RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01765
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20060512

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Cryptologic Technician, medically separated for “left L5 radiculopathy” with a disability rating of 20%.  

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 - 20060315	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left L5 Radiculopathy	5243	20%	No VA Examination in Evidence Proximate to Separation	
Left Ulnar Sensory Neuropathy	Cat II		
Benign Tremor	Cat III		
Migraine Headache	Cat III		
Obesity	Cat IV		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Left L5 Radiculopathy.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent a right L3-L4 microdiskectomy on 25 June 2004, but reinjured it March 2005 after falling down stairs.  Diagnostic imaging showed lumbar spine degenerative changes and degenerative disc disease, central disk protrusion at L5-S1, slightly contacting bilateral S1 nerve roots, congenitally small canal, and postoperative changes to L3-L4 with resolution of disk protrusion.  

At the 21 October 2005 neurology clinic appointment, 7 months prior to separation, the CI reported back pain involving sciatica down to the left calf with a pain level of 9/10.  He also complained of years of numbness and a tingly feeling down his left arm to pinky and ring fingers without left-hand weakness.  Physical examination showed an abnormal gait with a slow stride favoring the left leg and a widened station.  There was tenderness over the left lumbar spine and a positive straight leg raise test (SLR) on the left.  Motor strength and reflexes were normal throughout all extremities with normal muscle tone and bulk.  Sensation of temperature and pinprick was over the left lower leg, slightly over the bilateral thighs, and over the left ulnar (arm/hand) distribution.  

At the 2 November 2005 physical therapy (PT) appointment, 7 months prior to separation, the CI complained of low back pain (LBP) and left lower leg S1 radicular pain.  Physical examination documented an antalgic gait with a support cane.  Strength was decreased in the left ankle plantar flexors and difficulty with toe walking was noted.  The examiner recommended an additional epidural steroid injection and increased PT.  

During the 12 December 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported LBP with bulging disks and L5 impacted nerve root, numbness in his lower left leg and foot with loss of strength in his left leg; and numbness in his left arm.  Physical examination showed inability to forward flex or walk without a cane.  

The 21 December 2005 MEB NARSUM examination, 5 months prior to separation, noted complaints of constant, sharp, and throbbing left-sided LBP radiating down the lateral aspect of the left leg to the lateral ankle with numbness; pain was worse with walking, running, or prolonged standing.  Physical examination showed the CI had a slow slightly wide base gait favoring the left leg with assistance of a cane in his right hand.  There was decreased back flexion secondary to pain, without tenderness.  SLR testing was negative.  Lower extremity motor strength and reflexes were normal.  The left leg had decreased pinprick/temperature sensation over the lateral lower leg and foot.  “Tandem walk/toe/heel” was normal with pain.  Electromyogram from 14 November 2005 was abnormal and demonstrated evidence of a left L5 radiculopathy.  

In the 13 February 2006 PT treatment note, 3 months prior to separation, the CI complained of LBP and left leg pain with flares of back pain to 8/10 with decreased sensation and strength in his left leg.  Physical examination showed walking assisted with a cane in the right hand.  Patient movements were guarded.  Thoracolumbar range of motion (ROM) measurements recorded active flexion of 15 degrees (normal 90) with pain and “peripheralization of symptoms into the leg” down to the feet, extension to 25 degrees (normal 30), rotations equal bilaterally, and left flexion limited to 3 inches superior to the top of the kneecap with pain.  SLR was positive on the left.  There was slight left leg weakness with muscle motor testing of 4-/5 in the gluteus medius; 4/5 in plantar flexion, and extensor hallucis longus; and 4+/5 in ankle dorsiflexion and the peroneals.  The assessment was a herniated disc with associated abdominal and lower extremity weakness.  

The 17 February 2006 MEB thoracolumbar ROM measurements performed by PT, 3 months prior to separation, recorded active forward flexion to 30 degrees with pain following repetition, and combined ROM of 180 degrees (normal 240).  There were no inorganic signs or findings.  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 20%, coded 5243 (intervertebral disc syndrome [IVDS]).  The PEB worksheet (JDETS) indicated the CI was unfit due to radiculopathy status post diskectomy; had a forward flexion of 34 degrees and a total combined thoracolumbar ROM of 252 degrees; was taking Gabapentin and had normal motor strength without spasm, which combined to support a 20% rating.  

