RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-00629
BRANCH OF SERVICE: MARINE CORPS	BOARD DATE:  20140219
SEPARATION DATE:  20070531

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (3381/Food Service) medically separated for a back condition.  The CI’s back pain began in February 2005 after he switched from being an air traffic controller to work in food service.  The back pain could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was placed on limited duty twice and then referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “lumbago” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “low back pain diskogenic with variable radiculitis L4-L5, degeneration with central disc herniation, structural pain without clear nerve compression” as unfitting, rated 10% with application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION: The CI writes: “All factors were not taken into consideration when these findings were determined.  One factor was that this injury was a result of conditions simulating war (26 USC, section 104).  This injury was in direct relation to my plantar fasciitis (Sept 2004 & May 2005, left ankle, right knee, and left knee (Feb & March 2005) and back injury (Jan 06)”.

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 low back condition is addressed below.  The contended plantar fasciitis, ankle and knee conditions were not identified by the PEB; and therefore, are not within the DoDI 6040.44 defined purview of the Board.  These and any condition 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 20070308	VA* - (1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain...	5237	10%	Lumbar Strain with Bulging Disc	5237	20%	20070403	
No Additional MEB/PEB Entries	Other x 9	20070403	
Combined:  10%	Combined:  60%	
* Derived from VA Rating Decision (VARD) dated 20070710 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Low Back Pain. The CI was first seen for low back pain (LBP) in 2005 and treated with medications and activity limitations.  He had recently changed his MOS from air traffic control to food service due to the job stress from his former MOS.  He had some benefit with treatment, but the LBP persisted and was aggravated by a 10-mile hike with gear.  Continued military physical fitness training also aggravated the LBP.  An X-ray on 24 February 2006 was normal.  Chiropractic treatment was added, but did not resolve the pain.  A magnetic resonance imaging (MRI) performed on 19 June 2006 showed focal disc protrusion at L4-5 with central canal stenosis.  The CI had an epidural steroid injection (ESI) a week later which provided some relief.  He continued conservative treatment in the chiropractic clinic and had a second ESI on 7 August 2006, which was not as beneficial as the first.  It appears that a third ESI was performed on 12 September 2006, but the records are not clear if this happened or if it provided benefit.  On 12 October 2006, he was evaluated by neurosurgery.  The examiner noted that there was no clear nerve compression on the previous MRI.  He had some limitation in the range-of-motion (ROM) of the back including flexion limited to 60 degrees.  He was not thought to be a surgical candidate and separation was recommended.  The CI continued conservative management until just after the PEB and two months after separation.  The narrative summary was dated 6 February 2007 and the examiner noted that the LBP had been present for 2 years and had not improved with conservative management including ESI on multiple occasions.  The CI reported that he could not stand for more than 30 minutes at one time.  The neurological examination was normal other than the pain.  Spasm was absent and a straight leg raise, a test for nerve root irritability, was noted as “moderate.”  A week later, ROM testing in physical therapy noted normal flexion, but reported the remainder of the ROM measurements in terms of centimeters (cm) rather than degrees.

At the VA Compensation and Pension (C&P) examination performed on 3 April 2007, 2 months after the MEB examination and a month prior to separation, the CI reported refractory pain which had required 3 days of bed rest in the past year.  His gait and posture were normal and no assistive devices were in use.  Abnormal weight bearing was absent.  There was tenderness of the lumbar spine without muscle spasm.  With repetition, there was no additional loss of ROM although other DeLuca criteria were present.  The straight leg raise was negative bilaterally and the neurological examination was normal.  The 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)	MEB ~3 Mo. Pre-Sep	PT ~3 Mo. Pre-Sep	VA C&P ~ 1 Mo. Pre-Sep	
Flexion (90 Normal)	60	90	35	
Combined (240)	---	---	170	
Comment		Measurements other than flexion in cm		
§4.71a Rating	20%	0%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both coded the back condition as 5237, lumbosacral strain, but rated it at 10% and 20% respectively.  The Board observed that the ROM limitation in flexion corresponds to a 20% rating in both examinations.  While the physical therapy examination showed normal flexion, the other measurements were listed in cm rather than degrees reducing the utility of this examination.  There was no injury in the record to explain the significant difference in flexion between the physical therapy and C&P examinations.  Regardless, both the limitation in flexion measured by both the MEB examiner and VA examiner justify a 20% rating.  The Board considered the coding options for the back, but found no route to a rating higher than 20%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the back 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.  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 LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Low Back Pain Diskogenic with Variable Radiculitis L4-L5 Degeneration with Central Disc Herniation, Structural Pain without Clear Nerve Compression	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130529, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: 	(a) DoDI 6040.44
(b) PDBR ltr dtd 1 Sep 14 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 1 Jul 14 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 12 Aug 14 ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a.	XXXXXXXXXXXXXXXXXXXX, former USN: Disability separation with a final disability rating of 20% (increased from 10%) effective the date of member’s discharge.

b. XXXXXXXXXXXXXXXXXXXX, former USMC:  Disability separation with a final disability rating of 20% (increased from 10%) effective the date of member’s discharge.

c. XXXXXXXXXXXXXXXXXXXX, former USN: Disability separation with a final disability rating of 20% (increased from 10%) effective the date of member’s discharge. 

3. Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.