RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01481
BRANCH OF SERVICE:  NAVY 	SEPARATION DATE:  20040601

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Electrician Mate, medically separated for “chronic back and right leg pain postop” with a disability rating of 10%.  

CI CONTENTION:  He still has chronic back pain and his blood pressure and hearing loss were never considered.  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 – 20040402	VARD - 20050214	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back and Right Leg Pain Post-Op	5299-5238	10%	Residuals, Status Post Hemilaminectomy with Diskectomy L5-S 1	5243	20%	20050114	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Back and Right Leg Pain Post-Op.  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with hemilaminectomy and discectomy in May 2003 for degenerative disc disease.  At his surgical follow-up appointment with the neurosurgery clinic on 16 July 2003, he reported mild back pain with occasional shooting leg pain in his right leg about 3 nights a week while sleeping and some numbness over his lateral foot.  Physical examination showed a very mild antalgic gait.  The CI was able to heel and toe walk.  There was some decrease to light touch sensation in the right lower extremity and straight leg raising (SLR) was positive for radiating pain.  The CI was unable to bend to his toes.  The surgeon noted “at 6 weeks out from surgery, I think he is doing quite well.”  At his next neurosurgery appointment on 4 February 2004, 4 months before separation, the CI reported his pain had escalated, with radicular pain into the buttock, thigh, and calf; and a second separate pain in the upper lumbar spine that shot directly into the upper buttock.  He also reported increasing bouts of right calf cramping, particularly at night.  Physical examination showed results largely unchanged from the previous appointment 7 months earlier.  

At his final neurosurgery appointment on 1 March 2004, the day before his NARSUM was dictated, the examiner recorded that the CI had full strength in both legs but still had some decreased sensation to light touch in the right lower extremity.  Gait was still mildly antalgic on the right but the CI could heel and toe walk and he had positive SLRs.  Range of motion (ROM) measurements were not provided, but the examiner reported the CI was able to bend approximately halfway to his toes.  An MRI conducted in February 2004 (not in evidence) was reported to show post-operative changes at the right L5-S1 level, a persistent small bulge to the disk, persistent relative stenosis, and scar tissue surrounding the right S1 nerve root.  A February 2004 X-ray was reported as normal with the exception of some decreased disk height at the L5-S1 space and postoperative changes consistent with his surgery at the right L5-S1 level.  The 2 March 2004 MEB NARSUM examination, 3 months prior to separation, repeated the history and physical examination results noted above.  The examiner (his neurosurgeon) reported that the CI was a good candidate for redo surgery but that the CI declined this option and preferred conservative treatment, which the surgeon felt was reasonable.  

At the 14 January 2005 VA Compensation and Pension (C&P) evaluation, 7 months after separation, the CI reported a dull, deep ache in his lower back about 80% of the time, predominantly on the right, with no radiating pain, numbness, or tingling.  Once a month he had episodes of severe “Charley horses” in his lower right back down his buttocks to his calves, lasting about 10 minutes.  He reported no provider or emergency room visits since separation.  Physical examination showed a normal gait with good spinal alignment.  Bilateral lower extremity strength and sensation were equal and normal.  There was palpable spinal tenderness in the right lumbar region.  Thoracolumbar ROM was reported as forward flexion to 60 degrees (normal 90), lateral flexion to 15 degrees bilaterally, and rotation to 10 degrees bilaterally.  Extension measurements were not provided.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back and right leg pain condition 10%, coded 5299-5238 (analogous to spinal stenosis).  The VA rated the back and right leg pain condition 20%, coded 5243, (intervertebral disc syndrome), based on the C&P examination 7 months after separation, citing limitation of ROM.  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) as reported on the 1 March 2004 neurosurgery and the VA C&P examinations.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  The panel noted that the PEB specifically listed right leg pain as part of the CI’s unfitting condition.  The panel next considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had radicular pain treated with surgery, and there were symptoms of radiating pain documented in the treatment records.  Examinations after surgery reflected a mildly antalgic gait and some mild sensory limitations.  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).”  Therefore 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 recommends a disability rating of 20% for the back and right leg pain condition, coded 5243.  
BOARD FINDINGS:  In the matter of the back and right leg pain condition, the panel unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  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 the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back and Right Leg Pain Postop	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161015, 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 11 Mar 18 ICO XXXXXXXXXXXXXXXXXX 
	 (c) PDBR ltr dtd 11 Mar 18 ICO XXXXXXXXXXXXXXXXXX 
	 (d) PDBR ltr dtd 12 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 11 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	 (f) PDBR ltr dtd 12 Mar 18 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (f) 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 USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXXXXX, former USN: 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 50 percent rating (increased from 10 percent) effective date of discharge.  

     e. 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.