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AF | PDBR | CY2013 | PD-2013-02528
Original file (PD-2013-02528.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02528
BRANCH OF SERVICE: MARINE CORPS         BOARD DATE: 20140930
SEPARATION DATE: 20050915


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-6 (5711/Nuclear, Biological and Chemical Defense Specialist) medically separated for a back problem. The 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 (LIMDU) and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “persistent L5 radiculopathy”, was the forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The Informal PEB adjudicated “persistent L5 radiculopathy failing surgical decompression” as unfitting, rated at 0%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “Injury was while on active duty while during work related tasks. Also had paperwork started for 3rd enlistment when found medically unfit for duty.”


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 and, 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.


 RATING COMPARISON :

Service PEB – Dated 20050520
 VA - (11 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Persistent L5 Radiculopathy 5243 0% Lumbar Disc Disease 5243 10% 20060811
L5 Radiculopathy 8799-8721 0% 20060811
Other x 0 (Not in Scope)
 Other x 1 20060811
Combined: 0%
 Combined: 10%
Derived from VA Rating Decision (VA RD ) dated 200 60901 (most proximate to date of separation )


ANALYSIS SUMMARY:

Chronic Back Pain Condition. Service treatment records (STRs) showed repeated instances of back injury beginning in 2000. On 25 February 2003, the CI reported to the battalion aid station after sustaining an injury during Marine Corps Martial Arts Program training. The CI complained of constant, sharp, 8/10, lower back pain that radiated into the thighs. During the neurosurgery consultation dated 14 April 2003, the CI reported that his low back pain had resolved, but that he had developed pain that radiated down the right leg. The magnetic resonance imaging (MRI) showed fourth lumbar to first sacral vertebra (L4-S1) degenerative disc disease (cartilage pads between vertebrae of the spinal column), L4-5 stenosis (narrowing of the open spaces), and L5-S1 disc herniation (abnormal protrusion) to the right. The diagnosis listed lumbar herniated disc and lumbar stenosis. Treatment plan was a recommendation for surgery in 6 months if condition has not improved with activity restrictions. The CI failed conservative therapy which included activities modifications, pain medications and corticosteroid injections. On 3 November 2003, the CI underwent right L4-5 and L5-S1 discectomy (surgical removal of herniated disc material compressing the spinal cord or nerve roots). His symptoms persisted and on 17 May 2004 he had a right L5-S1 laminectomy (surgical removal of portion of vertebra to access spinal cord or relieve pressure on nerves). The lumbar spine MRI obtained on 
2 August 2004 showed postoperative changes consistent with partial right hemi-laminectomies at L4-5 and L5-S1.

During the MEB narrative summary (NARSUM) dated 19 January 2005 (8 months prior to separation); the CI complained of increasing back stiffness and right lower extremity radiating pain. He denied bowel or bladder dysfunction. Physical examination showed a well healed lumbar incision. The CI walked with a normal gait (native, heel and toe walking). Bilateral lower extremities demonstrated 5/5 strength and showed no signs of muscle atrophy (wasting), fasciculations (involuntary contraction and relaxation), or clonus (spasm). Sensation and reflexes were symmetric and intact. The diagnosis was listed as persistent L5 radiculopathy failing surgical decompression. Comments on spasm, painful motion, or incapacitation were omitted. The range-of-motion (ROM) was not obtained.