To rate the left L5 radiculopathy under VASRD §4.124a (neurological conditions and convulsive disorders) and considering VASRD §4.123 (neuritis, cranial or peripheral), would use the code 8620 (sciatic nerve, neuritis) and result in a rating between 20% (moderate) and 40% (moderately severe).  However, since the PEB rated the unfitting condition using code 5243 (VASRD §4.71a) from the General Rating Formula for Diseases and Injuries of the Spine, the panel considered if the CI more nearly met the next higher 40% rating criteria for that coding.  The PEB used the average ROM for forward flexion (34 degrees), and did not apply DeLuca criteria for worsening ROM following repetition which the source PT MEB ROMs indicated would be 30 degrees or less IAW VASRD criteria.  

The panel agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees as reported on the PT note and MEB PT examinations.  There was no evidence of incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for IVDS.  Since rating under the general spine formula is “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,” and IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited), there was insufficient evidence for a separate unfitting additional peripheral nerve rating (under VASRD §4.124a coding) without pyramiding.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the back condition, coded 5243.  

Contended PEB Category II Condition:  Left Ulnar Sensory Neuropathy.  The panel noted the PEB adjudicated this contended condition as a Category II condition (related to the unfitting condition) and the CI contended this condition.  Ulnar sensory neuropathy is therefore in the panel’s scope of review and will be addressed.  The panel noted the left ulnar neuropathy (upper extremity/non-dominant) was not related to either the CI’s lumbar pathology or the left L5 radiculopathy of the PEB’s unfitting and rated condition.  The panel next considered if additional disability rating was justified for left ulnar sensory nerve impairment due to neuropathy.  The NARSUM listed the condition under the past medical history section, with no left upper extremity physical findings.  The MEB forwarded brachial neuritis or radiculitis NOS for PEB adjudication.  There was no limited duty or non-medical assessment comment implicating an upper extremity condition that interfered with duty performance.  The presence of functional impairment with a direct impact on fitness is the key determinant in the panel’s decision to recommend any condition for rating as additionally unfitting, and physical examinations proximate to separation revealed no objective findings of ulnar sensory neuropathy that would impact duty performance.  The panel therefore concluded that an additional disability rating was not justified on this basis.  

Contended PEB Conditions:  Benign Tremor, Migraine Headache and Obesity.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled, implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  The obesity condition is a condition that does not constitute a physical disability and is therefore not ratable.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the back condition, the panel unanimously recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended ulnar radiculopathy condition, the panel unanimously agrees it cannot recommend it for additional disability rating.  In the matter of the contended benign tremor, migraine headache, and obesity conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting or not a physical disability.  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; 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	
Left L5 Radiculopathy (IVDS)	5243	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150630, w/atchs
Exhibit B.  Service 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 28 Sep 17 ICO XXXXXXXXXXXXXXXXXX, former USN
	(c) PDBR ltr dtd 17 Oct 16 ICO XXXXXXXXXXXXXXXXXX, former USMC 
	(d) PDBR ltr dtd 20 Sep 17 ICO XXXXXXXXXXXXXXXXXX, former USMC
	(e) PDBR ltr dtd 28 Sep 17 ICO XXXXXXXXXXXXXXXXXX, former USN
	(f) PDBR ltr dtd 20 Sep 17 ICO XXXXXXXXXXXXXXXXXX, former USMC
	(g) PDBR ltr dtd 20 Sep 17 ICO XXXXXXXXXXXXXXXXXX, former USMC
	(h) PDBR ltr dtd 15 Jun 17 ICO XXXXXXXXXXXXXXXXXX., former USN
	(i) PDBR ltr dtd 20 Sep 17 ICO XXXXXXXXXXXXXXXXXX, former USN
	(j) PDBR ltr dtd 5 Sep 17 ICO XXXXXXXXXXXXXXXXXX, former USMC 

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (j) 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 0 percent) effective date of discharge. 

     b. XXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 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: Placement on the Permanent Disability Retired List with a 40 percent rating (increased from 20 percent) effective date of discharge.

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

     f. XXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 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.

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS 

     h. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge.

     i. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge. 
     
3.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.

	XXXXXXXXXXXXXXXXXX
	Acting