RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300193
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20131031
SEPARATION DATE:  20090730

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (0651/Data Network Specialist) medically separated for a lumbar spine condition.  Back pain began in 2005 after an injury during physical training.  The back was further injured in 2006 during a burning multipurpose wheeled vehicle evacuation in Iraq.  Conservative treatments were unsuccessful.  Spinal fusion surgery was performed in 2008.  Chronic low back pain (LBP) was diagnosed and the condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The lumbar spine condition, characterized as “lumbago” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded four other conditions (see rating chart below) for PEB adjudication.  The PEB adjudicated “chronic low back pain” as unfitting, rated 20%.  The remaining conditions were determined to be Category III, not separately unfitting and not contributing to the unfitting condition.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting LBP condition is addressed below.  The not unfitting mental health, lower extremity pain, and partner relation problem conditions were not contended by the CI; and, thus are not within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records.

RATING COMPARISON:

Service IPEB – Dated 20090603	VA* - (4 Mos. Pre -Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5241	20%	DDD – L-Spine s/p Fusion	5241-5243	20%	20090320	
PTSD	CAT III	PTSD	9411	NSC	20090415	
Major Depressive Disorder (Single episode, Chronic, Severe)	CAT III	Depression, Not Otherwise Specified	9434	30%	20090415	
Chronic  LLE Pain, 3rd Degree Burn	CAT III	Residual Left Calf Scar	7804	10%	20090320	
		Residual Left Calf Scar	7801	20%	20090320	
Partner Relational Problem	CAT III	No VA Entry	20090415	
No Additional MEB/PEB Entries	Other x 7	20090320	
Combined:  20%	Combined:  70%	
* Derived from VA Rating Decision (VARD) dated 20100105 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA), but not determined to be unfitting by the PEB.  However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.  The Board’s authority as defined in DoDI 6040.44, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  The Board utilizes service and DVA evidence proximal to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-month interval for special consideration of post-separation evidence.  Post-separation evidence is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Chronic Low Back Pain.  The CI first injured his back lifting equipment on 5 August 2005, and was treated periodically over the next few months with conservative therapy, including muscle relaxants, physical therapy, traction, transcutaneous electrical nerve stimulation and analgesics.  Prior to deploying to Operation Iraqi Freedom in February 2006, he noted back pain on his pre-deployment health assessment questionnaire.  Upon his return, his post-deployment health re-assessment documents that his back pain had worsened and noted left leg pain secondary to a partial thickness burn.  Conservative therapy could not relieve his back symptoms.  Magnetic resonance imaging performed on 10 May 2007 revealed L5-S1 degenerative disc disease.  Neurosurgical evaluation performed in June 2007, 25 months prior to separation, noted back pain, bilaterally in the area of L5, exacerbated by sitting, standing or lifting.  Motor strength in all lower extremities and deep tendon reflexes (DTRs) were normal.  Sensory examination was also normal, except in the immediate vicinity of a burn scar on the posterior aspect of the left lower leg.  Straight leg raise and flexion, abduction, external and rotation tests were negative.  Gait was normal.  Degeneration of the disc was noted, but no evidence of nerve root compression or radiculopathy were presented.  Although surgical records were not in evidence, the available service treatment records indicated he underwent L4-S1 surgery to address the disc disease on 19 June 2008.  At the MEB exam, on 8 October 2008, 3 months after surgery and 10 months prior to separation, the CI recorded that the pain from his “back and leg injury limit ability to work.”  He reported weakness and numbness in the left leg.  The MEB physical exam noted “decreased ROM” in flexion, extension and rotation.  A positive bilateral straight leg test was noted, as was bilateral 4/5 muscle strength in the lower extremities.  The commander’s non-medical assessment, 8 months prior to separation, not recommending retention, stated that the CI could lift only 10 pounds, could not perform physical training, and that the CI is “limited to performing administrative duties…due to physical limitations resulting from his injuries.”  The narrative summary (NARSUM), 4 months prior to separation, noted constant “low back pain with sharp pain radiating down left buttock and leg and into the foot,” exacerbated by lifting, pulling, pushing, twisting, “prolonged standing, walking or sitting.”  The NARSUM musculoskeletal examination noted normal sensation throughout the lower extremities, except in the vicinity of a scar from partial thickness burn, but 4/5 strength bilaterally, with normal DTRs and absence of tenderness to palpation over the spine.  A surgical scar was noted.

At the VA Compensation and Pension exam performed 4 months prior to separation, the CI reported that the pain, which had “radiated down to the left foot,” had “considerable improvement” after his L5-S1 fusion.  However, post-surgery, the CI still reported sharp pain, as high as 5/10, exacerbated by physical activity.  He noted pain with dressing, bending, walking, driving or sleeping.  Upon examination, there was no muscle spasm, no tenderness to palpation, and no sign of radiation of pain on movement.  Weakness, fatigue and lack of endurance were noted in the thoracolumbar spine.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	JDETS Worksheet
4 Mo. Pre-Sep	VA C&P 
 4 Mo. Pre-Sep	
Flexion (90)	50	45	
Extension (30)	15	20	
R Lat Flexion (30)	20	30	
L Lat Flexion (30)	15	30	
R Rotation (30)	30 (35)	30	
L Rotation (30)	30 (35)	30	
Combined (240)	160	185	
Comment	+SLR, experiences considerable pain when lying on spine; Normal DTRs, sensation intact (except over LLE burn scar; strength 4/5 b/l; -TTP over spine.	+Painful motion; Gait normal, Spine nontender; No muscle spasm or abnormal spinal curvature, No reduction of ROM with repetitive movement.	
§4.71a Rating	20%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition at 20% under the 5241 code (spinal fusion), while the VA also assigned a 20% rating under a combination 5241-5243 code (intervertebral disc syndrome).  Board members agreed that flexion measurements in evidence supported a rating of 20%, and that criteria for the next higher 40% rating were absent.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet even the 10% criteria under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic LBP condition.

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.  In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

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	
Chronic Low Back Pain	5241	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130423, 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
       (b) CORB ltr dtd 9 Apr 14

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandums, 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, XXX XX XXXX