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AF | PDBR | CY2012 | PD2012 01736
Original file (PD2012 01736.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXX        BRANCH OF SERVICE: MARINE CORPS
CASE NUMBER: PD1201736   SEPARATION DATE: 20011001
BOARD DATE: 20130426


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPL/E-4 (3432/Finance) medically separated for a lumbar spine condition. He began developing lower extremity symptoms with exertion in 2000, which was subsequently diagnosed as neurogenic claudication (nerve pain with protracted use) due to lumbar spinal stenosis (congenital). He also reported low back and bilateral knee/shin pain. He underwent an aggressive trial of conservative measures (encompassing two 6-month periods of limited duty) without success. The condition(s) could not be adequately rehabilitated to satisfy the physical fitness standards of the Marine Corps; and, he was referred for a Medical Evaluation Board (MEB). The MEB forwarded “neurogenic claudication due to lumbar spinal stenosis,” “bilateral shin splints,” and “bilateral anterior knee pain” to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted. The PEB adjudicated the neurogenic claudication condition as unfitting, rated 20% (specified as a pre-existing condition with 0% deduction), applying criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The knee and tibial conditions were determined to be not unfitting (Category III). The CI made no appeals, and was medically separated with a 20% disability rating.


CI CONTENTION: The application states, “My back is in pain still 10 years later. There is still pain in my knees & shins. I’ve complained since ’97.” A follow-up letter (dated 19 March 2013) and updated medical records were later forwarded; and, were reviewed and considered by the members in these proceedings. The letter states in part, “I was never properly rated for my knees, shins, and back. When I signed my paperwork, all those years ago, I did not know or understand the extent of the disability itself and I did not know/understand how my knees and back would be effected all these years later. I signed my paperwork in haste. I was young and uninformed.” The letter continues with elaboration of the current disabilities associated with the above conditions, and a plea that “all my ailments are looked at, and properly rated.”


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 neurogenic claudication/lumbar spine condition is addressed below. The bilateral knee and shin splint conditions, as requested and as PEB adjudicated, are also within the DoDI 6040.44 defined purview of the Board; and are likewise addressed. 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 PEB – Dated 20010814
 VA (9 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Neurogenic Claudication due to Lumbar Spinal Stenosis
 7114 20% Lumbar Stenosis with Chronic Low Back Pain 5299-5294 10% 20020801
Bilateral Shin Splints
 Not Unfitting S/P Shin Splints Right Leg 5299-5262 0% 20020801
S/P Shin Splints Left Leg 5299-5262 0% 20020801
Bilateral Anterior Knee Pain
Not Unfitting Right Knee Condition 7819 NSC 20020801
Left Knee Condition 5299-5291 NSC 20020801
No Additional MEB/PEB Entries
 Additional: 0% X 1 / Not Service Connected (NSC) X2 20020801
Combined: 20%
 Combined: 10%
Derived from VA Rating Decision (VARD) dated 200 30521 ( most proximate to date of separation [DOS]).


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continue to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Neurogenic Claudication due to Lumbar Spinal Stenosis: The earliest entry in the service treatment record (STR) likely related to this condition was in October 1996, which documented a complaint of right leg pain precipitated by running (initially diagnosed as fascial strain). There are no further details present in the STR, but an electro diagnostic study of the right lower extremity was performed in June 2000 with normal results. Lumbar spine imaging of October 2000 diagnosed multilevel spondyloarthropathy (compromised nerve canals) compounded by developmental central stenosis (narrow spinal canal), along with mild disc disease at L4/5 and L5/S1. Evaluation for vascular compromise was negative; and, a neurology consultant diagnosed neurogenic claudication (non-surgical) and recommended a MEB. There are numerous STR entries documenting exertional bilateral leg pain and sensory symptoms as the dominant complaint, and multiple normal neurological exams. Physical therapy (PT) notes mention associated low back pain (LBP), but no significant limitations of range-of-motion (ROM). The narrative summary (NARSUM) documented “symptoms [which] consisted of a pins and needles, and somewhat painful sensation, after running approximately 3 miles.” It also noted LBP, a “nonradiating tight sensation,” which was worse on the right and aggravated by prolonged sitting; and, “otherwise was asymptomatic if he is not running.” The NARSUM stated specifically that the PEB referral was premised on “the patient’s inability to run for significant distances.” The NARSUM physical exam noted a normal gait and normal motor, sensory, coordination, and reflex findings. The VA Compensation and Pension (C&P) evaluation (9 months post-separation) did not make the distinction of neurogenic leg pain from that associated with “shin pain.” The examiner did not make a diagnosis of neurogenic pain apart from “lumbar spine stenosis and chronic lower back pain.” For the leg pain itself, it was stated that the CI was on no routine treatment and that it was precipitated by driving for longer than an hour. For the back pain, it was stated that it was associated with “flare-ups, usually if he walks for an hour or so or is sitting for prolonged periods.” The examiner also documented civilian employment as a payroll administrator. The VA physical exam documented a normal gait, normal physical findings for the back and extremities, and normal neurologic testing. The ROM measurements for the lumbar spine were flexion 90 degrees (normal) and combined ROM of 240 degrees (normal).

