RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXXX	CASE: PD-2017-03759
BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20060831

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Airframes Mechanic, medically separated for “L4-L5 and L5- S1 lumbar radiculopathy” with a disability rating of 10%.

CI CONTENTION:  “L4-L5, L5-S1 herniated disc.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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. The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate. The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.

RATING COMPARISON:

SERVICE PEB - 20060710	VARD - 20070423	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L4-L5 and L5-S1 Lumbar Radiculopathy	5243	10%	Degenerative Disc Disease with Herniated Discs at L4-S1	5242	10%	20070323	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:

L4-L5 and L5-S1 Lumbar Radiculopathy. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in October 2004 after he jumped off a helicopter from 10-12 feet during an incoming rocket attack. Diagnostic imaging revealed disc bulging in the L3-L4, L4-L5 and L5-S1 as well as disc protrusion (herniated disc) and narrowing of the bilateral neuro foraminal at L4-L5 and L5-S1. The CI underwent back surgery in December 2005 for discogenic pain with successful discTRODE (radiofrequency) annuloplasty at L4-5 and an unsuccessful attempt at L5-S1. The CI’s second period of limited duty (LIMDU) in May 2006 listed L4 and L5 radiculopathy. The CI was offered two-level fusion or disc replacement and reasonably declined.

At the 6 April 2006 orthopedics evaluation, 5 months prior to separation, the CI complained of lower back pain with stiffness, muscle tightness, and shooting pain. On physical examination gait was normal and there was no spine deformity. Trunk range of motion (ROM) was normal in flexion, extension, and lateral flexion with normal strength and no instability. Lower extremity strength and sensation were normal. Bilateral lower extremities had normal painless ROM. The impression was discogenic pain at L4-5 and L5-S1.

The 25 May 2006 MEB NARSUM examination, 3 months prior to separation, noted complaints of an inability to run due to continual lower back pain worsened by impact activity. Physical examination showed a normal gait and normal spine alignment and appearance. There was no tenderness or muscle spasm. The CI had “normal lumbar flexion, extension, lateral flexion and rotation.” Lower extremity strength (5/5) and reflexes (2+) were normal, with sensation intact bilaterally.  The diagnosis was “L4-L5 and L5-S1 lumbar radiculopathy.”

During the 2 June 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported LBP. Physical examination showed tenderness over the L4- S1 region with decreased (3/5) left hip flexion strength, and decreased (3/5) hamstring quadriceps dorsiflexion and plantar flexion strength bilaterally. There was positive straight leg raise (for radicular signs/symptoms) bilaterally.  Reflexes were normal.

At the 23 March 2007 VA Compensation and Pension (C&P) examination, 7 months after separation, the CI reported LBP that radiated from the left buttock to the foot. Physical examination showed a normal gait. There was “exquisite” tenderness over the L4-S1 area with no muscle spasms. Thoracolumbar ROM was flexion to 80 degrees (normal 90) and combined ROM of 195 degrees (normal 240), with painful motion. Repetition increased pain without a decrease in ROM. There was normal strength, sensation, and reflexes in the bilateral lower extremities. The examiner stated “complaints of left hip and knee pain are not true joint pain and need not be addressed in the joint examination, as these are referred pains from his lower back problem.”

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the “L4-L5 and L5-S1 lumbar radiculopathy” condition 10%, coded 5243 (intervertebral disc syndrome [IVDS]). Of note, the NARSUM diagnosis was the same as the PEB diagnosis, although the MEB (NAVMED 6100/1) diagnosis was “displacement of lumbar intervertebral disc without myelopathy.” The VA rated “degenerative disc disease with herniated discs at L4-S1” condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing pain and limited ROM. There was no VA rating for lower extremity radiculopathy in evidence. The STR examinations did not support any back rating higher than 0% based on limitation of ROM, tenderness, spasm, abnormal contour or abnormal gait. However, the PEB- adjudicated a 10% rating, likely based on radiating pain symptoms. Although the VA examination supported a 10% back rating but no higher, for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and combined ROM (greater than 120 degrees but not greater than 235 degrees), there was no evidence of any radiculopathy at that examination.

The panel deliberated if there were either an unfitting back condition plus an unfitting radiculopathy, or a single unfitting back condition with radicular pain. The PEB disability rating was not under peripheral nerve coding, but under the general spine formula which specifically states “with or without symptoms such as pain (whether or not it radiates).” Additionally, the MEB stated “without myelopathy.” 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. Diagnostic imaging supported some level of radicular nerve irritation or involvement, and the MEB examination indicated bilateral lower extremity weakness. However, the NARSUM and VA examinations noted normal strength, reflexes and sensation. The panel adjudged the MEB examination was either an outlier, or that the noted decreased muscle

strength was due to pain. The panel adjudged that there was no associated non-pain radiculopathy for separate peripheral nerve rating. While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria as used by the PEB. There was no objective evidence of a radiculopathy with functional impairment (such as sustained weakness) that directly impacted fitness for duty. The panel therefore concluded that an additional disability rating was not justified on this basis.

With regards to rating the radiculopathy/back condition, there was insufficient limitation of ROM to support any rating above 10% on any of the examinations in evidence. There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis. There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the back radiculopathy condition.

BOARD FINDINGS: In the matter of the back radiculopathy condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. There are no other conditions within the panel’s scope of review for consideration. Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD, DC 20374-5023

IN   REPLY   REFER  TO:
1850
CORB:  003
20 May20

From: 

Director, Secretary of the Navy Council of Review Boards 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW  (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr dtd 3 Jul 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy on 5 Mar 2020 for appropriate action.

2.	On 20 March 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR of no change to your characterization of separation or disability rating assigned by the Department of the Navy's Physical Evaluation  Board.

3.	The Secretary's decision on your PDBR application is final and is not subject to appeal or additional review by the Board for Correction of Naval Records.

Copy to: PDBR