RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04156
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20050701

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Gunner’s Mate, medically separated for “herniated nucleus pulposus, L5-S1,” with a disability rating of 0%.

CI CONTENTION:  “Please consider 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 on 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 - 20050425	VARD - 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Herniated Nucleus Pulposus, L5-S1	5243	0%	Low Back Injury	5243	10%	20050622	
Lumbar Spine Degenerative Disc Disease with Mild L5/S1 Herniation	Cat II	No VA Placement	
Bilateral S1 Radiculitis			
Chronic Mechanical LBP			
Obesity	Cat IV		
Poor Physical Conditioning			
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Herniated Nucleus Pulposus (HNP) L5-S1.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in September 2003 after lifting weights while activated for annual training.  A lumbar spine MRI in October 2003, showed a bulging disc in the lower back (L5-S1) with minimal displacement of the SI nerve root.  The CI was evaluated and no acute surgery was indicated.  He participated in 4 weeks of physical therapy (PT) with little benefit and reported worsening low back pain (LBP) with right lower extremity (RLE) pain.  A repeat MRI in January 2004, reported similar findings at L5-S1 and noted a disc bulge at L4-L5 that did not cause significant spinal stenosis.  At a neurology consult on 8 March 2004, the CI reported LBP with numbness of the bilateral thighs as well as RLE numbness and weakness, and that he had a 40-pound weight gain since his injury.  He had an antalgic gait and was using a cane.  The neurologist recommended continued PT and weight loss.  Physical therapy was discontinued in April 2004 after the CI did not attend several appointments.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for a MEB.  The MEB forwarded “lumbago” and “degeneration of intervertebral disc, site unspecified” for PEB adjudication.  

The MEB narrative summary (NARSUM) on 25 June 2004, (12 months before separation), documented complaints of persistent LBP, as well as occasional radiating pain and numbness into the RLE.  The CI denied bowel or bladder symptoms.  Physical examination was not performed, but instead, findings of previous evaluations were cited.  

At primary care visits from July to November 2004, the CI was noted to have an antalgic gait with the use of a cane; at some visits, muscle spasms were noted with abnormal spinal contour.  Range of motion (ROM) was variable and documented on serial examinations as “decreased” with spasm, full ROM without muscle spasm, and decreased flexion by 65% with spasm.  At a neurosurgery evaluation on 9 November 2004, (requested for the MEB), 8 months before separation, the CI complained of LBP as well as radiating pain to both lower extremities.  Physical examination found “decreased ROM,” normal neurologic examination, and tenderness in the lower back.  Spasm was absent while provocative testing for nerve root impingement was positive.  The CI was able to rise normally from a seated position and had a normal gait, heel-toe walk, and tandem gait.  The examiner noted that the CI did not require assistive devices.  The neurosurgical assessment was HNP L5-S1 (central) and bilateral radiculitis (nerve root irritation), and recommendations included epidural steroid injections and/or surgical correction of the HNP.  The CI declined both invasive treatment options.  Primary care notes from November 2004 to February 2005, indicated the CI continued to have LBP with sciatica and one visit noted continued use of a cane.  Examinations documented tenderness to palpation (TTP), but no muscle spasm, and ROM was noted as “decreased” without quantitative measurements.

At the 22 June 2005 VA Compensation and Pension (C&P) evaluation, performed 1 week before separation, the CI reported constant LBP that radiated to the lower extremities with numbness, burning and tingling, and was aggravated by activity.  He denied bowel or bladder symptoms.  The CI was taking a non-steroidal anti-inflammatory drug, two opioid pain medications, and a muscle relaxant.  The CI used a cane inside and outside his home and denied incapacitating episodes in the previous 12 months.  Physical examination showed normal spine structure and curvature, a normal gait, and no objective evidence of pain, spasm, or weakness.  The CI refused ROM testing and reported TTP of the lumbar spine.  There was no fixed deformity of the spine or back musculature.  Neurologic testing produced “very poor effort” by the CI, with strength rated at 4+/5 attributed to deconditioning by the examiner.  Sensory testing revealed a non-physiologic distribution of reported sensation loss.  The CI alternated which leg he limped on depending upon formal or informal observation.  The examiner documented that the CI’s “complaints were out of proportion to any objective findings,” and no objective disability could be related to lumbar degenerative disc disease (DDD).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the HNP condition 10%, coded 5243 (intervertebral disc syndrome), citing tenderness on examination, but deducted 10% for non-compliance, which resulted in a final rating of 0%.  The PEB also adjudicated lumbar spine degenerative disc disease, bilateral radiculitis, and chronic mechanical low back pain as Category II (contribute to the unfitting condition) conditions.  The lumbar spine DDD and mechanical low back pain represent the same disability as the unfitting HNP and IAW VASRD 4.14 (avoidance of pyramiding), are subsumed in the recommended rating for the back condition (the bilateral S1 radiculitis is addressed below).  The VA also rated the back condition 10% using the same 5243 code, based on the VA C&P examination 1 week before separation.  Although the PEB made a rating deduction for treatment non-compliance, the Board is required to consider its rating recommendation based solely on the impairment and the guidelines of the applicable VASRD diagnostic codes.

The Board considered the evidence at the C&P evaluation and conceded that the CI’s lack of cooperation at the examination provided no reliable evidence for its rating recommendation; however, the C&P examiner’s conclusion that no disability could be attributed to the underlying well documented lumbar DDD with disc herniation seemed inconsistent with the service medical records.  The neurosurgical assessment closest to the date of separation was that the CI’s symptoms, including radiating leg pain, were due to the back condition and that surgery was an option.  Members agree that a 10% rating was supported for tenderness of the spine as adjudicated by the PEB and supported by the VA rating which was also presumably assigned for lumbar spine tenderness.  Although the CI frequently used a cane, the neurosurgical evaluation noted the CI had a normal gait without use of a cane, and no examination within 10 months of separation noted muscle spasm.  Due to the lack of reliable quantitative ROM evidence available in the record, the Board surmised there was insufficient evidence to recommend a rating higher than 10% at separation.  

The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had IVDS, there were no incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The neurosurgical evaluation in November 2004 diagnosed bilateral S1 radiculitis and MRI studies supported some level of radicular nerve irritation or involvement; however, at the neurosurgical evaluation and C&P examination proximate to separation, there were no objective findings of radiculopathy (motor or sensory deficit) related to the lumbar DDD/HNP that would impact duty performance.  Radiating pain from the back condition is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The Board therefore concluded that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the herniated nucleus pulposus L5-S1, coded 5243.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that obesity and poor physical conditioning conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  According to DoDI 1332.38, E5, obesity is a condition that does not “constitute a physical disability” and is not eligible for Service rating.  Similarly, “poor physical conditioning” is a rectifiable circumstance and does not reflect a permanent impairment that constitutes a physical disability as well.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for obesity and poor physical conditioning, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the herniated nucleus pulposus L5-S1, the Board unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Herniated Nucleus Pulposus, L5-S1	5243	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141013, 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 31 May 16 ICO XXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 6 Jun 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 7 Jun 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 31 May 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 7 Jun 16 ICO XXXXXXXXXXXXXXXXXX

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

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

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

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

     c. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.
     
     e. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

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

     g. XXXXXXXXXXXXXXXXXX, 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.