RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00768
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20040304

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E4, Hospital Corpsman, medically separated for “degenerative disc disease [DDD], L3-4, L5-S1,” with a disability rating of 10%.   

CI CONTENTION:  “I am currently rated by the Department of Veteran Affairs as 100% Service Connected disabled for the same disabilities I was separated from the Navy at 10% disabled. I feel the Navy separation disability rate should be more in line with my actual disability as rated by the VA.”  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 - 20031030	VARD - 20041210	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DDD, L3-4, L5-S1	5295	10%	Status Post L3-4 Discectomy; L4-5 Laminectomy with DDD; Detrusor Dyssynergia; Neurogenic Bladder; Paresthesia, Bilateral Lower Extremity	5243	100%	20040420	
Bilateral Lower Extremity Pain	CAT II					
Longstanding Low Back Pain						
Status Post L3-4 Discectomy						
Urinary Bladder Detrusor Dyssynergia	CAT III					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  100% 	

ANALYSIS SUMMARY:  

DDD, L3-4, L5-S1.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent an L3-4 discectomy and L3-4 and L4-5 foraminectomy in August 2001.  In April 2002 the CI complained of muscle twitching of all extremities with fatigue and jerking movement of the legs and arms for 4 months.  A neurologic evaluation a year after surgery revealed some giveaway weakness due to pain especially in the lower extremities with 5-/5 in the intrinsic foot muscles.  There was a distal-to-proximal gradient to pinprick in the feet to the level of the knees.  Temperature sensation was reduced.  She was able to take a few steps with assistance and could stand on her heels and toes.  Electrodiagnostic testing revealed no definite evidence of a sensorimotor polyneuropathy.  Isolated findings in the right tensor fascia lata muscle were somewhat nonspecific, and may have represented an early right L5 radiculopathy.  The neurosurgeon did not see any indications for neurosurgical intervention.  

At a neurology follow-up visit with her civilian neurologist on 10 March 2003, MRI results of the thoracic spine were reported as normal with gadolinium enhancement and an MRI of the lower spine showed postoperative changes at L3-L4 through L5-S1 that remained unchanged.  At L3-L4 there was a small, central extradural defect, which had actually decreased in size from the previous study and was no longer enhanced.  There was also mild, bilateral neural foraminal stenosis at L4-L5.  The CI reported twitching and jerking activity that tended to be worse at night reminiscent in part of epileptiform activity.  The neurologist felt the CI may have had a peripheral, small fiber, sensory polyneuropathy with dysautonomia and complex regional pain syndrome.  The CI was seen in the emergency room on 16 September 2003 with spastic motions of the arms, body and legs.  

The 24 March 2003 MEB NARSUM examination, 11 months prior to separation, noted complaints of low back pain and bilateral lower extremity pain.  Physical examination showed decreased motor strength of 4/5 in the bilateral lower extremities proximally.  There was decreased primary sensation of the entire lower extremities bilaterally and completely gone in the feet and patchily diminished elsewhere in no clear pattern.  Reflexes were normal.  The gait was not assessed since the CI was in a wheelchair.  The examiner noted neurologically the examination was unrevealing and there was no evidence to suggest neurogenic limitation or cause for any of her complaints.    

The 10 April 2003 non-medical assessment (NMA) indicated the CI had been confined to her home and required the use of a wheelchair and walker in order to move about.  Pain medicine indicated on 26 August 2003 that the CI’s range of motion (ROM) was markedly decreased for all motions, but did not provide measurements.  

A note dated 27 October 2003 by a PM&R [physical medicine and rehabilitation] specialist to the MEB indicated the CI suffered from low back pain with bilateral lower extremity numbness and pain.  The examiner noted the CI likely had moderate deconditioning with a colder right lower extremity than the left, which was clinically consistent with CRPS [complex regional pain syndrome], although a bone scan did not show increased soft tissue uptake.  

At the 20 April 2004 VA Compensation and Pension (C&P) spine evaluation, 1 month after separation, the CI reported chronic back pain, aggravated with any bending, lifting, stooping, squatting, kneeling, or climbing as well as standing or ambulating in excess of 20 minutes.  She had radiation in the bilateral lower extremities.  She also had stiffness of the lower back with frequent bilateral lumbar muscle spasms.  She experienced increased pain and weakness with repetitive use without any further limitation of motion and also experienced lack of endurance and excess fatigue.  The CI was ambulatory with a walker at home and used a wheelchair for longer distance travel.  Physical examination was a wheelchair examination only.  There was no visible deformity, scoliosis, lordosis or kyphosis.  ROM measurements of the thoracolumbar spine were not done due to the CI’s wheelchair status.  At the neurology evaluation the same day, the CI came in a wheelchair and reported constant lower back pain and pain in the lower extremities, but had no feeling in her feet or legs from the knees down.  Physical examination showed normal lower extremity muscle mass, strength, and tone.  There was no erythema or trophic skin changes noted in the legs or feet.  Deep tendon reflexes were not obtainable in the lower extremities except the left knee jerk was 1+.  Sensory examination revealed impaired vibration in both feet and both legs.  The examiner did not see any significant neurogenic gait abnormality.  She walked slowly with holding on to something.  She had spasm and tenderness of the paraspinal muscles.  At the 29 October 2004 C&P follow-up neurology evaluation, less than 8 months after separation, based on electrodiagnostic studies performed on 12 October 2004, the examiner opined that paresthesias of both lower extremities was likely due to lumbar radiculopathy.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5295 (lumbosacral strain), citing degenerative spine changes on radiologic studies, muscle spasms peripheral to the arms and legs, normal nerve conduction studies, normal MRI with the exception of spine degenerative changes.  The PEB’s Category II diagnoses of longstanding low back pain and status post L3-4 discectomy are intrinsic to the rated condition and a separate rating for either condition cannot be supported without pyramiding (VASRD §4.14); thus, they are appropriately subsumed in the same rating.  The Category II diagnosis of bilateral lower extremity pain is discussed below.  The VA assigned the back condition a 100% pre-stabilization rating, coded 5243 (intervertebral disc syndrome (IVDS)), based on the C&P examination 1 month after separation, citing an un-stabilized condition with severe disability, with gainful employment not being feasible or advisable.

