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AF | PDBR | CY2012 | PD2012 01808
Original file (PD2012 01808.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xx         CASE: PD1201808
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20130530
SEPARATION DATE: 20031209


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Officer Candidate undergoing training in 2002 to become an officer in the Marine Corps medically separated for a back condition. This training included significant amounts of running and marching during which the CI began to experience discomfort in the left lower extremity. Initial evaluation found a left tibial stress fracture and led to the CI being dropped from training and referred for a Medical Evaluation Board (MEB). The MEB found the stress fracture had healed, but the MEB examination also found persistent tenderness in the left leg. The MEB at that time identified “Chronic peroneal tendonitis, left lower extremity” and forwarded the case to an Informal Physical Evaluation Board (IPEB); no other conditions were forwarded by the MEB. The CI continued to seek medical care for left lower leg pain as the case progressed through the process. The IPEB found the CI fit for duty based upon the healed stress fractures, which the CI appealed due to continued pain. Further medical evaluation and treatment led to identification of a herniated vertebral disk as the source of the leg pain and surgical intervention was undertaken. The case had now been sent to a Formal PEB (FPEB), which adjudicated “herniated disk left L5-S1 post lumbar laminectomy and disectomy” as Category I (unfitting) and rated 10% disability. The FPEB also judged “chronic peroneal tendonitis, left lower extremity” as Category II (contributing & related), and “stress fracture, left tibia” as Category III (not contributing). The CI was medically separated.


CI CONTENTION: “Discharged with 10%, then VA awarded 70%.”


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 is addressed below; the radicular pain left lower extremity is also in scope. 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 FPEB – Dated 20030923
 VA - (8 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Herniated Disk Left L5-S1 Post Lumbar Laminectomy and Discectomy
 5293-8620 10% Herniated Nucleus Pulposis L5-S1, Status Post Discectomy and Laminectomy 5243 40% 20040729
Radicular Pain, Left Lower Extremity 8521 10% 20040729
Chronic Peroneal Tendonitis, Left Lower Extremity
 Cat II No VA Entry
Stress Fracture, Left Tibia
 Cat III
No Additional MEB/PEB Entries
 No Additional VA Entries
Combined: 10%
 Combined: 50%
Derived from VA Rating Decision (VA RD ) dated 20040908 .


ANALYSIS SUMMARY: The Board evaluates VA evidence proximate to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of fitness decisions and rating determinations for disability at the time of separation. DoDI 6040.44 specifies a 12-month interval for special consideration to VA findings. Post-separation evidence, however, is probative only to the extent that it reasonably reflects the disability at the time of separation from military service. This particular case, however, involves separation from active duty for training while engaged as a civilian college student with an approved Line of Duty finding that allowed a continuance of the Disability Evaluation System after the date of separation. Although a date of 12 July 2002 was established for this purpose, the identification of the unfitting herniated disc condition and the performance of the surgical intervention did not take place until well after that date, after the IPEB but prior to the FPEB. In consultation with this Board’s leadership, it was decided that the most reasonable effective date for a rating recommendation should be 9 December 2003, which is the same date used by the VA and only 2 months after the FPEB. The remainder of this report will refer to 9 December 2003 as the “separation date” and the Board will invoke all provisions of the above stated DoDI 6040.44 as applicable to that date.

