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AF | PDBR | CY2013 | PD-2013-02301
Original file (PD-2013-02301.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX            CASE: PD-2013-02301
BRANCH OF SERVICE: MARINE CORPS           BOARD DATE: 20140617
SEPARATION DATE: 20051231


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (0311/Infantry) medically separated for chronic low back and right leg conditions. The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB). The MEB also identified and forwarded two other conditions “pain in soft tissues of limb” and “mood disorder secondary to chronic pain” for Physical Evaluation Board (PEB) adjudication. The Informal PEB adjudicated the back and right leg conditions as unfitting, as one condition “chronic low back and right leg pain status post 3 lumbar surgeries with no improvement” and rated it at 10%. The PEB rated “mood disorder secondary to chronic pain” as a Category III condition (not separately unfitting and does not contribute to the unfitting conditions). The CI made no appeals and was medically separated.


CI CONTENTION: “Currently at 80% disability with Veterans Affairs. Condition(s) have and are worsening since discharge. Chronic and permante disabilities. Currently on morphine. Have difficulty sleeping, working and maintaining quality of life due to my disabilities. Everyday is a ongoing battle to just to try to remain ‘normal’. Almost all physical activities have been removed from life since injuries. Life just not mean what it use to. If I could give all my disabilities, money and service for a chance to be normal, I’d do it in a heartbeat. Service and sacrifice to this country and its people was not worth it. It was not worth my youth and my health”. Block 15 remarks also included reference to the nearly 100% disabled rating (from VA) and worsening.


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 ratings for the unfitting back and right leg conditions are addressed below; the mood disorder condition is also within the Board’s defined DoDI 6040.44 purview. 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 (DVA), operating under a different set of laws. The Board considers DVA evidence within 12 months only to the extent that it reasonably reflects the disability at the time of separation. 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 20050819
 VA - (Exam ~ 3 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Low Back and Right Leg Pain Status Post Three Lumbar Surgeries 5241 10% Herniated Disc at L5-S1, Status Post-Surgical Discectomy and Spinal Fusion 5241 40% 20050909
Surgical Scar, Lumbar Spine 7804 10% 20050909
Nerve Entrapment of the L5-S1 Spinal Nerves (claimed as right leg condition) 8599-8520 10% 20050909
Mood Disorder Secondary to Chronic Pain Category III
Not Unfitting		 Depression 9434 10% 20050913
No Additional MEB/PEB Entries in Scope
 Other x 1 20050909
Combined: 10%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 60216 (most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Chronic Low Back and Right Leg Pain Condition. The record indicated that the CI had non-traumatic onset of pain radiating down his right leg in 2003 with normal lumbar spine radiographs. Symptoms continued to worsen to low back pain (LBP) and included numbness around the right ankle with a diagnosis of lumbago and right sciatica. Magnetic resonance imaging (MRI) in February 2004 documented a herniated disc (HNP) at L5-S1 which displaced the right S1 nerve root. Following worsening of LBP with radiating pain into the right ankle with numbness, lumbar myelogram with CT indicated right L5-S1 stenosis and HNP. The CI was placed on LIMDU in May 2004 for LBP/L5-S1 disk bulge and right S1 nerve root impingement. Circumstances were noted as “low back pain and right S1 numbness, paresthesias and hypoesthesia for 1 year. No known mechanism of injury.” Neurosurgical evaluation in March 2004 documented right ankle weakness (4+/5) decreased pinprick sensation in the right ankle and calf and decreased right ankle reflex of 1+ versus 2 on the left. Following L5-S1 laminectomy in March 2004, he was treated for post laminectomy syndrome, had recurrent symptoms with recurrent HNP and underwent a re-do right L5-S1 micro discectomy in October 2004. Upon symptom resumption and new MRI documenting significant scaring at the S1 nerve root with compression on the right, LIMDU was again recommended in March 2005 for LBP and right S1 nerve root impingement. The CI underwent his third back surgery of lumbar fusion with a disc spacer and rods in May 2005. Despite narcotic pain management pain and right leg symptoms persisted. The narrative summary (NARSUM) dated 22 June 2005 noted the CI had chronic LBP and was “only 6 weeks out of a major lumbar surgery at this time” and had continued LBP and no improvement of his right leg symptoms (although his left leg symptoms had improved).

