RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX 	CASE:  PD-2014-01388	
BRANCH OF SERVICE: NAVY 	 SEPARATION DATE:  20090515

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty MMFN/E-3 (Machinist Mate Fireman) medically separated for a back condition. The back condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty [LIMDU] twice and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “displacement of lumbar intervertebral disc w/o myelopathy”, was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded tobacco use disorder.  The Informal PEB adjudicated “chronic low back pain” as Category I:  unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The PEB further adjudicated status post L5-S1 microdiskectomy as a Category II condition, one that contributes to the unfitting condition, and tobacco dependence as a Category IV condition, one that does not constitute a physical disability.  The CI made no appeals, and was medically separated.  

CI CONTENTION: His condition has impacted his ability find meaningful employment.  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:  
   
Service IPEB – Dated 20090313	VA - (3 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Lumbar Strain S/P Herniated  Disc Surgery, w/Radiculopathy and Scar	5237	20%	20090224	
S/P L5-S1 Microdiskectomy	Category II					
		Sciatica of the LLE	8620	10%	20090224	
Other x 1 (Not in Scope)	Other x 3	20090224	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20090821 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  The earliest note in the service treatment record (STR) dated 5 November 2007 indicated the CI had a week-long history of low back pain (LBP) without a MOI (mechanism of injury).  He had pain over the left gluteal muscles (buttock) with radiating symptoms and numbness down the posterior leg and all five toes.  The CI rated the pain severity as 7/10 and 10/10 with forward flexion and prolonged sitting.  The CI was placed in SIQ (sick in quarters) status for 2 days and was given exercise instructions to alleviate the pain.  By 9 November 2007 he had an antalgic gait, but no bowel or bladder symptoms.  A pain management note dated 6 March 2008 indicated the onset of pain occurred a short while after lifting a heavy object (a line shaft bearing) overhead, which involved a twisting motion, while at work aboard ship.  Treatment with physical therapy did not resolve the pain and the CI noted some left foot “clumsiness” and tripped several times.  An MRI in December 2007 showed a left L5-S1 paracentral disc extrusion with impingement of the S1 nerve root.  There was tenderness on palpation of the lumbosacral spine with pain on flexion and extension throughout the range-of-motion (ROM), which was limited.  A straight leg raise test (to determine nerve root irritation) was positive on the right and left.  The sacroiliac region was normal and there was decreased response to pain and temperature stimulation on the left lateral leg and foot.  Heel walking and toe walking were abnormal and a left-sided antalgic gait was present.  Treatment with gabapentin (for nerve pain), Robaxin (methocarbamol, a muscle relaxer), Oxycontin (oxycodone, a narcotic), tramadol (an opioid-like medication), and celecoxib (a nonsteroidal anti-inflammatory drug (NSAID)) were instituted.  An epidural steroid injection at the L5-S1 level was given on 18 March 2008, and according to a note dated 23 April 2008, a second injection was given without relief.  

The MEB narrative summary (NARSUM) dated 12 February 2009 noted the CI underwent a microdiskectomy in June 2008 after conservative therapy did not afford relief.  The CI’s postoperative course was uneventful; however, his back pain persisted despite resolution of his left-side radicular symptoms.  The CI described his constant pain greater than 6/10 and it did not radiate.  Additionally, he denied numbness or weakness of his legs.  Working out on big balls and doing stretching exercises tended to make his symptoms better.  On examination the CI had a normal gait, sat comfortably in a chair, and was able to heel walk and toe walk without balance issues.  His back appeared normal.  ROM measurements were normal (see chart below).  He had pain at the extreme of forward flexion, but had no radicular symptoms down his legs.  Motor and sensation were intact and normal; neurological evaluation was unremarkable.

