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AF | PDBR | CY2014 | PD 2014 00814
Original file (PD 2014 00814.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX    CASE: PD-2014-00814
BRANCH OF SERVICE: MARINE CORPS   BOARD DATE: 2014 111 2
Separation Date: 20090730


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (0331/Infantryman Machine Gunner) medically separated for a back condition. 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 status and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “displacement of lumbar intervertebral disc without myelopathy” and “postsurgical arthrodesis status”, was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The MEB also identified and forwarded one other condition (essential hypertension) to the PEB. The Informal PEB (IPEB) adjudicated “anterior lumbar fusion” as unfitting, rated at 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The IPEB identified and adjudicated both L5-S1 herniated disk and microdiskectomy as Category II conditions and the conduct disorder, adolescent onset type, as a Category III condition. The CI made no appeals and was medically separated.


CI CONTENTION : The CI writes: “Chronic back pain, in.”


 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 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 anterior lumbar fusion, L5-S1 herniated disk and microdiskectomy conditions are addressed below. 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.
The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Military Disability Evaluation System has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation.

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RATING COMPARISON :
Service IPEB – Dated 20090501
 VA - (6 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Anterior Lumbar Fusion 5241 20% Low Back Strain with Sciatica 5243-5237 20% 20100128
Left Leg Numbness Associated with Low Back Strain with Sciatica 8520 10% 20100128
L5-S1 Herniated Disk Category II See Above 20100128
Microdiskectomy Category II See Above 20100128
Other x 1 (Not in Scope)
 Other x 5 20100111
Combined: 20%
 Combined: 70%
Derived from VA Rating Decision (VARD) dated 20 1 0 0420 (most proxi mate to date of separation )


ANALYSIS SUMMARY : The PEB adjudicated L5-S1 herniated disk and microdiskectomy conditions as Category II conditions . These condit ions will be discussed under the anterior lumbar fusion condition .

Anterior Lumbar Fusion Condition . The CI developed low back pain (LBP) after a motor vehicle accident (MVA) in June 2005 and was initially placed on a 6 month s LIMDU for herniated nucleus pulposus (HNP) L5-S1 . The CI’s primary care provider’s prognosis was “ slow progression of LBP , with occasional left leg numbness , [which] worsens over the past 2 years ” . A lumbar spinal X -ray image showed mild narrowing of the L4-5 and L5-S1 intervertebral discs , which are consistent with early degenerative change. The physical therapist’s patient note (date omitted) documented that for moderate pain control , t he CI required muscle relaxer s , non-steroidal anti-inflammatory drug s (NSAID) and mild narcotic s . A spinal MRI revealed a bulging disc at L4-5, an annular tea r, broad based disc protrusion L5-S1 and nerve root displacement along with lumbar spine spondylosis ( referring to degenerative osteoarthritis of the joints between the center of the spinal vertebrae and/or neural foramina ).

 Throughout 2007, the CI received follow-up care from both physical therapy and primary car e provider for his chronic LBP condition ; the latter noted that CI did not receive any pain control benefit from [steroid] epidural injection(s). The CI underwent an L5-S1 microdiskectomy , for radiculopathy associated with an L5-S1 disk , in February 2008 . The p ain management specialist noted that after the post-surgical procedure , the CI reported significant improvement of left leg numbness and pain but no improvement of his LBP . The CI underwent an anterior L4-5 fusion on 26 August 2008 , yet d espite the second procedure and pain medications, the re was no improvement of the CI’s LBP. During the pain management evaluation, the examiner also observed the CI had a mildly antalgic gait and his strength was normal.

The MEB narrative summary (NARSUM) exam ination performed approximately 5 months prior to separation , documented LBP that w o rse ns with activity and intermittent left lower extremity pain. The MEB NARSUM physical exam findings were summarized in below chart .

The VA Compensation and Pension (C&P) exam performed 1 7 months post separation documented chronic severe LBP with radiation of pain in to the left buttock and thigh. The examiner noted limping and intermittently tingling greater in left lower extremity than the right . The VA C&P physical exam findings were also summarized in the below chart.

There were two goniometric ranges -of- motio n evaluations in evidence with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.



Thoracolumbar ROM (Degrees) MEB 5 Mo. Pre-Sep VA C&P 17 Mo. Post-Sep
Flexion (90 Normal) 90 90
Combined (240) 230 225
Comment Slow but steady gait; Normal motor, sensation & reflexes; No spasm or tenderness Pos. antalgic gait & tenderness at L5; Normal motor, sensation & reflexes
§4.71a Rating 20% 20%
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The Board directs attention to its rating recommendation based on the above evidence. The PEB and the VA chose different coding options but this did not significantly affect the rating as noted above. The PEB coded the anterior lumbar fusion condition as 524 1 (s pinal fusion ), rated at 20%. The VA coded the low back strain with sciatica; s/p failed L5-S1 m icrodiskectomy as 5243 ( i ntervertebral disc syndrome ) , with 5237 (l umbosacral or cervical strain ) and rated at 20%. The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “ with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease” . All exams proximate to separation met the 20% rating criteria for a mildly antalgic gait and chronic LBP which required both narcotic and neurogenic pain medication .

 The VA C&P exam, while far remote from the Board’s 12 month s interval for consideration, showed an antalgic gait; low back tenderness at L5 and muscular tenderness in the left buttock. Historically, the Board ’s precedent is that a functional impairment has to be coupled to a fitness determination to support a recommendation for addition al peripheral nerve rating at separation. The pain component of a radiculopathy is subsumed under the General Spine Rating as specified in §4.71a. The sensory component in this case has no functional implications and there wa s no motor impairment documentation in evidence to support a recommendation for additional rating based on peripheral nerve impairment. After due deliberation, considering all of the evid ence and mindful of VASRD §4.3 (r easonable doubt ) , the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the anterior lumbar fusion 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 anterior lumbar fusion 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 re-characterization of the CI's disability and separation determination.











The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 140218 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record






                          
XXXXXXXXXXXXXX
President
 DoD 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 29 Apr 15

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, 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:

- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN



                                                      XXXXXXXXXXXXXX
                                            Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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