RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03184
BRANCH OF SERVICE:  MARINE CORPS 	date of SEPARATION:  20080101

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6, Radio Chief, medically separated for “degenerative disc disease (DDD) L2-3,” rated at 10%. 

CI CONTENTION:  His condition continues to worsen and negatively impacts 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.  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 confined to 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 - 20070711	VARD - 20081015   	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DDD L2-3	5242	10%	Low Back DDD	5243	10%	20080402	
Lumbar Radiculopathy; Currently Resolved	Category III	Left Leg Radiculopathy, … Foot Drop	8520	NSC		
Herniated Nucleus Pulposus with Nerve Compression L4-5		No VA Placement	
COMBINED RATING:  10%	COMBINED RATING FOR ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:    

Degenerative Disc Disease L2-3.  The Medical Evaluation Board (MEB) narrative summary (NARSUM) dated 2 March 2007, noted the CI had intermittent low back pain for years that was exacerbated when he was knocked off his feet while playing combat soccer and landed on his back.  As a result he had immediate lumbar region pain and muscle spasm.  Conservative therapy with stretches, nonsteroidal anti-inflammatory drugs (NSAIDS), and modified activity provided temporary relief until he bent over to pick up an object and had sudden onset of back pain and complete left leg paresthesia.  An X-ray series revealed Grade I spondylolisthesis (a vertebra slips forward onto the vertebra below it) without spondylolysis (a defect in the vertebra), while an MRI showed degenerative disc disease at L2-L3 and a broad based disc herniation at L4-5 with nerve compression.  Treatment consisted of physical therapy from October to December 2005.  Back pain and radicular symptoms persisted, which were treated with epidural steroid injections in December 2005 and January 2006.  In February 2006, a note indicated resolving left L4 radiculitis, an L2 pars defect (defect of the vertebra, usually L5) and fracture and L5 left sacralization.  Because pain persisted he was evaluated by an orthopedic spine surgeon, who opined that he would not likely respond to surgical management.  The CI obtained a second opinion and was again advised he was not a surgical candidate.  He was then treated with tramadol (an opioid-like medication) and meloxicam (an NSAID).  The left leg radicular pain persisted and he underwent electrodiagnostic studies in November 2006, the results of which were felt to be within normal limits.  Evaluation on 22 January 2007 indicated the CI had some intermittent left leg pain in what appeared to be the L4 pattern.  On examination he had stable motor and sensory function of the lower extremities.  He was placed on limited duty and after another evaluation the CI again was determined not to be a surgical candidate.  He had recurrent periods of lumbar back pain, spasms, and left leg radicular pain with associated foot drop and had difficulty with sitting for long periods of time, bending over, and lifting heavy objects.  His left leg frequently felt numb and weak when the back pain increased.  The NARSUM concluded the CI was able to perform his duties in a limited capacity, but the recurrent back pain and radiculopathy limited his mobility.

The CI was placed on LIMDU (limited duty) on 14 December 2006 for L4-L5 HNP and sciatica with limitations of no PRT (physical readiness training), no forced marches, and no deployments.  The non-medical assessment dated 21 February 2007 indicated all rehabilitative efforts had been unsuccessful in alleviating the CI’s pain, which resulted in his inability to perform to a physical level commensurate with his grade and occupational specialty.  He was not deployable and his role in providing tactical telephone and radio support in a harsh combat environment was severely hindered by his medical condition.  At the MEB examination, the CI reported on DD Form 2807-1 dated 24 October 2007 he was being separated for a ruptured disc in the lumbar region; he had arthritis all over the area; and his left leg got numb from nerve compression from ruptured discs.  The MEB physical examiner checked normal for the spine and neurologic on the clinical evaluation section on DD Form 2808 and listed L4-L5 DDD as the diagnosis.   

At the VA Compensation and Pension (C&P) examination dated 2 April 2008, performed 3 months after separation, the CI reported lumbar spine pain started in 2003, which occurred one time a week that lasted up to all day at the time of the examination.  He had no numbness or weakness with the pain, no incontinence, no erectile dysfunction, and no physician directed bed rest in the prior year.  He was unable to lift more than 50 pounds, unable to walk more than 2 miles, unable to stand more than 30 minutes, and unable to sit more than 30 minutes.  He had left foot drop that was associated with his back pain, but had no problems with it at the time of the VA examination.  He had some nerve damage to the top of the left foot from a puncture and had pain if he touched or bumped the area for a short period.  He did not use a brace, cane, or crutch and had no functional limitation unless he had pain.  On examination he walked with a normal gait and posture and used no assistive devices.  Neurological evaluation was unremarkable with normal sensation and no atrophy.  The lumbar spine curvature was normal and there was no tenderness to palpation of the spine or paraspinal processes and there were no spasms.  He had no pain in his back on straight leg extensions bilaterally.  ROM measurements were right and left lateral flexion to 30 degrees with pain at 30 degrees, extension to 30 degrees with pain at 30, forward flexion to 90 degrees with pain at 90 degrees, and right and left rotation to 45 degrees with no pain. There was no loss of motion or function with the movements (DeLuca negative).

