RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01309
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20040430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Aviation Ordinance Systems Technician, medically separated for “low back pain with degenerative disc disease,” with a disability rating of 10%.

CI CONTENTION:  The CI made no specific contention.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited 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.  Any conditions outside the Board’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 Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is based upon a 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 at the time of separation.  The Board 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 Board 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 - 20040115	VARD - 20040607	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain with Degenerative Disc Disease	5295	10%	Residuals, Thoracolumbar Central Disc Protrusion L4-L5 within a Posterior Annular Tear, Small Central Disc at L5-S1 and Degenerative Joint Disease	5242-5243	10%	20031029	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Low Back Pain with Degenerative Disc Disease.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain began in 1995 and worsened in 2002 after completing a martial arts course.  MRI studies completed in December 2002 showed disc protrusion at L4-5 with posterior annular tear and impingement of the L5 nerve roots, bilateral mild to moderate central canal stenosis and a small central disc bulge at L5-S1 with no focal neural impingement.  At the time of the neurosurgery appointment on 30 January 2003, the CI reported low back pain (LBP) and numbness in the right leg when he ran.  On examination there was no muscle spasm or tenderness.  Motor, sensory and reflexes were normal and examination for radicular signs was negative.  Thoracolumbar range of motion (ROM) was flexion of 60 degrees (normal 90).  A computed tomography scan (CT) of the lumbar spine showed minimal disk bulges at L4-L5 and L5-S1 with no significant central canal stenosis.  There was mild to moderate neural foraminal narrowing at L5-S1 secondary to posterior facet hypertrophy.  At the NS follow-up on 13 February 2003 non-surgical treatment was recommended.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “mechanical low back pain” and “degenerative disc disease at L4-5 and L5-S1” for PEB adjudication.

Thoracolumbar ROM measurements performed at a neurosurgery consult on 12 September 2003, showed flexion of 60 degrees and mild tenderness, but no spasms.  The CI reported he was back on full duty, but could not run well.

At the 29 October 2003 VA Compensation and Pension (C&P) evaluation, performed 6 months before separation, the CI reported LBP that occurs one time a month lasting for 12 hours with pain that travelled down the right leg rated 8/10.  The CI stated his back condition did not cause incapacitation and had lost no time from work.  Physical examination showed a normal gait and posture with no tenderness or spasm.  Straight leg raise testing to elicit radicular symptoms was positive on the right only, there were no complaints of radiating pain on movement.  Thoracolumbar ROM recorded active flexion to 75 degrees, extension to 30 degrees (normal 30), right lateral flexion to 20 degrees (normal 30), left lateral flexion to 20 degrees (normal 30), right rotation to 45 degrees (normal 30), left rotation to 45 degrees (normal 30) with a combined ROM of 205 degrees (normal 240).  ROM was painful.  There were no incapacitating episodes in the past 12 months.  
 
The MEB NARSUM examination on 4 November 2003, 6 months prior to separation, noted complaints of constant LBP and numbness and tingling in his lower extremities with running.  The CI reported he was unable to sit or stand for prolonged periods or do any heavy lifting.  Physical examination showed no tenderness or muscle spasm.  Strength, reflexes and sensory were intact.  Forward flexion was limited.  At the MEB examination (recorded on DD Form 2807 Report of Medical History and DD Form 2808 Report of Medical Examination) in November 2003, 5 months prior to separation, the CI reported back pain that radiated down his posterior right leg.  Physical examination showed no tenderness with normal strength, reflexes, and sensation and a negative straight leg raise test.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5295 (lumbosacral strain from interim spine rules).  The VA rated the back condition 10% coded 5242-5243 (degenerative arthritis of the spine-intervertebral disc syndrome), based on the VA C&P examination 6 months before separation, citing painful decreased ROM.  The Board agreed that a 10% rating, but no higher, was justified 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) reported on the VA examination.  The NARSUM examination stated limited flexion, but did not include actual ROM measurements.  The only other ROM measurement was an incomplete measurement recorded in September 2003.  The VA examination proximate to separation was more detailed and reported ROM performed after repetitive motion.  Therefore, the Board placed greater probative value on the VA examination.  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.  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI reported radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  The Board therefore concluded that an additional disability rating was not justified on this basis.  Although the PEB utilized a VASRD code that was not in effect on the date of the CI’s separation, the Board arrived at the same 10% rating utilizing the VASRD codes in effect on that date, as did the VA.  Thus, there is no rating benefit to the CI to recommend a change in the PEB’s adjudication.  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 back condition.  

BOARD FINDINGS:  In the matter of the low back 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.  

The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130909, with attachments
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

      In accordance with reference (a), I have reviewed the cases listed below and 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:

		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC