RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03487
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20030404

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E3, Electrical/Mechanical Equipment Repairman, medically separated for “low back herniated disc disease,” with a disability rating of 20%.  

CI CONTENTION:  “Please consider all condition.”  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 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 - 20021220	VARD - 20030919	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Herniated Nucleus Pulposus L4-5, Right	5293	20%	Spinal Stenosis and Degenerative Disc Disease at L4-5	5293-5292	20%	20030815	
Positional Thoracolumbar Scoliosis	Not Unfitting 
Cat II	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Herniated Nucleus Pulposus (HNP) L4-5, Right.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in October 2001 due to a fall while running.  The CI reported LBP that radiated to the right lower extremity (RLE) and he was noted to have an antalgic stance with a list to the left with muscle spasm.

Radiographic studies performed in 2001 showed a moderate curvature of the thoracolumbar (TL) spine and scoliosis.  The CI was evaluated by orthopedics in November 2001 and diagnosed with an HNP and an MRI was recommended.  An MRI performed on 28 November 2001 showed an HNP at L4-L5 with narrowing of the exiting L5 nerve roots bilaterally.  The CI was placed on limited duty (LIMDU) and underwent three epidural steroid injections (ESI) without relief.  Repeat MRI in April 2002 showed degenerative disc and spine disease (DDD, DJD) with an HNP to the right at L4-L5.  The CI was referred for orthopedic evaluation to provide an assessment of the CI’s abnormal spinal curvature and at the evaluation on 11 July 2002, the CI reported LBP.  On examination there was “an obvious shift of the entire trunk to the left” at the lumbosacral junction, with “obvious” muscle spasms on the right from lower thoracic levels to lower lumbar levels and the CI was noted to move with obvious discomfort during the examination.  He was able to heel and toe walk.  Lower extremity strength and reflexes were normal.  Sensation was not assessed.  Multiple examination maneuvers to elicit radicular symptoms were positive bilaterally.  The examiner’s assessment was that there was no structural scoliosis and that the CI’s list was “clearly a functional curve and trunk shift related to nerve root irritation” from the HNP.  Surgery was recommended, but the CI declined, which was felt to be reasonable.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “positional thoracolumbar scoliosis, secondary to herniated nucleus pulposus L4-5, right” for PEB adjudication.  

At the MEB NARSUM examination on 09 August 2002, 8 months prior to separation, the CI reported LBP and episodic RLE pain with “tingling.”  He reported pain was predominately in the lower back (85%), rather than the right leg (15%).  On examination, there was a slight antalgic gait with an abnormal spinal contour (list to the left side).  Back ROM was 30 degrees of flexion and lateral flexion and rotation were “limited by approximately 50%” bilaterally.  There was “slight” weakness of dorsiflexion of the RLE and “slight” sensory deficit involving the L5 nerve root distribution.  Reflexes were normal.  Straight leg raise testing was positive on the right.

At the 15 August 2003 VA Compensation and Pension (C&P) spine examination, 4 months after separation, the CI reported daily LBP that radiated into the RLE, with numbness of the RLE “most of the day.”  The CI reported “four to five times a day his body will jerk and the pain will flare up.” The CI denied bowel or bladder problems or other neurological symptoms.  On examination there was an “essentially normal” gait, without use of crutches, brace, or cane.  Back ROM was flexion of 15 degrees and extension of 10 degrees, and near normal bilateral lateral flexion and rotation, with all motions causing pain.  Lower extremity strength was 4/5 bilaterally.  There was “no sensation felt in the right foot,” but sensation of the LEs was otherwise normal and reflexes were normal.  Lumbar MRI in May 2003 reportedly showed DDD and spinal stenosis at L4-L5.  

A VA C&P Peripheral Nerves examination on 24 October 2003, 7 months after separation, was performed by the same VA examiner who performed the earlier spine C&P examination to provide a medical opinion as to whether the diagnosed peripheral neuropathy was related to the service connected spine condition.  The examination showed “decreased sensation down the typical dermatomes of L4-5” of the RLE, with normal reflexes.  The examiner’s assessment was “peripheral neuropathy directly related to the service connected L4-L5 herniated nucleus pulposus.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the “herniated nucleus pulposus” condition 20%, coded 5293 (Intervertebral disc syndrome- IDS).  The PEB also adjudicated “positional thoracolumbar scoliosis related to diagnosis #1” as a Category II condition (conditions that contribute to the unfitting condition).

The VA also rated the low back condition 20% coded 5293-5292 (IDS-lumbar spine limitation of motion), citing “moderate” limitation of motion of the lumbar spine, based on the C&P Spine examination 4 months after separation.  The VA Rating Decision 10 November 2003 rated the right lower extremity radiculopathy 10%, coded 8520 (sciatic nerve), citing “mild” incomplete paralysis” of the sciatic nerve based on the C&P Peripheral Nerves examination 7 months after separation.

The Board must provide a rating recommendation for the CI’s low back condition based on the VA rating guidelines in effect on the date of separation.  According to VARSD §4.71a rating rules for the spine in effect on the date of separation, under 5293 IDS may be rated either based on incapacitating episodes, defined as a period of acute signs and symptoms due to IDS “that requires bed rest prescribed by a physician” or provided separate ratings for chronic orthopedic and neurologic signs due to IDS that are “present constantly, or nearly so.”  In this case there is no evidence of incapacitating episodes as defined above to warrant consideration of the first rating approach.  Therefore, the Board alternatively considered the rating based on the “chronic orthopedic and neurologic manifestations” of IDS.  There was evidence of “moderate” limitation of lumbar motion for 20% rating, coded 5292.  Member consensus was that the lumbar limitation of motion at the MEB NARSUM and C&P Spine examination was best characterized as “moderate” and not “severe”.  

The Board next considered if an additional rating for peripheral neuropathy was warranted under the VASRD 5293 rating criteria in effect at the time.  The CI was diagnosed with peripheral neuropathy related to the IDS, with physiologic sensory deficit and mild weakness of the RLE.  Following the ESI, the CI reported improvement in the RLE symptoms.  However, chronic muscle spasm causing an abnormal stance was attributed to nerve root irritation by the orthopedic specialist in July 2002 and at the MEB NARSUM and C&P examinations, decreased strength and sensation of the RLE were noted, as well as decreased sensation at the later C&P peripheral nerves examination (which did not address strength).  The Board concluded that this was sufficient evidence of a chronic neurologic manifestation of the IDS of RLE radiculopathy, that was present “constantly, or nearly so” with separate functional implications for the performance of military duties.  Therefore, the Board recommends an additional rating of 10%, coded 8520, as specified by the VASRD spine rules under for rating IDS (5293) at that time.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating for the IDS condition as follows: a 20% rating for lumbar limitation of motion, coded 5292 and a 10% rating for peripheral neuropathy due to IDS, coded 8520, combined IAW §4.25 for a 30% rating.  

BOARD FINDINGS:  In the matter of the herniated nucleus pulposus condition, the Board unanimously recommends disability ratings of 20% coded 5292 IAW VASRD §4.71a and 10%, rating coded 8520 for right lower extremity radiculopathy 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; 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	
Herniated Nucleus Pulposus L4-5, Right	5292	20%	
Right Lower Extremity Radiculopathy	8520	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140702, 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 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 22 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 12 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 26 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX

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

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

     a. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 0 percent) effective date of discharge.

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

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

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

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

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

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

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

     i. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 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.

	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)