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)	PT ~15 Mo. Pre-Sep
	PCC ~13 Mo. Pre-Sep
	PT ~8 Mo. Pre-Sep
	Peds ~6 Mo. Pre-Sep
	VA C&P ~3 Mo. Post-Sep
	
Flexion (90 Normal)	“Normal”	“Normal”	“Touch floor w/ fingers”	“Level of Malleoli”	90*	
Extension (30)	“Abnormal”	--	“Normal”	--	30*	
R Lat Flexion (30)	“Normal”	--		“Reduced due to pain”	30*	
L Lat Flexion (30)	“Abnormal”-	--			30*	
R Rotation (30)	“Abnormal”	“Normal”		“Normal”	30 (45)	
L Rotation (30)	--	“Normal”			30 (45)	
Combined (240)	-	-	-	-	240	
Comment	No swelling; tenderness on palpation; no lordosis	No muscle spasm; no pain on motion; straight-leg raising negative	Normal posture; straight leg raising bilaterally negative	Burning pain in left buttock radiated down to back of foot; difficulty lifting right foot; electrodiagnostic studies –compression, but not permanent injury; no muscle spasms; straight leg test negative	DeLuca negative; no tenderness to palpation; no spasm; negative straight leg raising; *pain at the end of motion	
§4.71a Rating	-	-	-	PEB 10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The Navy PEB on reconsideration assigned a 10% rating using code 5242 (Degenerative arthritis of the spine) for the Category I (unfitting condition) degenerative disc disease L2-3.  It assigned lumbar radiculopathy; currently resolved and herniated nucleus pulposus with nerve compress L4-5 as Category III (conditions that are not separately unfitting and do not contribute to the unfitting condition).  The VA assigned a 10% rating using code 5243 (Intervertebral disc disease) for low back degenerative disc disease.  In the absence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, a diminished ROM, ankylosis or incapacitation, the Board was unable to find a way to a higher rating.  Since the PEB determined lumbar radiculopathy and herniated nucleus pulposus with nerve compression at L4 to be Category III conditions, they are addressed below.  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 Category I degenerative disc disease L2-3 condition.  

Contended PEB Conditions-Navy Category III Lumbar Radiculopathy; Currently Resolved and Herniated Nucleus Pulposus with Nerve Compression L4-5.  The Board’s main charge is to assess the fairness of the PEB’s determination that lumbar radiculopathy; currently resolved and herniated nucleus pulposus with nerve compression L4-5 were not unfitting.  The conditions were noted in the LIMDU, were not explicitly implicated in the commander’s statement, but were referred to as pain and inability to perform to a physical level commensurate with his grade and MOS and were determined to be Category III (Conditions that are not separately unfitting and do not contribute to the unfitting condition(s)).

The details related to the conditions were reviewed above in concert with the Category I condition.  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; however, the NARSUM clearly referred to recurrent periods of lumbar back pain, spasms, and left leg radicular pain with associated foot drop.   The CI’s left leg frequently felt numb and weak when the back pain increased.  The NARSUM concluded recurrent back pain and radiculopathy limited his mobility.  Therefore, the Board considered and discussed the use of code 8520 (Incomplete paralysis sciatic nerve) while cognizant that the electrodiagnostic studies were normal, although an MRI mentioned compression, but not permanent injury.  The CI had radiculopathy manifesting as intermittent foot drop, which had not resolved completely by the time of the separation, albeit it was intermittent, and the radiculopathy occurred as a result of nerve compression from the herniated nucleus pulposus, which was confirmed by MRI.  There was performance based evidence from the record that both of the conditions significantly interfered with satisfactory duty performance intermittently.  After a long discussion and due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of lumbar radiculopathy and herniated nucleus pulposus with nerve compression favors the recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 8520 and meets the VASRD §4.124a criteria for a 10% rating for a mild radiculopathy, but did not rise to a 20% level for a moderate radiculopathy. 

BOARD FINDINGS:  In the matter of the degenerative disc disease L2-3 condition, the Board unanimously recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a.  In the matter of the lumbar radiculopathy and herniated nucleus pulposus with nerve compression L4-5 conditions, the Board majority recommends a disability rating of 10%, coded 8520 IAW VASRD §4.124a.  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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Degenerative Disc Disease L2-3	5242	10%	
Lumbar Radiculopathy and Herniated Nucleus Pulposus L4-5	8520	10%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140708, 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 12 Apr 16 ICO XXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 12 Apr 16 ICO XXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 12 Apr 16 ICO XXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 12 Apr 16 ICO XXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 9 Apr 16 ICO XXXXXXXXXXXXXXX 
	(g) PDBR ltr dtd 12 Apr 16 ICO XXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 1 Apr 16 ICO XXXXXXXXXXXXXXX 

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

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

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

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

     c. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge. 

     e. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

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

     g. XXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 10%) effect 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.