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s 20% rating under VASRD diagnostic code 7114 for peripheral vascular disease of the legs is the best VASRD clinical fit for the neurogenic claudication (different etiology, but similar symptoms and disability), although an analogous designation would have been more precisely correct. This would not subsume any disability directly attendant to the lumbar spine etiology of the condition. The next higher rating (40%) under 7114 would require symptom onset within 25 -100 yards of walking; clearly not supported by the evidence. The VA ignored the neurologic component of the lumbar stenosis and coded directly for spine disability. The VASRD §4.71a spine rating codes and criteria in effect at separation were significantly revised in 2003, but IAW DoDI 6040.44 the Board must premise its recommendations on the VASRD in effect. The VA’s 10% rating was under the previous analogous code 5294 (sacro-iliac injury and weakness) which in turn defaults to the older criteria of 5295 (lumbosacral strain). The evidence does not support the next higher rating (20%) under that code, which would require “muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position.” The only alternate spine codes available at separation were 5292 for limitation of motion, clearly not advantageous with the normal ROM; and, 5293 (intervertebral disc syndrome), for which there was no evidence of ‘recurring attacks’ which would achieve a rating higher than 10%. It is obvious that the PEB’s coding approach yielded the highest supportable rating, under the assumption that separate ratings for the spine disability and neurogenic extremity pain are not justified. The Board carefully considered the latter option. In order to recommend a rating for the separate condition, however, the Board must be satisfied that the separately rated condition is reasonably justified as separately unfitting. As noted in the evidence, the STR and evaluation focused on the neurogenic pain much more than on the associated back pain. The NARSUM also was quite specific that it was the exertional limitations imposed by the neurogenic claudication that mandated PEB referral. Members agreed that there were no clear performance based criteria in evidence which would adequately justify a conclusion that the intrinsic lumbar limitations could be reasonably justified as separately unfitting. The opinion was also expressed in deliberations that it was only the exertional extremity symptoms that could truly be considered to be permanently service aggravated; and, that the congenital lumbar spinal stenosis was not intrinsically aggravated; thus ineligible for rating regardless of fitness considerations. 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 condition of neurogenic claudication due to lumbar spinal stenosis.

Contended Bilateral Knee and Shin Splint Conditions. The CI’s separate knee pathology is difficult to clarify from the evidence. A complaint of bilateral knee pain accompanied entries associated with the shin splints, but no specific knee diagnosis is to be found in the STR or early VA entries. That is basically the reason that the VA denied service-connection for the knee conditions, a position that was upheld on appeal. There also was no ROM impairment or other ratable physical findings in evidence in the service or VA files (probative to date of separation). The earliest concrete evidence specific to the knees, as provided by the CI, dates to 2011. A diagnosis of shin splints (periostitis without cortical fractures) was made by bone scan in October 2000. The NARSUM reported only “a sense of tightness in his shins with running.” The post-separation C&P examiner’s comments are presented in the preceding discussion of the neurogenic claudication. The Board’s main charge with respect to these conditions is an assessment of the fairness of the PEB’s determinations that they were not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. Neither condition was implicated in the commander’s non-medical assessment (NMA); nor, were there any clear performance based criteria in evidence that either condition significantly interfered with satisfactory duty performance. With regards to the shin splints, it was agreed that the attendant symptoms could not be differentiated from those of the neurogenic claudication without violation of VASRD §4.14 (avoidance of pyramiding); and, further noted that the VA did not find compensable ratings even without this conflict. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended knee and shin splint conditions; thus, no additional disability ratings can be recommended.


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 neurogenic claudication due to lumbar spinal stenosis condition and IAW VASRD §4.104, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended bilateral knee and shin splint conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. 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
Neurogenic Claudication Due to Lumbar Spinal Stenosis
 7114 20%
Bilateral Shin Splints
 Not Unfitting
Bilateral Anterior Knee Pain
 Not Unfitting
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120813, 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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