RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-01533
BRANCH OF SERVICE:  marines	 SEPARATION DATE:  20050615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Fixed-Wing Aircraft Airframe Mechanic) medically separated for “recurrent versus residual right L5-S1 herniated nucleus pulpous” (HNP), rated 10%.  

CI CONTENTION:  The applicant makes no specific contention in his application.  His complete submission is at Exhibit A. 

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 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 20050303	VA* - ~2 Mos. Post-Separation  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Recurrent Versus Residual Right L5-S1 Herniated Nucleus Pulpous	5243	10%	Degenerative Disk Disease L5-S1	5243	40%	20050817	
Recurrent Right S1 Radiculopathy	Category II	Right Side Neuropathy 	8520	20%	20050817	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6	
RATING:  10%	COMBINED RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20060217 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Recurrent versus Residual Right L5-S1 Herniated Nucleus Pulposus Condition.  The record shows that the CI had low back pain (LBP) refractory to conservative treatment (medications, duty limitations and physical therapy) in 2002.  He then had a L5-S1 discectomy in January 2003 which was revised in July and September 2003.  After the 3rd procedure, he initially did well.  However, 4 months after the surgery, he had recurrent pain as well as numbness of the right lower extremity (RLE) and weakness in the calf muscle.  Fusion was discussed with neurosurgery, but the CI declined as he had already had 3 procedures.  A family practice note date 10 August 2004, 10 months prior to separation, noted that the pain and numbness were stable.  The CI had been able to increase his activity level though and could walk/jog 1.5 miles on a treadmill before he needed to stop from the pain.  As he was unable to meet full duty requirements, he was entered into the MEB process.  The narrative summary (NARSUM) was dated 23 September 2004, 9 months prior to separation and accomplished by the treating neurosurgeon.  The CI reported partial relief of his pain with Motrin.  He was on no other treatment for the back pain.  Incapacitation was not documented.  On examination, flexion was full at 90 degrees, but extension limited to 10 degrees due to pain.  Some atrophy of the left calf muscle was present as well as decreased sensation over the right lateral calf.  He could not accomplish toe raises on the right and the right gastrocnemius (calf) muscle had 4+/5 strength (slightly diminished).  (The Board recognized the inconsistency between the motor loss recorded on the right and the atrophy documented on the left.)  The ankle reflex was absent on the right.  Provocative testing for nerve root irritation was positive on the right.  An MRI showed right S1 nerve root impingement.  The possibility of another surgery, steroid injections, and another LIMDU were discussed with the CI who opted to pursue a MEB.  He was diagnosed with a recurrent or residual right L5-S1 HNP and a recurrent right S1 radiculopathy.  At the MEB examination on 10 November 2004, the CI reported chronic right thigh, knee, and calf pain.  The MEB physical examiner noted that the CI was tender over the lumbar spine and that the neurological examination was normal.  Also recorded was “touches mid-shin” implying forward flexion of over 60 degrees.  The commander noted on 8 February 2005, 4 months prior to separation, that the CI was working outside of his MOS and his function was impacted by his ongoing pain.  However, he could accomplish some (unspecified) tasks.  A C&P examination dated 3 March 2011 recorded that the CI had a desk job (on active duty).  A primary care noted dated 31 March 2005, 2 months prior to separation, documented that the CI had a “markedly altered gait” and decreased “strength of the R gastroc.”  At the VA Compensation and Pension (C&P) examination performed on 17 August 2005, 2 months after separation, the CI reported that his back pain began after he fell off of an airplane wing.  He did not use an assistive device and did not wear a back brace.  He reported that he was totally disabled from the LBP and could not drive over an hour.  However, the examiner recommended vocational rehabilitation, which implies that the CI was not “totally disabled.”  His pain was aggravated by walking too much or sitting too long.  Incapacitation was not documented.  He had to get out of bed carefully, but could do all his daily living needs.  On examination, he walked “gingerly” and had a mild antalgic gait (one abnormal due to pain) favoring the right side.  Paraspinal muscle spasm was present.  The range-of-motion (ROM) was limited by pain with flexion of 45 degrees and a combined ROM of 125 degrees.  The CI was unable to accomplish a heel-to-toe walk due to loss of sensation of the right foot and the antalgic gait.  Reflexes were normal on the left, but absent on the right.  He was noted to have a right L5-S1 neurological deficit, but specific comment on the pattern of sensory or motor loss was not made.  There are no additional records in evidence until a VA neurosurgical note dated 3 April 2007, almost 2 years after separation.  The CI reported recurrent left lower extremity (LLE) posterior numbness.  He used a rolling walker, but his heel gait was strong.  He was unable to toe gait though (walk on his toes).  Sensation was diminished in an S1 distribution bilaterally, right > left.  The right ankle jerk was absent, but the other reflexes normal.  Motor function was normal other than right plantar flexion (toes down), which was 4+/5 (slightly diminished).  However, an MRI showed no compression of the S1 nerve roots.  Muscle atrophy was not recorded.  A post-separation C&P dated 12 April 2010 recorded that the CI last worked in December 2008, but the occupation was not documented.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10% based on the limitation in motion recorded on the NARSUM examination, coded 5243 (intervertebral disc syndrome).  The PEB determined that a right S1 radiculopathy was a Category 2 condition (contributing to the unfitting condition, but not separately unfitting).  The VA, relying on the post-separation C&P examination, rated the back at 40% based on the overall disability picture, also coded 5243.  The VA also rated right side neuropathy at 20%, coded 8520 (paralysis of the sciatic nerve at the moderate level).  The Board first considered the back.  A 20% rating is supported by both the limitation in flexion as well as the abnormal gait in the presence of spasm.  The Board also considered VASRD §4.10 (functional impairment) and VASRD §4.40 (functional loss).  

The Board also considered if an unfitting radiculopathy was present at separation.  The NARSUM noted that the CI had decreased strength of the right lower leg and atrophy of the left calf.  However, a family practice note one month earlier had recorded that the CI could run/walk 1.5 miles at 5 mph before stopping due to pain.  The C&P recorded that the CI was able to do all daily living activities, but also noted that his gait was impaired from pain and his balance was impaired due to sensory loss of the right foot.  These findings were consistent with the NARSUM.  While it is clear that the CI suffered from a neurological deficit at separation, the evidence is not sufficient to overcome the PEB “not unfitting” adjudication.  The Board therefore determined that the evidence does not support a finding that a separately unfitting radiculopathy was present at separation.  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 radiculopathy 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 recurrent versus residual right L5-S1 herniated nucleus pulposus condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended recurrent right S1 radiculopathy condition, the Board unanimously recommends no change in the PEB adjudication as Category II.  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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Recurrent versus Residual Right L5-S1 Herniated Nucleus Pulposus 	5243	20%	
Recurrent Right S1 Radiculopathy	Category II	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140403, with attachments
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 21 Jan 16 ICO XXXXXXXXXXXXXX
(c) PDBR ltr dtd 07 Jan 16 ICO XXXXXXXXXXXXXX
	(d) PDBR ltr dtd 22 Jan 16 ICO XXXXXXXXXXXXXX
	(e) PDBR ltr dtd 11 Jan 16 ICO XXXXXXXXXXXXXX
(f) PDBR ltr dtd 19 Jan 16 ICO XXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (k) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXX, XXX XX XXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXX, XXX XX XXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge.

     c. XXXXXXXXXXXXXX, XXX XX XXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXX, XXX XX XXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     e. XXXXXXXXXXXXXX, XXX XX XXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) 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 complete.

	XXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)