At the VA compensation and pension (C&P) examination obtained on 11 August 2006 
(11 months post-separation), the CI complained of chronic low back pain with occasional radiation of pain and numbness down the back of his left leg and into his foot. He occasionally wore a back brace if he had stand for protracted periods. The CI did not use crutches, canes, or other assistive devices. He denied unsteadiness of gait or a recent history of falls. The CI was employed as a restaurant manager and had missed no time from work over the preceding 12 months. His job was not significantly affected by his conditions and he reported that he was not taking pain medications. He completed activities of daily living without limitation and worked with minor limitations. The CI was able to walking without discomfort, but was unable to run or left heavy objects because of low back pain. The examiner noted that the CI had no obvious posture or gait abnormalities and ambulated with an upright symmetric gait. There was a five centimeter, well healed, midline, lumbar scar. Inspection showed loss of lumbar lordotic curve and mild lumbar paraspinal tenderness bilaterally. He demonstrated normal pain free ROM of his extremities, had 5/5 strength and had intact and symmetric sensation and reflexes. Straight leg test (assesses sciatic nerve root compression/irritation by herniated lumbar disc) was positive on the left. Active thoracolumbar spine ROM, measured with a goniometer, was normal. Flexion between 60 and 90 degrees elicited both back pain that radiated to the posterior left leg and left foot numbness. Repetitive testing exacerbated these symptoms. Neither muscle spasms nor incapacitation episodes were recorded.

The Board directed attention to its rating recommendation based on the above evidence. Of note, the subjective symptoms, objective findings, radiographic imaging and surgical interventions documented prior to separation reflected lower back and right lower extremity conditions. The subjective symptoms and objective findings documented post-separation reflected lower back and left lower extremity conditions. The IPEB dated 20 May 2005, rated the unfitting persistent L5 radiculopathy failing surgical decompression at 0%, under VA code 5243 (intervertebral disc syndrome). The VA rating decision (VARD) dated 1 September 2006 rated the lumbar disc disease at 10%, under VARSD coded 5243, citing the VA C&P examination’s ROM. The VARD also rated the L5 radiculopathy at 0%, under VARSD coded 8799-8721 (analogy neuralgia) citing absence of incomplete paralysis.

The Board considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy. The CI had radicular symptoms, secondary to intervertebral disc disease, which were treated with surgery. The MEB NARSUM and VA C&P examinations showed no evidence of defective innervation with normal strength, intact sensation/reflexes and absence of disuse atrophy. A non-compensable evaluation is assigned unless there is incomplete paralysis of foot movements characterized as mild. While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general rating formula for diseases and injuries of the spine, which specifically states “with or without symptoms such as pain (whether or not it radiates).” No goniometer measured active thoracolumbar spine ROM was documented prior to the VA’s C&P examination. The ROM recorded in the VA’s C&P examination was normal and did not attain a minimum rating with application of the VASRD. A higher rating would require forward flexion of greater than 60 degrees, but not greater than 85 degrees, or a combined ROM of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees.

The Board considered rating the back condition using the VASRD formula based on incapacitating episodes as 5243 (intervertebral disc syndrome). No documented physician directed bed rest for incapacitating episodes was in evidence in the STRs, MEB NARSUM, or VA C&P examination. Board members agreed that there was sufficient evidence of pain with use prior to separation, as well objective examination and imaging findings, to support a 10% rating considering functional loss and painful motion (§4.40, §4.59). Absent spasm or incapacitation and with a normal ROM, the Board found no route to a higher rating.


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 chronic back pain condition, the Board unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a. 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 his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Chronic back pain condition 5243 10%
COMBINED 10%














The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131105, 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 25 Mar 15 XXXXXXXXXXXXXXX
         (c) PDBR ltr dtd 26 Feb 15 XXXXXXXXXXXXXXX
         (d) PDBR ltr dtd 25 Mar 15 XXXXXXXXXXXXXXX
         (e) PDBR ltr dtd 24 Mar 15 XXXXXXXXXXXXXXX

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

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

a. XXXXXXXXXXXXXXX, former USMC : Entitlement to disability severance pay with a 10 percent (increased from 0 percent) disability rating effective date of discharge.

b. XXXXXXXXXXXXXXX, former USN : Entitlement to disability severance pay with a 20 percent (increased from 0 percent) disability rating effective date of discharge.

c. XXXXXXXXXXXXXXX, former USN : Entitlement to disability severance pay with a 20 percent (increased from 10 percent) disability rating effective date of discharge.

d. XXXXXXXXXXXXXXX, former USMC : Entitlement to disability severance pay with a 10 percent (increased from 0 percent) disability rating 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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