At the MEB examination dated 13 February 2009, the CI reported on the DD Form 2807-1, back pain and numbness from the back injury and trouble sleeping because of back pain.  The MEB physical examiner noted on the DD Form 2808 a surgical scar L5/S1 and left leg numbness.  The non-medical assessment (NMA) dated 25 February 2009 indicated the CI had been assigned to an office so that he could obtain on-going rehabilitation.  He was limited from lifting over 35 pounds; and, the NMA author could not foresee the CI regaining the ability to return to work in his rate, which required use of heavy equipment and lifting more than 35 pounds.  The CI’s first LIMDU was dated 18 March 2008 for L5-S1 disc herniation with left lower extremity sciatica and the second LIMDU was dated 12 August 2008 for left L5-S1 paracentral disk herniation and low back pain with restrictions of no sea, ship or overseas duty, no heavy lifting or prolonged standing, and no physical fitness training (PFT) or performing the personnel fitness assessment (PFA).   

At the VA Compensation and Pension (C&P) examination dated 24 February 2009, performed 3 months before separation, the CI reported stiffness and numbness from his spine condition S/P lumbar surgery secondary to a herniated disc with constant pain at 7/10 elicited either by physical activity and stress or even spontaneously. He took Tylenol (acetaminophen, a pain reliever) for the pain and reported 1 day of incapacitation in June 2008.  On examination there was no evidence of radiating pain on movement and muscle spasm was absent.  Left lumbar tenderness was present and straight leg raise was negative.  There was symmetry of spinal motion with normal curves of the spine and no ankylosis.  There were sensory deficits in the sciatic nerve (L4 and L5) distribution of the left lower extremity, but no lumbosacral weakness.  Lower extremity reflexes were normal and there was no bowel, bladder, or erectile dysfunction. 

The 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)	MEB ~3 Mo. Pre-Sep
	VA C&P ~3 Mo. Pre-Sep
	
Flexion (90 Normal)	90	(50) 52	
Extension (30)	30	30	
R Lat Flexion (30)	30	30	
L Lat Flexion (30)	30	30	
R Rotation (30)	30	30	
L Rotation (30)	30	30	
Combined (240)	240	200	
Comment	Pain at the extreme of forward flexion, but no radicular symptoms	Pain at 52 degrees flexion and 30 degrees left lateral flexion; DeLuca negative	
§4.71a Rating	PEB 10%	VA 20%	

The Board directed attention to its rating recommendation based on the above evidence.  The Navy PEB assigned a 10% rating using code 5237 (lumbosacral strain) for the Category I condition chronic low back pain and determined status post L5-S1 microdiskectomy to be a related Category II condition, which contributed to the Category I unfitting condition.  Tobacco dependence was determined to be a Category IV condition, which did not constitute a physical disability.  The VA assigned a 20% rating using code 5237 for lumbar strain status post herniated disc surgery with radiculopathy and scar.  The Board sought a route to a higher rating, but was unable to so in the absence of ankylosis, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or a longer period of incapacitation.  However, the Board did note the VA examination of ROM for flexion was diminished in the same time frame as the MEB examination.  However, the STR was silent on any intervening events that might explain the diminution, but it was noted that the CI was only taking Tylenol at the time of the VA examination rather than the more potent medications for pain and muscle spasm he had been prescribed and took in 2008.  The Board discussed the probative value of the MEB and VA examinations and agreed that the VA examination findings were not unreasonable in the absence of potent medication or therapy to ameliorate the pain.  However, Board members then critically reviewed the record, but could not find credible medical evidence to explain the flexion decrement, so close in time with the MEB examination, with otherwise normal ROMs. Additionally, it was noted that the CI had been likewise taking Tylenol during the time frame of the MEB examination apparently without any of the more potent medications taken previously. The Board then considered whether an additional rating could be recommended under a peripheral nerve code.  Functional impairment linked to fitness is required to support a recommendation for addition of a peripheral nerve rating to disability in spine conditions.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed 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,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.  The Board agreed with the Navy PEB that the Category II condition status post L5-S1 microdiskectomy contributed to the Category I condition and is not separately unfitting or ratable and the Category IV condition, tobacco dependence, does not constitute a physical disability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic low back pain 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 low back pain 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 20140317, 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 6 Jan 16

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

				 XXXXXXXXXXXXXXX
	     			 Assistant General Counsel
				 (Manpower & Reserve Affairs)