RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00273
BRANCH OF SERVICE:  NAVY 	BOARD DATE:  20150709
SEPARATION DATE:  20040606

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Mineman) medically separated for back pain.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Rating.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The “right recurrent S1 radiculopathy” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated his back pain as unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  His condition continues to worsen and negatively impact his daily activities.  His complete submission is at Exhibit A.

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 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 20040330	VA* – Service Treatment Records (STR)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
HNP L5-S1 Status Post Microdiskectomy	5243	20%	Degenerative Changes L5-S1 with S1 Radiculopathy	5242	10%	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1	
RATING:  20%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20041008 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Back Condition.  Review of the service treatment record (STR) found that the CI underwent an L5-S1 discectomy in September 2001 for a history of low back pain associated with disc herniation and right S1 nerve root compromise.  Symptoms resolved post-operatively, but in 2002 right leg pain and numbness returned, and were associated with difficulty standing, walking, lifting or bending.

At a Pain Management evaluation on 20 September 2003 (8 months prior to separation) the CI complained of persistent low back pain with radiation to the right leg.  Examinations noted lumbosacral tenderness and pain-limited (but unmeasured) lumbar range-of-motion (ROM).  Bilateral straight leg raise (SLR) testing (a test for nerve root irritation) was negative.  Lower extremity neurologic findings were normal.  At the MEB exam on 11 February 2004 (4 months prior to separation) the CI reported low back pain, right lower extremity numbness, and pain secondary to radicular symptoms.  Physical exam noted full forward flexion but decreased lumbar rotation due to pain; actual measurements were not provided.  Muscle strength in the lower extremities was normal.

At the narrative summary (NARSUM) on 13 February 2004 the CI reported back pain associated with numbness and tingling in the right lower extremity.  He complained of weakness in the right knee and toes.  Examination showed a normal gait, a normal toe gait, and an ability to perform toe-raises on both left and right.  The exam was silent regarding lumbar spine ROM, spinal contour, spasm, guarding or tenderness.  Lower extremity neurologic findings included decreased sensation to light touch over the right posterior thigh, lateral calf and right side of the foot.  There was slight weakness of dorsiflexion of the great toe.  All other muscle strength was normal, and deep tendon reflexes (DTR) of the lower extremity was normal.  Bilateral SLR was normal.  The examiner reported that imaging studies showed evidence of recurrent L5-S1 disc herniation versus scar tissue and rendered a diagnosis of right recurrent S1 radiculopathy. 

At three primary care follow-up evaluations between January and April 2004, the CI complained of back pain, but not lower extremity or radicular symptoms.  An entry on 23 February 2004 reported lumbar flexion of “approximately 110 degrees.”

At the VA Compensation and Pension (C&P) exam on 3 December 2004 (6 months after separation) the CI reported back pain that radiated to the right foot and was associated with numbness of the lateral 3 toes.  His back could not tolerate heavy lifting, and he was going to school for retraining because “his back limits him in everything that he does.”  His functional limitation was mostly due to pain “and not weakness, fatigability, lack of endurance or lack of coordination.”  He could walk a mile, but would experience back pain after that distance.  He did not use a cane or brace.  There were no incapacitating episodes during the previous year.  Examination showed some muscle spasm, but no tenderness.  Gait and spinal contour were not described.  Lumbar flexion was 80 degrees (normal 90 degrees) and combined ROM was 180 degrees (normal 240 degrees).  Sensory examination and DTR’s of the lower extremities were normal, but there was global mild weakness of the right lower extremity associated with giveaway weakness.  The examiner rendered diagnoses of “history of radiculopathy secondary to herniated nucleus pulposus” and “discogenic back pain.”

At a second C&P exam on the same day the CI reported pain radiating to the right lower extremity associated with numbness and tingling.  The low back pain was described as functionally limiting.  Exam showed a normal gait, lower thoracic spine tenderness and “slightly decreased strength” of the right lower extremity.  Sensation and reflexes were intact.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under the 5243 code (intervertebral disc syndrome) while the VA assigned a 10% rating but used the 5242 code (degenerative arthritis of the spine).  The basis for the PEB’s rating was not clear, since there was no goniometric ROM in evidence prior to separation, and no other VASRD stipulations consistent with a 20% rating.  Board members agreed that there was sufficient evidence of painful motion to warrant a 10% rating IAW VASRD §4.59.  The C&P examination also supported a 10% rating for forward flexion greater than 60 degrees but not greater than 85 degrees, or combined ROM greater than 120 degrees but not greater than 235 degrees.  There was no evidence of muscle spasm or guarding severe enough to cause abnormal gait or spinal contour, and therefore a 20% rating was not justified on this basis.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet a minimal rating under that formula.  The Board concluded therefore that the evidence proximal to separation did not support a rating higher than the PEB’s 20% rating.

The Board finally considered if additional disability was justified for lower extremity radiculopathy.  It was noted that the NARSUM examiner rendered a primary diagnosis of right recurrent S1 radiculopathy, and the MEB submission specified only this diagnosis.  Examiners recorded variable complaints of right lower extremity symptoms that included pain, numbness and weakness.  The NARSUM examiner noted only a mild great toe weakness while other examiners noted normal muscle strength.  The mild “giveaway weakness” reported by the C&P examiner was inconsistent with neurologically mediated muscle weakness.  Board members considered that the presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI experienced some radiating pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Likewise, variable documentation of numbness had no functional implications.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  The Board concluded therefore that this condition could not be recommended for additional disability 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 HNP status post microdiskectomy 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 20130911, 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) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 20 Aug 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:

- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN