RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE: pd-2015-01743
BRANCH OF SERVICE:  MARINE CORPS	SEPARATION DATE:  20030331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Range Coach and Machine Gunner, medically separated for “lower back pain” 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 - 20021220	VARD - 20030827	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5293	20%	Herniated Nucleus Pulposus L5-S1	5293-5295	20%	20030214	
Left L5-S1 Microdiskectomy	Category II	S1 Radiculopathy Left Lower Extremity	5293-8620	0%		
Leg Pain						
History of Left S1 Radiculopathy		S1 Radiculopathy Right Lower Extremity	5293-8620	0%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Low Back.  According to service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s underwent a left L5-S1 microdiskectomy for left S1 radiculopathy in 1999.  The CI did well for 6 months while on limited duty period.  However, after repetitive battalion runs he experienced recurrent left leg and back pain.  Magnetic resonance imagining (MRI) showed recurrent L5-S1 herniated disk.  The CI elected conservative treatment and pain management which did not successfully rehabilitate his low back condition.  

During the 22 March 2002 neurosciences evaluation, 12 months before separation, the CI reported continued back and left leg pain.  The history detailed that recurrent knee pain caused the CI to fall out of battalion runs.  Physical examination showed the CI moved easily and he was able to heel and toe walk.  The back was non-tender and range of motion (ROM) was normal.  Straight-leg raising (SLR) was negative for radiating symptoms or signs.  Motor strength and reflexes were normal, and sensation was intact.  The 29 April 2002 neurology note, 11 months before separation, indicated no exam changes from the 22 March 2002 examination.  

The 21 October 2002 MEB NARSUM examination, 5 months prior to separation, accomplished by a neurologist, noted complaints of back and left leg pain with activity.  “There were no symptoms at all in his right leg, no bowel or bladder complaints.”  He could do non-impact exercises, “however, with repetitive battalion runs, he has recurrent knee pain which causes him to fall out.”  Physical examination revealed lumbosacral tenderness.  Lower extremity motor function and reflexes were normal.  The CI was able to heel and toe walk.  Straight leg raising was negative.  The CI was pending scheduling for an epidural steroid injection (ESI) and possible redo diskectomy surgery if symptoms did not improve with ESI.  

At the 14 February 2003 VA Compensation and Pension (C&P) evaluation, 2 month before separation, the CI reported back pain with left greater than right leg pain going down to the foot.  He also had episodic leg and foot numbness.  He had multiple ESIs and was taking pain medications and a neuroactive medication (Neurontin).  Pain was worse with activity, prolonged sitting or standing.  Physical examination showed a normal posture and gait, “but he moves with caution.”  There was muscle spasm (left greater than right).  Forward flexion was 90 degrees (normal) with significant arthralgia and discomfort.  Backward extension was 35 degrees (normal 30), right flexion 25 degrees (normal 30), and left flexion and bilateral rotations were to 30 degrees (normal).  He had significant limitation and pain in walking on his heels and had a positive straight-leg raise bilaterally at 65 degrees.  The physician diagnoses included herniated nucleus pulposus L5 with decreased ROM due to pain, neurologic disease, decreased coordination, and significant decrease in endurance and easy fatigability.  

The panel directed attention to its rating recommendation based on the above evidence.  The 2003 VARD for the spine (after changes effective on 23 September 2002 and prior to the 26 September 2003 changes) which must be applied to the panel’s recommendation IAW DoDI 6040.44, differ significantly from the current and prior §4.71a General Rating Formula for the Spine.  

The PEB rated the low back condition 20%, coded 5293 (intervertebral disc syndrome (IVDS)).  The PEB listed left L5-S1 microdiskectomy, leg pain, and history of left S1 radiculopathy conditions as related diagnoses (Category II) that contributed to the disability in this case.  The panel agreed that the left L5-S1 microdiskectomy condition was a diagnosis related to the low back pain Category I unfitting condition and was not a separate condition which could be separately rated IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  The Category II leg pain and history of left S1 radiculopathy conditions will be discussed below.  The VA rated the low back condition 20%, analogously coded 5293-5295 (IVDS-lumbosacral strain), based on the C&P evaluation 2 months before separation, citing painful moderate limitation of motion with pain, hesitancy, and mild to moderate paravertebral muscle spasm.  The VA also rated right and left S1 radiculopathy of the lower extremities at 0% each, analogously coded 5293-8620 (IVDS-sciatic nerve neuritis) citing positive-bilateral straight leg testing (for radiculopathy) and bilateral gluteal muscle tenderness which did not rise to the level of mild incomplete paralysis.  

There was no evidence of incapacitating episodes (requires bed rest prescribed by a physician and treatment by a physician) having a total duration of at least two weeks for any 5293 rating higher than that awarded by the PEB.  There was no greater than slight limitation of lumbar motion for any higher rating under code 5292.  

The panel considered the treatment notes and examinations proximate to separation.  The VA examination was the single examination documenting significant muscle spasm, and also documented only 10 degrees of loss of right lateral flexion with all other spine motions essentially full.  As the totality of the record did not indicate recurrent muscle spasm on extreme forward bending, and there was not a unilateral loss of lateral spine motion in the standing position, the panel agreed that the CI’s disability picture at separation most nearly approximated the 10% criteria under code 5295 (lumbosacral strain) for characteristic pain on motion.  

The PEB listed the leg pain and history of left S1 radiculopathy conditions as Category II conditions, conditions that are related to the primary unfitting condition and contributes to the primary unfitting condition.  Although the PEB may have rated the CI based on the code 5293 criteria prior to 23 September 2003, which included symptoms compatible with neuropathy and would have included these two conditions, the 5293 criteria at the time of separation had been changed to being based on incapacitating episodes and did not include neuropathy symptoms or radiating pain.  

The panel’s first charge for these Category II conditions is to assess whether any of them can be reasonably justified as separately unfitting for rating consideration.  The CI had recurrence of HNP at L5-S1 and consistent complaints of left leg radiating pain down to the foot (the right leg was not implicated the STR or NARSUM).  Left S1 radiculopathy was temporarily resolved following surgery, but recurred with the recurrent HNP.  There was no NARSUM, MEB, or PEB evidence that right leg pain was adjudicated by the PEB, and right leg pain is therefore not in the PDBR scope.  Given that the neurologist indicated left leg pain caused the CI to fall out of Company runs, the NMA statement implicated inability to perform Company PT routine, and left S1 radiculopathy and (left) leg pain were forwarded on the MEB, the left S1 radiculopathy including (left) leg pain condition was considered reasonably unfitting.  

It is important to note that the VASRD spine rules in effect at the time of separation did not include the current spine rule’s statement that ratings are “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.”  Therefore the CI’s spine rating does not include radiating pain/neuritis.  The CI had left leg radicular pain without specific objective evidence of motor weakness, reflex loss or sensory deficit.  The pre-separation VA examination did note lack of coordination, limitation and pain with walking on heels, and a positive SLR.  

IAW VASRD §4.123, sciatic neuritis not characterized by organic changes has a maximum rating for moderately severe, incomplete paralysis.  Given the duty-impairing nature of the CI’s left leg pain/radiculopathy, the panel agreed that the CI’s peripheral nerve condition met the mild (10%) criteria under code 8620 (sciatic nerve, neuritis), and did not more nearly meet the moderate (20%) criteria level of disability.  After due deliberation, and considering all of the evidence, the panel recommends a disability rating of 10% for the low back pain condition with Category II left L5-S1 microdiskectomy condition, coded 5293-5295 and a separately unfit determination with a disability rating of 10% for the (left) leg pain and history of left S1 radiculopathy condition, coded 5293-8620.  

BOARD FINDINGS:  In the matter of the low back pain condition and IAW VASRD §4.71a, the panel unanimously recommends a disability rating of 10%, coded 5293-5295 IAW VASRD §4.71a.  In the matter of the Category II (left) leg pain and history of left S1 radiculopathy conditions, the panel unanimously recommends a separately unfit determination with a disability rating of 10%, coded 5293-8620 IAW VASRD §4.124a.  There are no other conditions within the panel’s scope of review for consideration.  As the new ratings result in no change to the combined disability rating previously assigned and do not provide any benefit to the CI, the panel recommends there be no modification or re-characterization of the CI’s disability and separation determination.

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 DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44

      In accordance with reference (a), I have reviewed the cases listed below and approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN

		
							XXXXXXXXXXXXXXXXXXX
	     				Principal Deputy, Assistant 
						Secretary of the Navy
						(Manpower and Reserve Affairs)
						Performing the Duties of the 
						Assistant Secretary of the Navy
						(Manpower and Reserve Affairs)