A neurosurgery clinic note dated 4 August 2005 (4 months prior to separation) summarized the recent CT and MRI exams as showing good alignment with good fusion forming. “The MRI demonstrates no nerve compression. It shows adequate removal of the disc. However, it is plain to see that the right S1 nerve root is thicker in diameter than the left S1 nerve root, and this is probably evidence of some chronic fibrosis within the nerve roots from the chronic compression that he had previously.” Physical therapy range-of-motion (ROM) was performed on 5 August 2005 with a single set or ROMs documenting 40 degrees (normal 90 degrees) of forward flexion and combined ROM of 190 degrees (normal 240 degrees). There was no evidence of repetition assessment of pain or other DeLuca criteria, or any sensory/motor exam documented. The PEB was dated 22 August 2005 and the PEB work card (Joint Disability Evaluation Tracking System) indicated the 5 August 2005 combined ROMs were used for rating with consideration of likely improvement.

At the VA Compensation and Pension exam performed 3 months prior to separation (dated 9 September 2005), the CI reported LBP with painful pulling and stinging sensation from his back down into his right leg causing “difficulty moving, bending, twisting, lifting due to high levels of pain in the lower back and legs.” He had subjective numbness in the right leg up to the knee. He was taking narcotic pain medication and valium as needed. Exam documented back tenderness without spasm. ROM was documented as forward flexion 30 degrees (normal 90 degrees) with combined ROM of 165 degrees (normal 240 degrees). The examiner stated: “With repetitive use there is pain, fatigue, weakness, lack of endurance and incoordination. I am unable to determine the additional limitation in degrees without sorting to mere speculation.” Motor function was assessed as normal, gait was normal and ankle reflex was 1+ bilaterally. Sensory function was decreased in the right lower leg and foot. The straight leg test (for radicular signs) was positive bilaterally.

Additional ROM testing by inclinometer was accomplished on 21 October 2005 as part of a PEB rebuttal. Measurements indicating either 55 degrees or 65 degrees forward flexion as active or passive ROM was not clearly specified (normal active ROM 90 degrees), with extension limited to 10 degrees (normal 30 degrees) and each side bending to 25 degrees (normal 30 degrees). Pain was noted on ROM testing, with no evidence of repetition assessment or other DeLuca criteria, or any sensory/motor exam documented. Remote VA exams from July 2010, over 4 years post-separation indicated the CI had increased radicular pain and paresthesias bilaterally. Forward flexion of the thoracolumbar spine was 60 degrees with pain (met the 20% rating criteria). The VA increased their radiculopathy rating, but maintained the 40% back rating until a subsequent exam in 2012 led to a decreased spine rating of 20%.

The Board directs attention to its rating recommendation based on the above evidence. The Board considered that the LBP condition was coded using 5241 (spinal fusion) by both the PEB (10%) and the VA (40%), while the VA additionally rated the sciatica (nerve entrapment of L5-S1 spinal nerves) as 8599-8520 at 10%, analogous to sciatic nerve mild incomplete paralysis, and the tender back surgery scar coded 7804 at 10%.

The PEB combined the LBP and right leg pain (sciatica) conditions under a single disability rating. Although the general rating formula for the spine can include symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine pain; it does not preclude separate rating under sciatica via a separate peripheral nerve rating. The Board can separately rate the two conditions (as the VA rated them), provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for rating. If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW the VA Schedule for Rating Disabilities (VASRD) §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB. The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.

The Board first considered that the VA-rated tender scar was not adjudged unfitting or compensable as there was no impairment of duty performance based on the scar that was not already captured by the LBP condition. The Board considered that the CI’s initial presentation was for leg pain and that the right leg S1 nerve impingement condition was separately listed on LIMDUs. The right leg condition included pain consistent with S1 radiculopathy and “sciatica” diagnosis, objective evidence of right S1 nerve root pathology on imaging, and sensory loss. The Board unanimously adjudged that the right leg condition was separately unfitting given interference with the high physical demands of his MOS as a rifleman. The low back condition was also adjudged as separately unfitting given low back pain and disk disease listed on LIMDUs, multiple back surgeries to include fusion and limited back ROMs.

The Board deliberated at length about the separate rating options for the right leg condition and the thoracolumbar spine (LBP) condition. The right leg condition was adjudged to best be coded analogous to sciatic nerve neuritis (8599-8620) and met the “mild” or 10% rating level IAW VASRD §4.123 and §4.124a. The Board considered that the MEB exam clearly documented limited forward flexion of 40 degrees to meet the 20% rating criteria under the general rating formula for the spine. The pre-separation VA exam also clearly documented forward flexion of 30 degrees which would warrant a 40% spine rating. However, the CI had undergone his third spine surgery less than 4 months prior to those exams and both a post-surgical “honeymoon period” and post-surgical scarring were potentially ongoing at that time. The incomplete inclinometer evaluation closest to separation was not considered probative or ratable as an exam IAW VASRD §4.46. The Board considered the tenants of VASRD §4.7 (higher of two evaluations) as well as the totality of the record including post-separation VA evidence and considered that the pre-separation VA exam (40%) was an outlier and that the NARSUM exam (20%) best represented the disability picture in effect at the time of separation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the thoracolumbar spine (LBP) condition.

Contended PEB Condition (Mood Disorder Secondary to Chronic Pain). The Board’s main charge is to assess the fairness of the PEB’s determination that the mood disorder condition was 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. The mood disorder condition was not implicated in the LIMDU or non-medical assessment statement. The psychiatry addendum to the MEB stated that “There are no limitations related to his psychiatric status,” which aligned with the Global Assessment of Functioning (GAF) of 65 (range of mild symptoms) and the remainder of the exam. Pre-separation VA psychiatry examination made a diagnosis of depression, not otherwise specified, with a GAF of 65 (same as MEB GAF). There was no performance based evidence from the record that the mood disorder secondary to chronic pain condition significantly interfered with satisfactory duty performance. 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 mood disorder condition and so no additional disability ratings are 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. In the matter of the chronic low back and right leg pain status post three lumbar surgeries condition, the Board unanimously recommends rating as two unfitting conditions with a low back disability rating of 20%, coded 5241 IAW VASRD §4.71a; and a right leg pain (sciatica) condition rated 10%, coded 8599-8620 IAW VASRD §4.124. In the matter of the contended mood disorder secondary to chronic pain 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; 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
Chronic Low Back Status Post Three Lumbar Surgeries 5241 20%
Right Leg Pain Status Post Three Lumbar Surgeries 8699-8620 10%
COMBINED 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131104, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record






                                   
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review


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

Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 26 Feb 15 ICO XXXXXXXXXXXXXXXXX
         (c) PDBR ltr dtd 21 Jan 15 ICO XXXXXXXXXXXXXXXXX
         (d) PDBR ltr dtd 13 Jan 15 ICO XXXXXXXXXXXXXXXXX
         (e) PDBR ltr dtd 5 Feb 13 ICO XXXXXXXXXXXXXXXXX
         (f) PDBR ltr dtd 28 Feb 15 ICO XXXXXXXXXXXXXXXXX
1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (f).

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

a. XXXXXXXXXXXXXXX, former USN : Disability separation with final disability rating of 10 percent (increased from 0 percent) effective date of discharge.

b. XXXXXXXXXXXXXXX, former USN : Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

c. XXXXXXXXXXXXXXX, former USN : Placement on the Permanent Disability Retired List with a 70 percent disability rating effective date of discharge.

d. XXXXXXXXXXXXXXX, former USMC : Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

e. XXXXXXXXXXXXXXX, former USMC : Disability separation with final disability rating of 10 percent (increased from 0 percent) effective date of discharge.

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



          XXXXXXXXXXXXXXX
         Assistant General Counsel
                                    (Manpower & Reserve Affairs)

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