RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01277
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150220
SEPARATION DATE:  20040430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Hospital Corpsman) medically separated for low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of her Rating or satisfy physical fitness standards.  She was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The “L4/5 degenerative disc disease,” “L4/5 herniated nucleus pulposus” and “chronic right L5 radiculopathy” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic right L5 radiculopathy” as unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be Category II, contributing to the unfitting condition.  The CI made no appeals and was medically separated.

CI CONTENTION:  “1. Back condition is worse.  2. Not all Service connected conditions were listed on separation.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

IPEB – Dated 20040107	VA* - (~3 Mos. Pre -Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right L5 Radiculopathy	5295	20%	Left-Sided Radicular Symptoms Due to DDD Lumbar Spine	5243-8720	10%	20040402	
L4/5 DDD	Cat II	Degenerative Disc Disease L4-5	5243	20%	20040402	
L4/5 HNP	Cat II					
Other x0	Other x7	
RATING:  20%	RATING:  50%	
Derived from VA Rating Decision (VARD) dated 20040420 (most proximate to date of separation (DOS))
VARD dated 20041218 corrected effective date to 20040721
ANALYSIS SUMMARY:  

Chronic Right L5 Radiculopathy Condition.  The CI had a 10-year history of LBP beginning in 1994.  She experienced several low back injuries including a motor vehicle accident, a slip where she “wrenched” where back, and a low back strain while moving furniture.  Each injury resulted in either chiropractic or physical therapy care yet her back pain continued.  She also experienced intermittent radicular symptoms one side or the other and occasionally both sides together.  Her back pain continued and in October 2002, approximately 8 years after her first low back injury, she underwent magnetic resonance imaging (MRI).  That study revealed minimal to moderate spinal stenosis at L3-L5 with a “moderate” sized HNP at L4-5.  The CI continued to have LBP with radicular symptoms and underwent a series of three epidural steroid injections (ESI) and a percutaneous nucleoplasty (removing some disc material using a needle) and ultimately underwent surgical fusion of L4-5 on 28 May 2003.  There was a “mal-positioned” screw on the left side, which was surgically removed 4 days later due to symptoms.  Her LBP did not respond and she underwent another microscopic procedure on the L4-5 disc, due to abnormalities identified on repeat MRI and electromyography testing.  The microscopic laminotomy/foraminotomy/facetectomy did not relieve her radicular/LBP symptoms.  She continued to experience the intermittent radicular symptoms and her exams over the entire 2-year period of ESIs and surgical interventions revealed intermittently decreased sensation in the leg, but never any leg weakness, atrophy, or reflex changes.  

The narrative summary prepared 10 months prior to separation noted the CI still had left hip and anterior thigh pain, which was worse with sitting and standing.  However, she reported that it was much improved over what it would have been prior to the final surgical procedure.  At the VA Compensation and Pension (C&P) exam performed 3 months prior to separation, the CI reported she was treated with various modalities (chiropractic manipulation, physical therapy, and pain medications) - all with poor results.  She also had spinal fusion surgery done in May 2003, June 2003, and July 2003 with poor results.  

The goniometric 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)	ORTHO ~19 Mo. Pre-Sep	NARSUM ~10 Mo. Pre-Sep	VA C&P ~3 Mo. Pre-Sep	
Flexion (90 Normal)	70	N/A	45	
Combined (240)	-		170	
Comment: Straight Leg Raise (SLR)	Pos. tenderness to palpation; Normal strength, reflexes & sensation; Neg. SLR	Normal strength & reflexes; Decreased sensation left foot; Neg. SLR bilaterally.	Guarded gait; Normal posture; Pos. painful motion; Normal reflexes	
§4.71a Rating	10% (PEB 20%)		20% (VA 20%)	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic right L5 radiculopathy condition by applying VASRD code 5295 (lumbosacral strain) and rated it 20%.  The Board reviewed this coding/rating scheme and noted that the PEB identified the unfitting condition as “radiculopathy” (a condition of the nerves), yet applied a musculoskeletal system code and rating.  The PEB also identified the L4-5 DDD and HNP (both musculoskeletal conditions) as Category II conditions as previously discussed.  The VA applied the combination code of 5243 (intervertebral disc syndrome) with 8720 (sciatic nerve neuralgia) to the radiculopathy condition and rated it 10%.  The VA also applied code 5243 to the DDD L4-5 condition and rated it 20%.  The Board evaluated both PEB condition types, the radiculopathy (nerves) and the DDD/HNP (musculoskeletal) and based its recommendation on the higher of two evaluations IAW VASRD §4.7.  The PEB adjudicated the L5 radiculopathy condition as unfitting and that condition would be coded 8720 as applied by the VA.  Rating under code 8720 entails assigning a subjective designation of either “mild” (10%) or “moderate” (20%), as prescribed by VASRD §4.124 (neuralgia) that states, “…is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis.  See nerve involved for diagnostic code number and rating.”  Upon review of the evidence, Board members agreed that the radiculopathy condition was best described as “moderate” and would garner a 20% rating as applied by the PEB.  The Category II musculoskeletal conditions, DDD and HNP, would be appropriately evaluated using the General Rating Formula for Diseased and Injuries of the Spine which includes “…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.”  That formula uses ROM measurements to arrive at the rating level.  The Board assigned exclusive probative value to the C&P exam that was performed 3 months prior to separation as it was the only exam within 12 months of separation that contained the required ROM measurements.  The C&P exam documented a thoracolumbar forward flexion of 45 degrees, which is consistent with a 20% rating.  The combined ROM of 170 degrees would garner a 10% rating under the general rating formula.  Basing the Board’s recommendation on either of the two options would result in a 20% rating and be of no benefit to the CI.  There were no documented episodes of incapacitation upon which to base a rating under code 5243.  The Board considered using both options in its recommendation as awarded by the VA, but had to account for fitness considerations and avoid pyramiding IAW VASRD §4.14 (Avoidance of pyramiding) “The evaluation of the same disability under various diagnoses is to be avoided.”  Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  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 was no motor impairment that could be linked to any functional consequence.  Therefore, there is no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy; and, the Board cannot support a recommendation for an additional disability rating on this basis.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed Board consensus was that a disability rating of 20% for the chronic right L5 radiculopathy condition was appropriately recommended in this case.

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 right L5 radiculopathy 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 20130909, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION 
Ref:	(a) DoDI 6040.44
(b) CORB ltr dtd XX Jun 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:

-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX , former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN