% using the 5293 code (intervertebral disc syndrome). The VA later increased the rating to 40% retroactively in response to appeal, coded 5292, using the same C&P evaluation. The Board must correlate the above clinical data with the 2001 rating schedule which was in effect at the time of separation (applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293, (Intervertebral disc syndrome), and 5295 (lumbosacral strain). Under the 5293 code at the time of separation, a 20% rating required recurring attacks involving peripheral nerve impairment. The Board unanimously agreed the records demonstrated the condition met the 20% rating. A higher rating of 40% requires severe recurring attacks with intermittent relief which was not supported by the evidence at hand. Records indicated the CI reported less frequent and severe attacks after his surgery and no medication use for pain control. Although there were spasms noted during the MEB NARSUM examination. A 40% rating under the 5295 code requires marked limitation in motion, or change in spinal contour as result of spasm. The record in evidence does not support a higher rating under this code. The Board next considered the 5292 code, limitation of motion and unanimously agreed lumbar ROM recorded at the C&P was consistent with a 20% moderate rating. The Board concluded the preponderance of the evidence does not support a higher rating under the 5292 code. There were no other applicable VARSD codes to rate the condition. 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.


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
S/P L4-S1 Microdiscectomy
 5293 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120903, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




                          
         XXX
         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 19 Jun 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:

- x former USMC
- x former USMC
- x former USMC
- x former USN
- x former USMC
- x former USMC
- x former USN
- x former USMC



                                                      xxx
                                                     Assistant General Counsel
                                                      (Manpower & Reserve Affairs)



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