RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2013-01334	
BRANCH OF SERVICE:  MARINE CORPS 	 BOARD DATE:  20150116
SEPARATION DATE:  20040630		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Rifleman) medically separated for mid and low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards and he was referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “central canal stenosis,” “right S1 HNP displacing the S1 nerve root,” “mid back pain,” “low back pain” and “right lower extremity radicular pain,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “mid and low back pain due to central canal stenosis and right S1 HNP displacing the S1 nerve root,” as unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining radicular condition was determined to be Category II (contributing to the unfit condition).  The CI made no appeals and was medically separated. 

CI CONTENTION:   He was not evaluated for his headache condition.  His complete submission is at Exhibit A.

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 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/Naval 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 confined to review of medical records and all available evidence for application of the 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 IPEB – Dated 20040421	VA - (4 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mid & Low Back Pain …	5243	20%	DDD & Early DJD of the Lumbar  Spine	5242	20%	20041030	
Right LE Radicular Pain	CAT II	No VA Condition	
Other x 0 (Not In Scope)	Other x 1	
Combined:  20%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20041206 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:

Back.  The narrative summary noted the CI injured his back lifting heavy equipment while deployed.  Notes in the service treatment record indicated the CI initially reported low back pain (LBP).  Serial examinations were normal except for painful range-of-motion (ROM).  Magnetic resonance imaging performed on 8 July 2003 showed lower lumbar disc herniation with displacement of the right S1 nerve root and degenerative disc disease of the thoracic spine with mild canal stenosis, but no cord compression.  At an orthopedic evaluation performed on 17 July 2003, the CI reported mid and lower back pain, but denied lower extremity (LE) pain.  The examination showed “mildly limited” lumbar ROM and the examination was otherwise normal; physical therapy (PT) was recommended.  At a follow up orthopedic visit on 29 July 2003 the CI reported that PT worsened his pain and he had attended a single session.  He reported persistent LBP with activity that radiated to the right buttock.   The examiner noted the CI’s symptoms were not typical and recommended epidural steroid injection (ESI), in part for diagnostic clarification.  A note in the STR dated 8 July 2003 indicated the CI was advised to “remain in bed, laying down, drink plenty of fluids” for headache and back pain after the ESI.  A subsequent phone call to the doctor by the CI’s wife 4 days later indicated that headaches continued.  A neurological consult 12 August 2003 noted the CI had an ESI a week earlier with temporary improvement of LBP, but with a subsequent headache.  The neurological examination was normal including a normal gait and electro diagnostic studies (EMG) were ordered to evaluate for radiculopathy.  EMG performed on 20 August 2003 noted non-specific findings of localized slowed nerve conduction in both the left and right LE, of uncertain clinical significance.  At a follow-up neurological evaluation 19 September 2003 the CI reported LBP that radiated to the left calf.  The examination was “essentially normal” with full flexion and negative straight leg raise testing (SLR).  The neurologist noted that the post-spinal headaches had resolved with specific treatment (blood patch).  The CI was referred to PT again and at the initial evaluation 25 September 2003, the CI reported LBP with occasional pain radiation to the left buttock and hamstring and constant radiating pain to the right buttock.  The PT examination noted normal ROM, except for extension described as “limited approximately 75% in extension”, associated with right buttock pain.  Strength, sensation, and reflexes of the LE were normal and there was no tenderness of the low back or buttocks.  At the final neurological evaluation in the STR 31 October 2003 the CI reported LBP that radiated to the right hamstring.  The CI reported headaches three to four times per week and that he did not take any medication for them.  The neurologist noted the EMG (noted above) and examination were normal.  The neurologist changed the CI’s anti-inflammatory medication and indicated the headaches might be migraines and recommended Tylenol as needed.  At the MEB examination, 3 December 2003, 7 months prior to separation, the CI reported back and right LE pain, and denied numbness, tingling, or bowel or bladder symptoms.  The MEB physical exam noted a non-antalgic gait.  There was tenderness to palpation (TTP) over the lower lumbar spine, with normal flexion and bilateral lateral bending, but extension caused pain.  Strength, sensation, and reflexes of the LE were normal and SLR was negative.  

At the VA Compensation and Pension (C&P) examination, 30 October 2004, performed 4 months after separation, the CI reported working as a forklift operator.  The CI reported daily LBP that radiated down his left leg to his calf.  He reported exacerbations every three weeks that incapacitated him for several days and required medication and bed rest.  The CI reported that his back pain had improved with PT but that he stopped doing the exercises after discharge and his back began to hurt more after that.  The VA exam showed normal posture and gait.  Thoracolumbar (TL) ROM was normal, except for pain limited extension of 20 degrees.  There was TTP of the low back with muscle spasm noted and normal LE strength, sensation, reflexes and SLR.  The VA Rating Decision 6 December 2004 noted that “You reported multiple episodes of incapacitating low back pain within the last year.  Reviewed medical evidence did show an incapacitating episode.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome) and right lower extremity radicular pain as a related Category II condition.  The VA rated the back condition 20%, coded 5242 (degenerative spinal arthritis).  The Board agreed that the evidence in record supports a 10% rating according to current VASRD spine rating rules based upon combined TL ROM of “greater than 120 degrees but not greater than 235 degrees.”  However, IAW DoDI 6040.44 the Board may not recommend a lower combined rating than that conferred by PEB. Therefore, the Board reviewed to see if there was any path to a higher evaluation, but there was no ROM evidence or evidence of “muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour” to support the next higher evaluation.  

The Board next considered if rating based upon incapacitating episodes provided a higher evaluation.  According to the VASRD, for the purposes of evaluation under 5243 an incapacitating episode requires bed rest prescribed by a physician and treatment by a physician.  There was one note in the STR that indicated prescribed bed rest for headache and back pain after an ESI, but in context appears to have been a few days, mostly for the post-spinal headache.  At the C&P examination, the CI reported incapacitating episodes for “several days” every three weeks in the past year, but the VARD indicated documentation of a single incapacitating episode.  The 10% rating based upon incapacitating episodes is specified by the VASRD as incapacitating episodes in the past 12 months of total duration of “at least one week but not greater than two weeks”, and the 20% rating as total duration of “at least two weeks but less than four weeks”.  The Board noted that the record corroborated one incapacitating episode and considered this insufficient support for the 20% rating.  The Board next deliberated whether there was evidence to support recommendation of additional rating for right LE radiculopathy.  The PEB adjudicated the radiculopathy as a Category II condition, which is a condition that contributes to the unfitting condition, but is not separately ratable.  In the case of a radiculopathy, the presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend as additionally unfitting.  While the CI experienced 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).”  Therefore the critical decision is whether or not there was evidence of functional impairment due to motor or sensory deficits.  However, the EMG of the bilateral LE was normal and all examinations in record noted normal LE strength, sensation, and reflexes.  Thus, there is no evidence to support recommending the radicular pain as separately unfitting and the Board concluded that no additional disability rating could be recommended.  Therefore, 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:  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 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. 

RECOMMENDATION:  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, 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 29 Sep 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their 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:

- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN