RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX 	CASE:  PD-2013-01404
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20141106
SEPARATION DATE:  20031115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Cpl/E-4 (0151 / Administration) medically separated for lumbar degenerative disc disease.  The condition could not be adequately rehabilitated to maintain his required level of fitness or meet the requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3/U3 profile and referred for a Medical Evaluation Board (MEB).  The lower back condition characterized as “lumbar degenerative disc disease with grade I spondylolisthesis, pain is slight and frequent” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded one other condition (cervical degenerative disc disease) to the PEB.  The Informal PEB (IPEB) found the CI fit to continue on active duty.  A subsequent PEB reconsideration adjudicated “lumbar degenerative disc disease with grade I spondylolisthesis” as unfitting, rated 10% with application of application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting as Category III.  The CI made no further appeals and was medically separated.  

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

RATING COMPARISON:  

Service Reconsideration PEB – Dated 20040930	Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Degenerative Disc Disease with Grade I Spondylolisthesis	5243	10%	Degenerative Disc Disease , Lumbar Spine, Status Post Lumbar Discectomy"'	5243	0%	
STR
	
Other x 1  (Not in Scope)	Other x 2 	
Rating:  10%	Combined:  0%	
*Derived from VA Rating Decision (VARD) dated 20050525.

ANALYSIS SUMMARY:  

Low Back Condition.  Review of the service treatment record (STR) indicates that the CI had persistent low back pain after a motor vehicle accident in November 2002.  The pain occasionally radiated into the right leg.  The CI described his pain as a constant 4/10 pain which was burning in nature, exacerbated by vibration and activity, with weekly exacerbations to 7-8/l0.  He also reported right lower extremity burning pain radiating from his right buttock to posterior knee.  Conservative therapy and two epidural steroid injections (into the spinal area) did not relieve his symptoms.  Magnetic resonance imaging (MRI) showed arthritis of several vertebras and a single disc bulge with narrowing of the foramina (nerve outflow track).  The CI did not want to proceed with invasive surgery (lumbar fusion) but was unable to get approval for a prosthetic disc implant due to administrative issues.  

An electromyelogram and nerve conduction study was normal without evidence of neuropathy, myopathy, or radiculopathy.  The MEB exam, 6 months prior to separation, detailed “back flexion” of 90⁰ (normal 90⁰), combined ROM of 220⁰ (normal 240⁰), normal strength of lower extremities (slight decrease in right hip flexion) and normal gait.  There was no mention of spinal contour.  

The NARSUM, written 7 months prior to separation, detailed “range-of-motion (ROM) of low back 0-65 degrees (normal 0-90 degrees), side bending to 30 degrees bilaterally (normal 30 degrees),” without a specific reference to extension or measurement of rotation.  The CI had normal sensation and strength of the legs, without mention of spinal contour or gait.  

No VA Compensation and Pension (C&P) exam was performed proximal the time of separation.  The VA Rating Decision (VARD) dated 6 months post separation granted service connection for “degenerative disc disease, lumbar spine, status post lumbar discectomy” using the service treatment record (citing the MEB ROMs) and hospital treatment reports from December 2004 to January 2005 indicating lumbar discectomy surgery performed on 13 January 2005 (2 months post separation).  A remote C&P exam, accomplished over 8 years after the CI’s separation, reported decreased ROMs and awarded a 10% rating effective in December 2012.  

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and the VA based their ratings on the ROM measurements from the MEB exam, coded 5243, and the General Rating Formula for Diseases and Injuries of the Spine.  The PEB recommended a rating of 10%, while the VA awarded a 0% rating (omitted examination).  This Board noted the combined ROM of 220 degrees from the MEB exam, would warrant a 10% rating (combined ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees) using the General Formula.  The Board also noted the forward flexion measurement from the NARSUM exam, would also qualify for a 10% rating (forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees), although this exam did not have a complete set of ROM measurements.  The Board did not see any evidence of abnormal spinal contour, abnormal gait, incapacitating episodes (physician prescribed bed rest), or other evidence that would support a higher rating.  

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 low 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 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. 

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130913, 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 26 Feb 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 USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN