RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXX		         BRANCH OF SERVICE:  marine corps
CASE NUMBER:  PD201100007 		         SEPARATION DATE:  20080830
BOARD DATE:  20111206

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty member, SSgt/E-6 (6116 / Tilt Rotor Mechanic), medically separated for degenerative disk disease (DDD).  The CI’s low back pain (LBP) began in 2004 while doing physical training and was not attributed to any specific trauma or injury.  The CI failed conservative measures of physical therapy, medication and chiropractor care.  The option of surgery was discussed, but the CI declined (considered reasonable).  The CI did not respond adequately to perform within his military occupational specialty (MOS) or meet physical fitness standards.  He was placed on his third limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  “Other and unspecified disc disorder of lumbar region and lumbago” were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E.  No other conditions appeared on the MEB’s submission.  Other conditions included in the Disability Evaluation System (DES) packet will be discussed below.  The Informal PEB (IPEB) adjudicated DDD as unfitting, rated 20% with application of the Veterans Administration Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated with a 20% disability rating.

CI CONTENTION:  The CI contends for a higher rating for his lumbar spine condition (disc) due to worsening of his disability over time.  The CI states: “I was discharge [sic] for a back condition which my doctor diagnose [sic] as a full annular tear to the L5-S1 disc. As anyone with a back problem can tell you some days are better than others. In my case I need to constantly take pain killer just to be able to do everyday functions. Some days I feel better and I only have to take a minimal dose of my pain killer but others I have to max out on them.  My physical exam for my Medieal [sic] Evaluation Board only took a snapshot of my condition at the time I took the exam and it was not at all and [sic] accurate representation of my condition. The VA also used the same method for my evaluation. In order for me to had [sic] attended my physical exam for both the VA and Medical Board I had to take my pain kiIIers. This reduced my pain level therefore allowing me to have a greater range of motion that I would not have without those pain killers. Taking my pain medication as prescribed reduce my pain level but if for some reason or another I would miss a doze [sic] I could barely move once my pain killer wore off completely. When my condition worsen [sic] in December of 2006 I was taking only two pain killers. Shortly after discharge the number of pain killers required to keep my pain level down was up to three. This has only gotten worse and it is taking more and more pain medication to keep me function [sic] so I can hold a regular job. The highest number of pain killers I have been on is 5 and thanks to acupuncture I'm now down to 4. This is a combination of pain killer [sic] that have allowed my pain level to remain at a range of 4 to 6 on a 1 to 10 scale. Whenever I do miss a doze [sic] my pain level increases to 7 or 8 on a good day.  I'm unable to find good paying jobs because of my condition and I have already lost two job offers because the companies [sic] doctors will not take the liability of having someone in my condition in their payroll is good for business. The financial problems my back have [sic] cause [sic] could greatly be alleviated with a change in my disability rating. Thank you for the opportunity to be heard and I look forward to your reply.”

RATING COMPARISON: 

Service IPEB – Dated 20080606	VA (1 Mo. Pre-Separation) – All Effective 20080831	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Disk Disease	5243	20%	S/P Annular Tear L5-S1 w/Residual Intervertebral Disc Syndrome	5243	20%	20080722	
Low Back Pain	Cat 2					
↓No Additional MEB/PEB Entries↓	R Sciatic Nerve Paresthesia	8520	10%	20080722	
	R Knee Patellofemoral Syndrome	5099-5019	10%	20080722	
	R Ankle Strain	5299-5271	10%	20080722	
	Tinnitus	6260	10%	20080716	
	0% x 5 / Not Service Connected x 3	20080722	
Combined:  20%	Combined:  50%	

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impact that his service-incurred condition has had on his current earning ability and quality of life.  It is a fact, however, that the DES has neither the role nor the authority to compensate Service members for anticipated future severity or potential complications of conditions resulting in medical separation.  The Board evaluates Department of Veterans’ Affairs (VA) evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation.  

Degenerative Disk Disease Condition.  The CI’s had onset of severe LBP during a PT test in 2006 with pain radiating to the right thigh.  There were three spine examinations in evidence, two with goniometric range-of-motion (ROM) measurements, which the Board weighed in arriving at its rating recommendation.  The exams were the MEB exam, the physical therapy (PT) range of motion evaluation and the VA compensation and pension (C&P) exam.  All three of these exams are summarized in the chart below.

Goniometric ROM - Thoracolumbar	MEB ~ 7 Mos. Pre-Sep	PT ~3 Mos. Pre-Sep	VA C&P ~ 1 Mo. Pre-Sep 	
Flex (0-90)	“Full ROM”	0-60⁰	0-40⁰ 	
COMBINED (240)		165⁰	190⁰	
Comment	Normal posture and gait; no muscle spasm; painful ROM; no documentation of incapacitating episodes	Difficulty rising from positions secondary to pain; + SLR on right 	Normal posture and gait.  No muscle spasm; Neg SLR; Painful ROM; +Deluca; normal motor but decr sensory R leg; erectile dysfunction	
§4.71a Rating	10%*	20%	20%	
	*With application of §4.59

The narrative summary (NARSUM) exam and the C&P exam noted normal posture and gait with the absence of muscle spasm.  All three exams documented painful motion, with both the physical therapy and the C&P exam also documenting limited range of motion.  The MEB exam did not include goniometric range of motion measurements.  The CI was found to have a positive straight leg raise (SLR) test on the right at the physical therapy exam.  The VA exam noted normal motor function with negative SLR testing, but documented numbness in the lateral aspect of the right leg and right foot.  Additionally, the VA examiner found that repetitive use of the lower back resulted in pain, fatigue, weakness and lack of endurance, but did not result in further decrease in range of motion.  A lumbar MRI noted a central focal disk bulge at L5-S1 without narrowing of the neural foramina.  That study also noted two benign Tarlov cysts at the S2 and S3 level, which were felt to be developmental in nature, but which may have contributed to the CI’s radicular symptoms.  A CT diagnosed a central large full-thickness annular tear at L5-S1 with mild disc degeneration and associated broad-based disc extrusion which was central and asymmetric to the right.  The L5-S1 discogram performed the same date, reproduced the CI’s pain symptoms.  

The PEB and the VA utilized identical coding for intervertebral disc syndrome and both rated at 20% based upon limitation of motion.  There was no documentation of incapacitating episodes to justify rating based on that criteria.  The degree of limitation of lumbar spine flexion documented at the physical therapy exam and the C&P exam meets the criteria for the 20% rating’s “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  

Finally, the Board noted that there was no evidence of a ratable peripheral nerve impairment.  The CI did report complaints of periodic pain radiating into his right thigh and he also complained of erectile dysfunction due to his lumbar spine condition.  A positive SLR test was documented at the PT ROM exam, however, there were no associated motor findings and the CI had normal posture and gait.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no functional implications that were reflected in the permanent profile or the NMA.  No motor impairment was recorded that can be linked to significant physical impairment.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on nerve impairment.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s 20% rating decision for the degenerative disk disease condition.  

Other PEB Conditions.  The condition of low back pain was adjudicated as a related Category 2 diagnosis.  The pain component of the CI’s back condition is subsumed in the General Rating Formula for Diseases and Injuries of the Spine and was included in the overall rating for the unfitting degenerative disk disease condition as discussed above.  

Remaining Conditions.  The conditions of tinnitus, right ankle pain and right knee tendonitis were noted in the VA rating decision proximal to separation.  Several additional non-acute conditions or medical complaints were also documented at the MEB history and physical.  None of these conditions were significantly clinically or occupationally active during the MEB period, none were the basis for limited duty and none were implicated in the non medical assessment.  These conditions were reviewed by the action officer and considered by the Board.  It was determined that none could be argued as unfitting and subject to separation rating.  The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the degenerative disk disease condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the tinnitus, right ankle pain and right knee tendonitis conditions or any other medical conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:  

UNFITTING CONDITION	VASRD CODE	RATING	
Degenerative Disk Disease	5243	20%	
COMBINED	20%	

______________________________________________________________________________

The following documentary evidence was considered:

Exhibit A.  DD Form 294 dated 20101227 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans' Affairs Treatment Record