RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00524
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20051007

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve O3, Operating Room Nurse, medically separated for “herniated disk disorder” with a disability rating of 10%.  

CI CONTENTION:  The CI contends that he had no back problems prior to entering Service and that the back injury has had a negative impact on his life.  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 - 20050901	VARD - 20080815	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Herniated Disk Disorder	5243	10%	Lumbar Spine, Status Post L4-5 Discectomy	5243	0%	20080522	
S/P L4-5…Left Discectomy…Radiculopathy	Cat II					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Herniated Disk Disorder.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with L4-5 decompression and right-sided discectomy in April 2004 (18 months prior to separation) for herniated disc and stenosis (a narrowing of the open spaces in the spine).  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “other and unspecified disc disorder” for PEB adjudication.  

At the time of the physical therapy appointment on 7 December 2004 (10 months prior to separation and 6 months after surgery), the CI reported soreness and stiffness in his low back, but denied severe back pain.  On examination, the CI showed a left lateral shift of the trunk and a forward-flexed posture.  There was soreness (tenderness) to examination by touch.  Range of motion (ROM) was recorded as lumbar extension 10 degrees, while left and right side bending (lateral flexion) were described as within normal limits.  There was no ROM recorded for forward flexion or rotation to either side.  Provocative testing for nerve root irritation was negative for radiculopathy.  The left ankle had reduced strength for dorsiflexion (lifting the foot so the toes go up) and eversion (rolling the foot so the little toe goes up) at 4/5 strength, with all other muscle groups and motion ranging from 4+/5 to 5/5 (normal).  

At the time of the Physical Medicine & Rehabilitation clinic appointment on 16 March 2005, 7 months prior to separation, the CI complained of low back stiffness, and denied numbness in the left leg.  Diagnostic imaging showed lumbar postoperative scarring with slight foraminal impingement.  Physical examination revealed slight tenderness of the lower back with a normal neurologic examination except for the left ankle, which was reported to have 4/5 motor strength.  The left foot had decreased sensation to light touch.  ROM was reported as forward flexion to the CI having his fingertips 11 inches from the floor [reaching fingers past the knees almost always exceeds 60 degrees of thoracolumbar flexion].  Provocative testing for nerve root impingement was negative.  Electrodiagnostic testing (EMG/NCS) revealed electrical findings for a chronic left lumbar (L5) radiculopathy.  The examiner concluded that the CI had residual weakness in his left ankle dorsiflexors (the muscles that lift the foot up).  

The MEB NARSUM examination on 25 April 2005, 5 months prior to separation, noted complaints of back stiffness with pain that ran down the right leg 1-2 times per month.  The CI indicated he suffered from persistent left foot drop which prevented him from running.  The physical examination showed motor strength was normal (5/5) throughout.  Sensory was intact to multiple testing and reflexes were normal and symmetric.  There was breakaway weakness in his left tibialis anterior muscle (the primary muscle used to dorsiflex the foot).  Provocative maneuvers for nerve root irritation were negative for radiculopathy.  The back ROM was reported as within normal limits for forward flexion, extension, and lateral flexion (no mention of rotation was made and no goniometric measurements were recorded).  

During the MEB examination on 7 August 2005, 2 months prior to separation, the CI reported low back pain with intermittent radiation of pain into the right leg, as well as residual left foot drop that prevented him from running.  Physical examination recorded ROM as flexion to 75 degrees (normal 90) and lateral flexion within normal limits, with no data recorded for extension or rotation.  Strength was reported as 4/5 (normal 5/5) for dorsiflexion of the left foot with breakaway weakness.  

At the 22 May 2008 VA Compensation and Pension (C&P) evaluation, performed 2 ½ years after separation, the CI reported episodic low back stiffness with intermittent flares and exacerbation with excessive physical activity.  The physical examination showed full ROM without pain.  Ambulation was normal with normal lower extremity strength and sensory testing.  Slightly reduced left ankle reflex was essentially the only abnormal finding.  No foot drop was observed at this examination.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome), with no citation recorded as the basis for that rating.  The VA rated the back 0% using the same 5243 code, based on the VA C&P examination 2 ½ years after separation, citing no objective evidence of functional loss due to pain and not meeting the 10% ROM criteria.  The VA did not rate the lumbar surgical scar or any radiculopathy condition.  

The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) reported on the MEB examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  

The PEB listed the “s/p L4-5 left discectomy with chronic L5 radiculopathy” condition as a Category II condition, a condition that is related to the primary unfitting condition and contributes to the primary unfitting condition.  The Board’s first charge for this Category II condition is to assess whether it can be reasonably justified as separately unfitting for rating consideration.  

Radiographic and electrodiagnostic studies (EMG/NCS) supported some level of radicular nerve irritation or involvement, and physical examinations proximate to separation revealed an abnormal gait with either slight ankle dorsiflexion weakness or “breakaway” weakness.  The radiographic abnormalities and chronic L5 findings from the EMG/NCS aligned with the left ankle dorsiflexion findings.  Although breakaway weakness is primarily considered as due to pain or poor effort rather than intrinsic muscle disability or paralysis, the CI had pain and neuritis (nerve irritation) would reasonably account for the ankle dorsiflexion findings.  Inability to run due to foot drop was a major complaint and there was objective evidence of a radiculopathy.  

Members agreed that the subsumed Category II chronic (left) L5 radiculopathy condition was reasonably justified as separately unfitting given the above findings.  The Board then considered the rating for the left lower extremity radiculopathy and adjudged that it best represented a mild sciatic nerve neuritis warranting a 10% rating coded 8699-8620.  Alternative coding of moderate anterior tibial nerve (deep peroneal - 8623) neuritis (a more distal nerve) would remain as a 10% rating and offer no benefit.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% (no change) for the herniated disk disorder coded 5243, with the addition of a disability rating of 10% for the unfitting chronic (left) L5 radiculopathy condition, coded 8699-8620.  

BOARD FINDINGS:  In the matter of the herniated disk disorder and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the Category II “s/p L4-5 left discectomy with chronic L5 radiculopathy” condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 10%, coded 8699-8620 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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Herniated Disk Disorder	5243	10%	
S/P L4-5 Left Discectomy with Chronic (Left) L5 Radiculopathy	8699-8620	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150531, 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 03 Nov 16 ICO XXXXXXXXXXXXXXXXXX    
	(c) PDBR ltr dtd 21 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 24 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 28 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 21 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 03 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 28 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 28 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 28 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 28 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(l) PDBR ltr dtd 03 Nov 16 ICO XXXXXXXXXXXXXXXXXX

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

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

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

     b. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge. 

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

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

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

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

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

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

     j. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     k. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 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.

	XXXXXXXXXXXXXXXXXX
	Assistant General Counsel
						   (Manpower & Reserve Affairs)