Panel members noted the PEB used the 5295 code from the old spine rules rather than a code from the current VASRD rules, which were in effect at the time of separation.  There were no ROMs in the STR to determine a rating; however, guarding and abnormal gait were present.  Panel members discussed the gait and noted the CI walked with a walker or walked slowly while holding on to something and for long distances, she used a wheelchair.  Thus, the panel determined her gait was abnormal and warranted a 20% rating.  A 40% rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, but as discussed above, there were no ROM measurements assessed proximate to separation.  There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula, albeit the CI was, according to the NMA, confined to her home and required use of a wheelchair and walker in order to move about.  However, there was no evidence in the STR that she was prescribed bed rest by a physician for acute signs and symptoms due to the IVDS.  The panel noted that IAW note 1 of the General Rating Formula for Diseases and Injuries of the Spine, associated objective neurologic abnormalities should be separately rated under the appropriate diagnostic codes.  Therefore, the panel addressed the bilateral lower extremity pain and detrusor dyssynergia separately below.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition, coded 5243.  

Contended Category II Condition:  Bilateral Lower Extremity Pain.  The PEB listed the bilateral lower extremity condition as a category II condition (a condition that is related to the primary unfitting condition and contributes to the primary unfitting condition).  The panel’s first charge for this Category II condition is to assess whether it can be reasonably justified as separately unfitting for rating consideration.  

The panel majority agreed that the Category II bilateral lower extremity condition was reasonably justified as separately unfitting because the NMA indicated the CI had been confined to her home and required the use of a wheelchair and walker in order to move about.  Panel members discussed the bilateral lower extremity pain in depth.  There was little uniformity in the different examiners’ findings and even the interpretation of the electrodiagnostic studies was not completely agreed upon.  While no definite electrodiagnostic evidence of a sensorimotor polyneuropathy was noted, a neurologist felt the CI may have had a peripheral, small fiber, sensory polyneuropathy with dysautonomia and complex regional pain syndrome.  At 8 months after separation, the examiner opined the paresthesias of both lower extremities was likely due to lumbar radiculopathy.  Panel members noted the General Rating Formula for Diseases and Injuries of the Spine discusses pain whether or not it radiates.  While the CI had a component of radiation of pain to the lower extremities, she also had either a radiculopathy or a complex regional pain syndrome, either of which supports an unfitting determination as determined by the panel majority and warrants a rating.  Panel members then discussed the fact that each lower extremity warranted a separate rating.  Therefore, the panel majority agreed a 10% rating using code 8720 (sciatic nerve neuralgia) for each lower extremity was reasonable.

After due deliberation, the panel majority agreed the preponderance of evidence with regard to the functional impairment of the bilateral lower extremity condition favors the recommendation as an additionally unfitting condition for disability rating.  The right lower extremity condition is appropriately coded 8720 and meets the VASRD §4.124a criteria for a 10% rating and the left lower extremity condition is appropriately coded 8720 and meets the VASRD §4.124a criteria for a 10% rating.  

Contended Category III Condition:  Urinary Bladder Detrusor Dyssynergia.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not implicated in the NMA statement.  Members noted that for approximately a year prior to surgery, the CI had some difficulty initiating a urinary stream, postoperatively diagnosed as detrusor external sphincter dyssynergia, which examiners felt was related to the back condition.  Nonetheless, there was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition; and so, no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition, the panel unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended bilateral lower extremity condition, the panel majority agrees that each lower extremity was separately unfitting and recommends a disability rating of 10%, coded 8720 IAW VASRD §4.124a for the right lower extremity and a disability rating of 10%, coded 8720 IAW VASRD §4.124a for the left lower extremity.  The single voter for dissent recommends no change from the PEB determination and elected not to submit a minority opinion.  In the matter of the contended urinary bladder detrusor dyssynergia condition, the panel unanimously recommends no change from the PEB determination as a not unfitting condition.  There are no other conditions within the panel’s scope of review for consideration.  

The panel majority 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	
Degenerative Disc Disease, L3-4, L5-S1	5243	20%	
Bilateral Lower Extremity Pain, Right Lower Extremity	8720	10%	
Bilateral Lower Extremity Pain, Left Lower Extremity	8720	10%	
COMBINED 	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160913, 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 13 Oct 17 ICO XXXXXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 08 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 06 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 07 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 07 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 06 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 07 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 08 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 08 Mar 18 ICO XXXXXXXXXXXXXXXXXX

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 10 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 10 percent) effective date of discharge. 

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

     d. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 percent 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 USN: Placement on the Permanent Disability Retired List with a 50 percent rating (increased from 10 percent) effective date of discharge.  

     g. XXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent 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 0 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.
 
2.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.