RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02200
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20060815

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Intelligence Specialist, medically for “low back pain, recalcitrant to surgical management, left lower extremity weakness condition,” with a disability rating of 20%.

CI CONTENTION:  The CI contends conditions at were not adjudicated by the MEB or PEB.  The conditions are not within this panel’s purview as discussed in the SCOPE OF REVIEW below.  The CI’s 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 - 20060609	VARD - 20080115	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain, Recalcitrant to Surgical Management, Left Lower Extremity Weakness Condition	5237	20%	S/P Microdisectomy at L5-S1 w/Residuals of Chronic Pain, Left Radiculopathy and Intermittent Right Sciatica	5243	10%	20070816	
Left Sciatica, Compression L5-S1	CAT II					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Low Back Pain, Recalcitrant to Surgical Management, Left Lower Extremity Weakness Condition.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition with left lower extremity weakness condition began in October 2004 during/after pregnancy.  The MEB forwarded sciatica for PEB adjudication.  MRI of the lumbar spine dated 21 December 2005 showed mild granulation material surrounding the left S 1 nerve root without displacement at the L5-S I level with mild left LS foraminal narrowing.  The CI had normal gait, reflexes and sensation.  The MEB NARSUM examination on 5 May 2006, 3 months prior to separation, noted complaints of intermittent back pain.  Physical examination showed upper and lower extremities had full bilateral range of motion and strength.  The spine had tenderness over the L1-L3 spinous process and the CI was able to do squats and raise without difficulty.  There was decreased spinal flexion with fingertips to knee level.  

At the 16 August 2007 VA Compensation and Pension (C&P) evaluation, performed 12 months after separation, the CI reported constant 2-9/10 low back with the pain radiating down her left leg to mid posterior thigh with occasional numbness/tingling.  Physical exam showed ROM flexion 0-78 degrees (90 Normal), extension 0-30 degrees (30 Normal), right lateral flexion 0-30 degrees (30 Normal), left lateral flexion 0-30 degrees (30 Normal), right lateral rotation 0-30 degrees (30 Normal), left lateral rotation 0-30 degrees (30 Normal).  There was no motor loss.  Left lower leg showed decreased vibratory, pin prick and light touch sensation.  

At the 25 September 2007 Neurology VA Compensation and Pension (C&P) evaluation, performed 13 months after separation, the CI reported intermittent 4/10 low back pain worse with bending over and turning to the right.  Physical exam showed motor strength in the lower extremities are somewhat pain limited but 5/5 on the right.  The left showed she had slightly decreased plantar flexion, 5-/5 compared with the right, which is 5/5.  Otherwise, the examination was completely normal. Normal muscle bulk; normal muscle tone.  Sensation was normal to vibration, proprioception, light touch and pinprick in both lower extremities.  Reflexes were normal.  Gait was normal and she was able to walk on toes and heels without any difficulty.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain condition 20%, coded 5327 (lumbosacral or cervical strain), citing recalcitrant to surgical management and left lower extremity weakness.  The Navy PEB also listed left sciatica, compression L5-S1 as a related Category II condition (a condition that contributed to the primary unfitting condition but was not separately ratable).  The impairment from the left sciatica was properly subsumed under the overall rating for the chronic low back pain IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  The VA also rated the chronic low back pain condition 10% coded 5243 (Intervertebral disc syndrome), based on the VA C&P examination 12 months after separation.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the NARSUM examination rated as 5237 (lumbosacral or cervical strain).  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  The panel also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain treated with surgery, and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and the sensory changes did not affect her job.  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.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates)”, the critical decision is whether or not there was a significant motor weakness which would impact military occupation-specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The panel therefore concluded that an 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 panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the low back pain, recalcitrant to surgical management, left lower extremity weakness condition.  

BOARD FINDINGS:  In the matter of the low back pain, recalcitrant to surgical management, left lower extremity weakness condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150813, 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:

		- XXXXXXXXXXXXXXXXXX, former USMC
		-XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
	 	- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		-XXXXXXXXXXXXXXXXXX, former USN
		-XXXXXXXXXXXXXXXXXX, former USMC

		
		
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	     				  Acting