RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-02818
BRANCH OF SERVICE:  mARINE cORPs	Separation date:  20060531

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E3, Motor Vehicle Operator, medically separated for “low back pain without radiculopathy” with a disability rating of 10%.

CI CONTENTION:  The CI requested consideration of all conditions. The CI’s 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 Physical Evaluation Board (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 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 based upon a 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:  

SERVICE PEB - 20060327	VARD - 20070430	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain…	5299-5243	10%	Status Post Bilateral Laminectomy L4-5 with Partial Laminectomy S5-S1 and Laminectomy L3-4 with Loss of Use of Feet Due to Paraplegia	5241-5110	100%	20060516	
Lumbago	Cat II					
Myofascial Pain Syndrome	Cat II	Myofascial Pain Syndrome	5099-5021	NSC	20060516	
Disturbance of Skin Sensation	Cat II	Post Laminectomy Scar	7805	0%	20060516	
Hepatitis	Cat III	Hepatitis B	7345	40%	20060516	
		Hepatitis A	7345	NSC	20060516	
Hypertension	Cat III	Hypertension	7101	NSC	STR	
Adjustment Disorder	Cat IV	Adjustment Disorder with Depressed Mood	9434	100%	20060516	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  According to service treatment records (STRs) the CI’s low back pain without radiculopathy condition began as back spasm in February 2005 after physical training, although he denied any injury or trauma, and he had one episode of loss of bladder control when the back pain started.  However, a lumbar spine X-ray series dated 17 May 2005 noted the CI had recurrent LBP since being struck in the back with a pugil stick during a training exercise and his legs had gone numb the night before the X-rays, which revealed no evidence of a fracture or subluxation; however, a pars defect was seen in the right at L5-S1.  Numbness in the posterior thigh resolved on 18 May 2005, although flexion of the spine was limited to 45 degrees with pain.  The CI reported his legs went out for 30 minutes on 8 June 2005 despite treatment with physical therapy, Naprosyn (naproxen, a nonsteroidal anti-inflammatory drug (NSAID), and cyclobenzaprine (a muscle relaxer).  Magnetic resonance imaging (MRI) demonstrated a disc bulge at L4-5 adjacent to the right L5 nerve root, a moderate sized annular tear at L4-5, a disc bulge narrowing the neural foramina at L5-S1, a disc protrusion adjacent to the right S1 nerve root, and a disc protrusion adjacent to the exiting left L1 nerve root at the L1-2 level and in the left neural foramen at L1-L2.  The CI was restricted from physical activity and hydrocodone (a narcotic) was added to the treatment protocol.  At the Emergency Room on 14 July 2005 the CI reported approximately 4 episodes of urinary incontinence and an MRI demonstrated a disk protrusion at L5-S1 impressing on the S1 nerve roots, a disk bulge at L4-L5 adjacent to both L5 nerve roots, and an old coccygeal fracture dislocation or anatomic variation.  Neurosurgical evaluation on 15 July 2005 indicated the CI’s pain was most likely due to sacroiliitis with some possible component of L5-S1 radiculopathy with mild sensory decrease in the right foot.  Treatment consisted of a Medrol (methylprednisolone, a steroid), high dose ibuprofen (an NSAID), and strict bedrest.  By the 23 July 2005 at a neurosurgical evaluation the CI reported both bowel and bladder dysfunction and paresthesias in his legs, which prohibited him from walking or moving about freely.  He underwent surgery on 23 July 2005 and was noted to be neurologically stable at discharge, but he had postoperative pain.  The CI underwent postoperative rehabilitation and was noted to have no motor function in his knee extensors, knee flexors, foot dorsiflexors or plantar flexors.  At discharge on 26 August 2005 the CI was ambulating with a front wheeled walker with moderate assistance, but was unable to perform 12 step up to 4 inches, but he did display 8 minutes of standing.   Discharge diagnoses included L1 incomplete paraplegia with herniated disks L4-L5 and L5-S1, lumbar stenosis at L3-L4 status post laminectomy and discectomy, paralytic bladder, and neurogenic bowel. Discharge medications included amitriptyline (an antidepressant or for nerve pain), Keppra (levetiracetam, an anticonvulsant), OxyContin (oxycodone, a narcotic), Zanaflex (tizanidine, a muscle relaxer), trazodone (an antidepressant and sedative), and acetaminophen (a pain reliever).  An MRI revealed post-surgical changes and a disc bulge adjacent to the L5 nerve roots and moderate sized disk protrusion at L5-S1 with granulation tissue around the left S1 nerve root and a lateral disk bulge at L5-S1 adjacent to the exiting left L5 nerve root.  The CI underwent inpatient spinal rehabilitation and had variable ability to use his legs requiring use of a wheelchair, had newly diagnosed hepatitis (see below), and no evidence of bowel or bladder dysfunction, although he had rare instances of urinary incontinence.  Extensive MRI evaluations including the lumbar, thoracic, cervical, and the brain were all essentially normal and an EMG was normal except for a left L4-5 nerve root irritation.  However, it was unclear of the etiology of the paraplegia, which on discharge from the rehabilitation on 17 October 2005 was diagnosed as “lower extremity paresis without physiologic evidence of the etiology.”  

