RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01425
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20140507
SEPARATION DATE:  20020815

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-2 (9900/Basic Marine) medically separated for lumbar spine condition.  The CI injured his back in martial arts training while a recruit in boot camp.  He experienced back pain and pain in his left lower extremity.  He was treated conservatively with no improvement.  The spine condition could not be adequately rehabilitated to meet the physical requirements to participate or complete basic training.  He was placed on light duty and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “other congenital anomaly of spine, neural foraminal stenosis, L4-L5; displacement of lumbar intervertebral disc without myelopathy, L4-L5; displacement of lumbar intervertebral disc without myelopathy, L5-S1;” and “other ill-defined conditions, impingement of the S-1 nerve root,” to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “disc protrusion at lumbar five-sacral one level with impingement of the sacral one nerve root on the left associated with the neural foraminal stenosis” as unfitting, rated 10%, with likely of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions (diffuse broad based disc bulges at lumbar four-five without nerve root impingement and neural foraminal stenosis on a congenital basis at the lumbar four-five and lumbar five-sacral one disc level) were determined to be Category II conditions.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was rated 40% before I had back surgery.  Since then I have had two surgeries on my lower back.”

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 IPEB – Dated 20020618	VA - (6 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Disc Protrusion L5-S1 w/Impingement  of S1 Nerve Root on Left Associated w/Neural Foraminal Stenosis	5293	10%	Injury, Low Back	5295-5293	40%	20030210	
Diffuse Broad Based Disc Bulges at L4-L5 w/o Nerve Root Impingement	CAT II					
Neural Foraminal Stenosis on a Congenital Basis at L4-L5 and L5-S1	CAT II					
No Additional MEB/PEB Entries	Other x 0		
Rating:  10%	Rating:  40%	
Derived from VA Rating Decision (VARD) dated 20030303 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that suggests the rating should have been conferred for the impingement of the S1 nerve root documented at the time of separation.  The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates.  While the DES considers all of the member’s medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career and then only to the degree of severity present at the time of final disposition.  However, the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board utilizes DVA evidence proximal to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  The Board’s authority as defined in DoDI 6040.44 resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.  This case was adjudicated under the VASRD spine criteria effective prior to the changes made on 23 September 2002 and 26 September 2003.

Disc Protrusion L5-S1 w/Impingement of S1 Nerve Root on Left Associated w/Neural Foraminal Stenosis.  The CI injured his back during the early phases of his boot camp when he was doing martial arts, flips and somersaults.  By the next day he had soreness and pain in his back with flexion and left leg weakness with the feeling of the knee giving out.  He also described some pain into the left gluteal (buttocks) region, along with pain down the back of his thigh, into his calf and foot, predominantly the medial side of his foot that was associated with difficulty standing or sitting in one position for an extended period.  Coughing, sneezing or bearing down on the commode would cause more pain into the back and left gluteal region.  He had paresthesias (numbness and tingling) over the left gluteal area, as well as the distal aspect of the posterior thigh on the left and denied any bladder or bowel difficulties.  He indicated that he did fall out of bed 3 months before coming into the military marked by minimal back discomfort and no problems thereafter.  He reported X-rays of his back were “okay.”  Additionally, he worked on a commercial fishing boat 18 hours per day in the Bering Sea for 4 months prior to entering the military and denied any back trouble during that time.  A 4 April 2002 note of indicated “hurt back running at airport before arriving to boot camp.  Never got rx (treatment).”  X-rays of his lumbosacral spine showed slight narrowing of L5-S1.  A magnetic resonance imaging (MRI) of his lumbar spine performed on 15 April 2002, showed mild changes of degenerative disc disease at L4-5 and L5-S1, worse at the L5-S1 level.  There was a diffuse, broad based disc bulge at L4-5 without nerve root impingement or central spinal canal stenosis.  Mild neural foramen stenosis was noted at this level.  He had moderate leftward focal disc protrusion at L5-S1 with impingement of exiting nerve root and neural foraminal stenosis was noted on the left.

Orthopedic notes dated 24 April 2002 indicated low back pain and left leg pain secondary to a herniated nucleus pulposus (disc-HNP) and left leg pain.  SIQ (sick in quarters) was instituted and continued until at least 8 May 2002 at which time he was placed on light duty and treated with pain and muscle relaxing medications.  The MEB narrative summary (NARSUM) dated 29 April 2002 noted straight leg raise was positive on the right and the left and deep tendon reflexes were intact.  He had some motor weakness in his left quadriceps (L4-5) and sensation was normal.  There was guarding in all planes of motion, with a flat back (loss of lordosis) and listing to the right.  The NARSUM examiner noted that an orthopedic consultant had indicated “…that some of the patient's roentgenographic (X-ray) findings pre-existed his entry into the military. This included slight narrowing of the L5-S1 disc space on a standard X-ray and the foraminal stenoses noted at the L4-L5 and L5-Sl levels on the MRI.  However, the disc injuries could readily have occurred with the injuries as described in boot camp.”  An orthopedic clinic note of 8 May 2002 indicated low back pain since 25 March 2002 and a note on 12 June 2002 indicated “still about same am’t [amount] pain LB and left leg…  pain back, L glut, L HS, calf, plantar foot, all toes.  Very limited ante flex, no extension.  Anesthesia consult pain clinic.”  The CI underwent back surgery on 20 December 2002, 4 months after separation to decompress the left S1 nerve root.  The indication for surgery was: “intractable left lower extremity pain.  This has been going on for several months despite conservative efforts through the VA Medical Center in the military, he has not achieved satisfactory relief of his radiculopathy and therefore, an operative intervention is offered to decompress his left S1 nerve root.”

At the VA Compensation and Pension (C&P) exam on 10 February 2003, 6 months after separation, the report indicated the CI “[went] through physical therapy, pain medication which was ineffective.  Steroid and traction, which made the condition worse; and electrical stimulation which provided him only with minimal temporary relief.”  He had surgery 19 December 2002; post-surgery leg pain was present with twisting, bending, or quick movements.  He used lumbar support and reported constant lower back pain, as well as stiffness, weakness, lack of endurance and spasm.  He reported radicular pain of the left lower extremity extending to the foot, as well as paresthesias of the left foot only with the stress. He denied bowel or bladder problems.  He denied erectile dysfunction.  C&P physical exam reported his gait was with the left leg lag.  Left Achilles reflex was non flexor, right was flexor.  Lumbar flexion was –55 degrees, extension –15 degrees both with pain and wincing.  Status post left side LS-S1 lumbar microscopic discectomy.  Due to a recurrent L5-S1 HNP status/post L5-S1 lumbar microscopic discectomy, he underwent another surgery on 11 July 2003.

The Board directs attention to its rating recommendation based on the above evidence.  The Informal PEB (IPEB) rated the CI’s condition 10% using VA code 5293 (Intervertebral disc syndrome) and the VA rated the CI’s condition 40% using code 5293 which states:

5293 Intervertebral disc syndrome:  
Pronounced; with persistent symptoms compatible with sciatic neuropathy with 
characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other 
neurological findings appropriate to site of diseased disc, 
little intermittent relief..........................................................................60 
Severe; recurring attacks, with intermittent relief.....................................40 
Moderate; recurring attacks..................................................................20 
Mild....................................................................................................10 
Postoperative, cured..............................................................................0 

The CI’s condition could alternatively be rated under §4.124a sciatic nerve code 8620 (neuritis) at moderately severe at 40% or moderate 20% IAW §4.123 (neuritis, cranial or peripheral).
The CI had a MRI study that demonstrated “moderate leftward focal disc protrusion at L5-S1 with impingement of exiting nerve root and neural foramen on the left.”  Clinically, the CI had pain from the left gluteus to the foot and the IPEB determined that his unfitting condition was “disc protrusion at lumbar five - sacral one level with impingement of the sacral one nerve root on the left associated with the neural foraminal stenosis.”  Therefore, the Board finds that it is reasonable to consider the condition of sciatica for coding purposes.  

Furthermore, because of the CI’s short time in the service and pursuant to DoDI 6040.44, a review of the post-separation VA C&P examination of 10 February 2003 was carried out to provide a probative evidentiary view of what the CI’s radiculopathy status at the time of separation would represent.  The CI noted constant lower back and “radicular pain of the left lower extremity extending to the foot, as well as paresthesias of the left foot only with stress,” the NARSUM noted some motor weakness in the left quadriceps (L4-5) and the neurosurgical note of 20 December 2002 stated “intractable left lower extremity pain” as the basis for going forward for back surgery.  Another back surgery within a year of separation was performed due to recurrent disc herniation, granulation tissue and “a moderate-sized disc excursion deforming the thecal sac at the L4-L5 level.”

Therefore, based on the totality of the CI’s pre- and post-discharge course, the CI’s condition at separation was closest to the disability description of “severe; recurring attacks, with intermittent relief” which supports a 40% rating under 5293 (intervertebral disc syndrome).  The alternate sciatic nerve code 8620 (neuritis) would also be at closest to the 40% level (moderately severe).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 40% for the lower back 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 disc protrusion L5-S1 w/impingement of S1 nerve root on left associated w/neural foraminal stenosis condition (and the associated Category II conditions), the Board, by a majority vote, recommends a disability rating of 40% coded 5293 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; 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	
Disc Protrusion L5-S1 w/Impingement  of S1 Nerve Root on Left Associated w/Neural Foraminal Stenosis	5293	40%	
RATING	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130917, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			

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 8 Dec 14 ICO XXXXXXXXXXXXXXX
	 (c) PDBR ltr dtd 15 Dec 14 ICO XXXXXXXXXXXXXXX 
	 (d) PDBR ltr dtd 10 Dec 14 ICO XXXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 24 Dec 14 ICO XXXXXXXXXXXXXXX
       (f) PDBR ltr dtd 18 Dec 14 ICO XXXXXXXXXXXXXXX
       (f) PDBR ltr dtd 18 Dec 14 ICO XXXXXXXXXXXXXXX
	 (h) PDBR ltr dtd 12 Feb 15 ICO XXXXXXXXXXXXXXX
          
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. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 40 percent disability rating 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 40 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: Placement on the Permanent Disability Retired List with a disability rating of 40 percent effective date of discharge.

     f. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a disability rating of 40 percent effective date of discharge.

     f. XXXXXXXXXXXXXXX, former USMC: Disability separation with final disability rating of 20 percent (increased from 10%) 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.