Herniated L5-S1 Disk Condition. The CI was a student under contract/orders for extended active duty from 2 June 2002 to 9 August 2002 with the United States Marine Corps (USMC) Reserve performing summer Officer Candidate School boot camp training. On 5 July 2002, she developed mid left leg pain without a history of direct trauma. Despite normal X-rays, she was clinically diagnosed with a stress fracture and thus dropped from additional training. During the first 6 months after suspension from active duty and transfer to Ready Reserve status, the CI’s left mid leg pain symptoms improved. However, she developed a chronic pain on the lateral aspect of her left ankle which persisted with increasing intensity. X-rays of the left ankle, magnetic resonance imaging (MRI) of the left leg and total body bone scan were reported as normal. Persistent findings of tenderness over the path of the peroneal nerve/tendon (around the ankle) led to a diagnosis of chronic left peroneal tendonitis. Despite medications and multiple steroid injections, the ankle pain continued and was associated with numbness and tingling in the left leg and dorsum of left foot. At the MEB exam on 16 January 2003 (approximately 3 months prior to the diagnosis of the lumbar spine condition and 11 months prior to separation), the CI reported pain behind the left ankle and the need to wear a walking device to assist with ambulation. The physical examination revealed a slight antalgic gait, tenderness along the course of the left peroneal tendon, and minimal painful motion of the ankle. There was no subluxation, erythema, or clinical deformity noted. Ankle instability was absent. Ankle X-rays were normal. In apparent response to the IPEB determination on 14 March 2003 finding the CI fit for duty, the CI stated in a letter dated 1 April 2003: “I am not fit for duty, I have been in bed with my leg up for two weeks, and was in a cast on crutches for 1 month…” A lumbar spine MRI study on 25 April 2003 confirmed the presence of degenerative disc disease as well as a left-sided spinal disc protrusion/herniation of L5-S1. Based in part on these findings, a civilian neurosurgeon considered her leg and foot symptoms secondary to spinal pathology. The CI underwent surgery on 7 May 2003 for L5-S1 laminectomy and discectomy. Post-operatively, the CI had significant improvement for only a short period; left leg and ankle symptoms returned as well as back pain at the surgical site. A myelogram performed on 18 August 2003 revealed a left L5-S1 lumbar radiculitis in connection to her sciatic nerve. The service treatment record (STR) did not contain any post-surgical clinical follow-up examinations after the CI’s surgery in May 2003. In a letter dated 9 September 2003 and noted by the FPEB on 23 September 2003, the neurosurgeon stated: “At the present time she is at normal light activity…She is neurologically normal. I have got her on a restriction of 25 pounds weight lifting. She is on a walking program but she is unable to run…She is not fit for military duty at this point.” At the VA Compensation and Pension (C&P) on 29 July 2004 (approximately 8 months after separation and 15 months after surgery), the CI reported chronic low back pain and associated “achiness” about the lumbar spine that occasionally extended into the left leg and foot. She reported that symptoms were relieved with standing. On examination, there was no evidence of muscle weakness or atrophy. There was no joint swelling, effusion or ankylosis to the spine or lower extremities. Muscle spasm was present and was cited as the cause of an observed antalgic gait. Motor, sensory and deep tendon reflexes of the lower extremities were normal. At a neurology C&P examination on 7 December 2004 (12 months after separation) the CI complained of distal left lateral calf pain, with tingling and weakness. Exam noted a positive straight leg raise test (SLR) on the left, and normal lower extremity strength and deep tendon reflexes. Sensation was intact “except left S1 nerve.” At a follow-up C&P exam on 27 January 2005 (13 months after separation) the CI complained of worsening back pain that radiated to the left leg and sometimes to the right. Lower extremity weakness reportedly never occurred. Her walking was limited to 1.5 miles, and she reported 4 days of “incapacitating episodes” during the prior year. Examination noted a normal gait and spinal contour. Spasm was absent. Repetitive motion did not result in additional loss of motion. Lower extremity neurologic examination, including muscle strength, was normal. An evocative maneuver for nerve root irritation was positive on the right. The 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)
VA C&P ~ 8 Mo. Post-Sep
PM&R ~ 9 Mo. Post-Sep

VA C&P ~ 13 Mo. Post- Sep
Flexion (90)
 Not Reported 90 (120) 90
Extension (30)
 30 (32) 20
R Lat Flexion (30)
 30 20
L Lat Flexion (30)
 30 20
R Rotation (30)
 30 (65) 30
L Rotation (30)
 30 (65) 30
Combined (240)
 240 210
Comment
 + Muscle spasm causing abnormal gait + P ainful motion, tenderness
§4.71a Rating
 20% (VA 40%) 0% or 10% (VA 40%) 10%

The Board directs attenti on to its rating recommendation based on the above evidence . It is noted in this case that the PEB's adjudication was IAW VASRD §4.71a criteria in effect at the time of those proceedings; but, a change to the current §4.71a criteria ( g eneral r ating f ormula for d iseases and i njuries of the s pine) was effected 26 September 2003, prior to the date of separation. The Board, IAW DoDI 6040.44, will apply the latter criteria to its recommendation. The FPEB conducted in September 2003 ( 4 months after surgery) combined an old 5293 spine code ( i ntervertebral d isc d isease) with a primary code of 8620 ( n euritis , sciatic nerve ) , and rated at 10% . The VA assigned a 40% rating under a new spine code (5243; i ntervertebral d isc s yndrome) stating: “…based on the extent of your complaints, you would likely feel pain on forward bending at as little as 30 degrees. Therefore a 40 percent disability evaluation is assigned.” The Board agreed that the lumbar ROM in evidence did not support a rating higher than 10%; and that a 20% rating was justified based on the first C&P examiner’s finding of muscle spasm severe enough to cause abnormal gait. The Board further deliberated whether a higher rating could be achieved under the formula for rating intervertebral disc disease based on incapacitating episodes. There was nothing in evidence however to suggest a rating higher than 20% was met under that formula. The Board also deliberated if additional disability was justified for the history of left lower extremity radiculopathy. The VA rated radicular pain 10% under the 8521 code ( “Mild” paralysis of common peroneal n erve). As previously mentioned , the PEB assigned a combination peripheral nerve code for the lumbar condition , and thus appear ed to ‘ bundle ’ two conditions together as the single and solely rated condition . However, the Board must apply separate codes and ratings in its recommendations, if compensable ratings for each condition are achieved IAW VASRD §4.71a. I f the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself. Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting; and, that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting. Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB. The CI complained of intermittent left lower extremity radiating pain . Although one examiner noted sensory abnormality in an S1 distribution, all examiners recorded normal muscle strength. 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. There was no evidence in this case of functional impairment attributable to peripheral neuropathy. While the CI experienced some radiating pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” M embers agreed that the radiculopathy was not reasonably justified as separately unfitting; and, accordingly, it cannot be recommended for separate disability rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (R easonable doubt) the Board recommends a disability rating of 20% for the herniated disk left L5-S1 post lumbar laminectomy and discectomy condition, coded 5243.


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 herniated disk Left L5-S1 post lumbar laminectomy and discectomy condition, the Board unanimously recommends a disability rating of 20%; but also recommends a change of code to 5243 to remain compliant with VASRD §4.71a. In the matter of the contended radiculopathy condition, the Board unanimously agrees that it cannot recommend it for additional disability rating. 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, effective as of the date of her prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Herniated Disk Left L5-S1 Post Lumbar Laminectomy and Discectomy Condition
 5243 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120701, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





xx
President
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 9 Aug 13 ICO
(c) PDBR ltr dtd 17 Jul 13 ICO
(d) PDBR ltr dtd 16 Jul 13 ICO
(e) PDBR ltr dtd 9 Aug 13 ICO
(f) PDBR ltr dtd 9 Aug 13 ICO
(g) PDBR ltr dtd 29 Jul 13 ICO
(h) PDBR ltr dtd 8 Aug 13 ICO

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (h).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a. former USMC : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 15 October 2001.

b. former USN : Disability retirement with assignment to the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective 2 May 2003.

c. former USN : Disability retirement with assignment to the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective 2 June 2009.

d. former USN : Disability separation with a final disability rating of 20 percent increased from ten percent) effective 5 October 2004.

e. former USMC : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 31 July 2002.

f. former USMC : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 1 August 2005.

g. former USMC : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 2 July 2002.
        
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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