At the MEB examination (recorded on DD Forms 2807 and 2808) in October 2005, 7 months prior to separation, the CI reported intense pain and no usage of his legs with numbness and tingling and loss of sensation of the toes. He used a wheel chair and had occasional urinary and bowel incontinence.  Physical examination showed a well-healed lumbar surgical scar with normal alignment of the spine.  There was a variable sensory deficit, usually T10 or L1, but he had a reported loss as high as T5.  There was a variable lower extremity motor loss, but he demonstrated hip flexion and long toe extension sporadically. Some functional activities indicated muscle contraction, but the CI was unable to elicit voluntary contraction of individual leg muscles or contraction with electrical stimulation.  There was no significant loss of muscle bulk or fasciculation and reflexes were normal.  After the study he stood using his own strength.

In January 2006 it was noted the CI “suffered loss of use of the legs” and had “to catheterize his bladder.”  He was referred to pain management for the chronic back pain.  Electrodiagnostic (nerve conduction and EMG) studies in February 2006 revealed no evidence of myopathy or radiculopathy.  A neurological evaluation summary on 10 March 2006 indicated the CI continued to complain of bilateral leg weakness and examination revealed paraplegia with bilateral lower extremity muscle spasticity and sensory loss with brisk deep tendon reflexes of the bilateral lower extremities.  The assessment was paraplegia due to possible spinal cord injury, muscle spasms, lumbar herniated nucleus pulposus, lumbar radiculitis, and neuropathic pain; medication for pain and spasticity (baclofen) were to be continued.

At the VA Compensation and Pension (C&P) examination dated 16 May 2006, performed 15 days before separation, the CI reported numbness in his legs, bladder dysfunction with a pad needed 8 times a day, bowel dysfunction with a pad needed 2 times a day, and pain in the lower back for 9 months, which he rated at 10/10.  He had 10 incidents of incapacitation for a total of 30 days over the prior year.  On examination his posture was abnormal; he was in a power chair because of paraplegia without tender points or generalized muscle wasting.  There was no evidence of radiating pain on movement; muscle spasm was absent; straight leg raising (to determine nerve root irritation) was negative bilaterally; no ankylosis was present; range of motion (ROM) of the thoracic spine could not be examined due to paraplegia and mental status; and there were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.  The VA diagnoses were L1 incomplete paraplegia, neurogenic bowel, neurogenic bladder and status post bilateral laminectomy L-4-5 with partial laminectomy L5-S1 and limited laminectomy L3-4 with scar.  At a VA examination in December 2008, 31 months post separation, the CI’s ROM was normal, but there motor and sensory deficits of the lower extremities bilaterally.  

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)	VA C&P 15 Days Post-Sep
	
Flexion (90 Normal)	Could not be examined due to “paraplegia and mental status”	
Extension (30)		
R Lat Flexion (30)		
L Lat Flexion (30)		
R Rotation (30)		
L Rotation (30)		
Combined (240)	-	
Comment	No evidence of radiating pain on movement; muscle spasm absent; no tenderness	
§4.71a Rating	-	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5299-5243 code (intervertebral disc syndrome).  The Navy PEB also listed lumbago, myofascial pain syndrome and disturbance of skin sensation as related Category II conditions (conditions that contributed to the primary unfitting condition but were not separately ratable).  The impairment from the lumbago, myofascial pain syndrome and disturbance of skin sensation were properly subsumed under the overall rating for the low back pain without radiculopathy IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  The VA assigned a 100% rating using code 5241-5110 (spinal fusion-loss of use of both feet) for status post bilateral laminectomy L4-5 with partial laminectomy L5-S1 and laminectomy L3-4 with loss of use of feet due to paraplegia (with a future examination in July 2007) and a 0% rating using code 7805 for a post laminectomy scar, which is not in the scope of review. The VA also assigned a 100% rating using code 7332 (Rectum and anus, impairment of sphincter control) for a neurogenic bowel (with a future examination in July 2007) and a 60% rating using code 7542 (neurogenic bladder) for a neurogenic bladder (with a future examination in July 2007).    

Board members discussed the PEB’s rating and noted that paraplegia of the lower extremities was not addressed as a diagnosis, although a neurological examination of 10 March 2005 noted paraplegia but the etiology was unclear and electrodiagnostic testing was normal except for L4-5 nerve root irritation.  Nevertheless, the diagnosis of paraplegia was supported by the VA examination, which was performed 2 weeks prior to separation.  Therefore, Board members considered alternative rating options to take into consideration the CI’s back pain and paraplegia, for which there is no explicit VASRD code, and the residuals related to the paraplegia.  Use of code 5243 offers a 40% rating since the VA examination indicated the CI had incidents of incapacitation of 30 days in the prior year, but also noted there was no evidence of the intervertebral disc syndrome with chronic or permanent nerve root involvement.  A rating based on ROM is not applicable since the record did not have measurements on which to base a rating.  While the VA rating indicated the CI did have loss of the use of his feet, he nevertheless was able to stand and walk with a wheeled walker on several occasions, although he did predominately use a powered wheelchair, but did have documented findings of spasticity, sensory loss, and MRI findings at L5-S1.  Therefore, use of code 5241-5110 is not an unreasonable consideration, although the phrase “loss of use of both feet” is vague since it does not address temporary versus permanent or the extent of the loss whether partial or complete.  However, the fact that CI walked, albeit with assistance, speaks against its use in the absence of sufficient objective medical evidence.  However, the CI did have weakness of the lower extremities although it was not clear whether it was neurological (and if so, whether or which lumbar and/or sacral nerves were involved), muscular, or another etiology not determined especially in the presence of normal electrodiagnostic testing.  The CI did report episodes of urinary incontinence, but the STR did not provide details of the frequency or the wearing of absorbent materials, but the VA did note pad usage eight times a day, although the CI catheterized his bladder thereby raising a consideration of a rating option, which Board members discussed.  However, there was insufficient evidence of bowel incontinence to justify an additional rating.  

Alternatively, the Board then considered whether an additional rating could be recommended under a peripheral nerve code.  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 a sensory component with functional implications; motor weakness was in evidence; and bladder incontinence was noted more so at the VA examination rather than during hospitalization and rehabilitation.  Therefore, a radiculopathy could be recommended for additional disability rating. 

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the low back pain condition, coded 5299-5243 and a rating of 20% for moderate sciatica, coded 8520.  

Contended PEB Conditions: Hepatitis, Hypertension, and Adjustment Disorder.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the low back pain condition, the Board unanimously recommends a disability rating of 40%, coded 5299-5243 IAW VASRD §4.71a and a disability rating of 20% for moderate sciatica, coded 8520.  In the matter of the contended hepatitis, hypertension, and adjustment disorder conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain 	5299-5243	40%	
Sciatica	8520	20% 	
COMBINED	50% 	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140529, 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 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 29 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 12 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 28 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 12 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 12 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX

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. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.  

     b. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 10 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by transfer to the Permanent Disability Retired List with a final disability rating of 30 percent. 

     d. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge. 

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by transfer to the Permanent Disability Retired List with a final disability rating of 30 percent.
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

     f. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.  

     g. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 10 percent) effective date of discharge.

     h. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.

     i. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 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.