RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01200
BRANCH OF SERVICE:  Marine CORPS	SEPARATION DATE:  20050725

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E3, Administrative Clerk, medically separated for “herniated nucleus pulposus, L5-S1 symptomatic with associated left calf muscular atrophy” with a disability rating of 10%.  

CI CONTENTION:  “Review all conditions.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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(s) at the time of separation.  The panel 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 panel 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 - 20050725	VARD - 20061116	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Herniated Nucleus Pulposus L5-S1, Symptomatic with Associated Left Calf Muscular Atrophy	5295	10%	Back Injury	5243	NSC	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NSC	

ANALYSIS SUMMARY:  

Herniated Nucleus Pulposus (HNP), L5-S1 Symptomatic with Associated Left Calf Muscular Atrophy.  The PEB combined the back condition (HNP L5-S1), and the associated left calf muscular atrophy conditions under a single disability rating, coded 5295 (lumbosacral strain) and rated 10% [NOTE:  the VASRD 5295 code was revised and moved to 5235–5243 effective 26 September 2003].  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel’s initial charge in this case was therefore directed at determining if combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

According to the service treatment record (STR), the Medical Evaluation Board (MEB) narrative summary (NARSUM) and civilian treatment records, the CI’s back condition began in December 2004 while performing a fireman’s carry during annual training.  He had a prior back injury in October 2003 (fell off a ladder and landed on his lower back), from which he fully recovered, but did not return to “drilling status” following his October 2004 injury.  

At a 26 January 2005 physical therapy consult, 6 months prior to separation, the CI complained of a 1-month history of low back pain rated at 3-4/10, and sciatic pinching in the buttocks radiating to the left thigh and occasionally to the left foot.  On examination, he had normal lower extremity motor strength and reflexes.  There was full active range of motion (ROM) with pain on flexion and extension, and provocative testing to detect nerve root irritation was positive bilaterally.  The provider diagnosed chronic low back pain with radiculopathy.  A 25 February 2005 MRI showed a herniated disc at L5-S1 touching the thecal sac without obvious compression.  Degenerative disc disease was also noted at L1-2 and L2-3.  

At an 11 April 2005 orthopedic visit, the CI complained of low back pain that radiated to the left buttocks and occasionally to the knee, and occurred with running, rucking and performing the fireman’s carry.  On examination, he had normal gait and heel toe walk, and tenderness to of the paraspinal muscles.  Motor strength, reflexes, and sensation were normal and provocative testing to detect nerve root irritation was negative.  Orthopedics recommended non-surgical treatment.  

The 26 April 2005 MEB NARSUM orthopedic examination, 3 months prior to separation, noted CI complaints of “persistent lower back pain in spite of resolution of his previous leg pain symptoms.” He was able to run up to 1 mile despite recurring leg pain, but his condition became symptomatic with continued running and carrying any gear.  Physical examination showed tenderness over the lumbosacral junction.  Although formal ROM measurements were not taken, the examiner noted the CI could touch his fingers to his toes with his knees fully extended (equivalent to normal/90 degrees flexion).  Straight leg raise testing was positive on the right at 60 degrees and on the left at 45 degrees (for radicular symptoms).  Although the CI had normal muscle strength, the examiner documented obvious atrophy of the left calf (41 cm vs 47 cm on the right).  During the 17 May 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported lower back pain with tingling in the left buttocks and occasionally to the left leg.  Physical examination showed tenderness over the lumbosacral area.  There was no VA examination in evidence proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5295 (lumbosacral strain).  The VA determined the back condition was not service-connected based on the STR.  The panel first considered whether the back condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Based on the treatment records, lumbar pain was the CI’s principal long-standing complaint.  The panel concluded there was not a preponderance of evidence in the service records to overcome the presumption that the bundled back condition was reasonably considered separately unfitting.  

The panel then considered its rating recommendation for the unfitting back condition at the time of separation.  Although there was insufficient limitation of motion to support a 10% rating, the panel agreed a 10% rating was justified for the presence of painful motion and tenderness.  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 documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, and considering all of the evidence, the panel recommends a separately unfit determination with a disability rating of 10% for the back condition coded 5243 (intervertebral disc syndrome) IAW the VASRD in effect at the time of separation.  

The panel next considered whether the radiculopathy (“symptomatic with associated muscle atrophy”) condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The NARSUM indicated that (left) leg pain prevented the CI from running carrying body armor or a pack; that the CI had obvious left calf atrophy, a positive SLR, and imaging supporting significant HNP at L5-S1.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled radiculopathy (“symptomatic with associated muscle atrophy”) condition was reasonably considered separately unfitting.  

The panel then considered its rating recommendation for the unfitting radiculopathy condition at the time of separation.  The CI’s left calf atrophy was considered a fixed defect as there was no associated left leg weakness.  Sciatic pain was intermittent and exacerbated by exertion.  Although IAW VASRD §4.123, the maximum rating with organic changes (atrophy) would be up to severe, incomplete, the panel adjudged that the disability at separation most closely approximated the mild (10%) disability picture.  After due deliberation, and considering all of the evidence, the panel recommends a separately unfit determination with a disability rating of 10% for the left leg condition, coded 5243-8620.  

BOARD FINDINGS:  In the matter of the “HNP L5-S1, symptomatic with associated left calf muscular atrophy” condition, the panel unanimously recommends that each condition be separately adjudicated as follows: an unfitting back condition coded 5243 and rated 10% IAW VASRD §4.71a; and an unfitting left leg radiculopathy condition, coded 5243-8620 and rated 10% IAW VASRD §4.124a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends 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%	
Symptoms and Left Calf Muscular Atrophy Associated with HNP L5-S1	5243-8620	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150610, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs)
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 17 Jan 17 ICO XXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 17 Dec 17 ICO XXXXXXXXXXXXXXXXXX   
	(d) PDBR ltr dtd 20 Sep 17 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 Oct 17 ICO XXXXXXXXXXXXXXXXXX 
	(f) PDBR ltr dtd 31 Jul 17 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 07 Dec 17 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.  The official records of the following individuals are to be corrected as follows:

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

     b. XXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent 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.      

     d. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 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 USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 
     
2.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.