RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01639
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20140605
SEPARATION DATE:  20040415

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E-6 (1142/Generator Mechanic) medically separated for a back condition.  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 underwent a Medical Evaluation Board (MEB).  The back condition was found medically unacceptable, and was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “failed laminectomy syndrome with pain consistent with disk desiccation” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  Two other low back conditions were found to be Category 2 (related to the unfitting condition).  The CI made no appeals at that time and was separated.

CI CONTENTION:  “My back was the reason I was found unfit to keep serving in the Marine Corps.  From the date I was released my back has gotten worse over the period of time.  It is affecting my job and my daily living.  I have trouble with it every day of my life and it causes me pain every day.  I have had a surgery in 2006 at the VA in Memphis.  My pain is chronic lower back pain consisting of going through my hips and down my right leg.  My leg goes numb at times and I have falls.  I walk with a cane and a back brace now.  I also take three pain medicines to ease the pain on a daily basis.  This also is affecting my work and daily functions.  Plus I am diagnosed with PTSD through the VA at rating of 70%.  But my back is getting worse and the pain as well is affecting my work and daily function.”

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 back condition is addressed below.  No other conditions are within the defined purview of the Board.  The posttraumatic stress disorder was not identified by the PEB, and thus is not within the DoDI 6040.44 defined purview of the Board.  Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Naval Records.

RATING COMPARISON:

Navy IPEB – dated 20040209	VA – ( 1 week Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Failed Laminectomy Syndrome	5295	10%	Disc Degeneration at L5-S1, Status Post Back Surgery	20%	5242	20040408	
Status Post Back Surgery	Category 2					
History of Disk Herniation	Category 2					
Other x 0	Other x 7	20040408	
Rating:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20040517(most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his back condition continues to burden him and the significant impact it has had on his quality-of-life.  It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates.  The DES has neither the role nor the authority to compensate members for future severity or potential complications of conditions.  That role and authority is granted to the Department of Veterans Affairs (DVA).  The Board evaluates DVA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation.  While the DES considers all of the CI's medical conditions, compensation can only be offered for those conditions that cut short a member’s career, and then only to the degree of severity present at the time of separation.  The DVA; however, is empowered to compensate for all service-connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the CI’s disability rating should the degree of impairment change over time.

Back Condition.  In May 2002, the CI injured his back while doing some heavy lifting.  Two months later, he underwent a surgical procedure on his lower back.  After surgery, his symptoms improved.  However, in 2003 he had a significant increase in symptoms and an MEB was initiated.  The MEB narrative summary was dated 12 December 2003.  On physical examination (PE), the CI was in no apparent distress.  The surgical scar was well healed.  There was painless range-of-motion (ROM) of both hips.  Straight leg raise (SLR) caused pain to radiate down the right leg.  Deep tendon reflexes and manual muscle strength tests were normal in both legs.  Thoracolumbar ROM measurements were not recorded.  

On 8 April 2004, a week prior to separation from service, the CI had a VA Compensation and Pension (C&P) exam.  He reported pain in the lower back, radiating to the right leg.  Posture and gait were normal.  PE of the lower back revealed paraspinal muscle spasm and tenderness, with some straightening of lumbar lordosis.  There was no evidence of muscle weakness.  SLR was positive on the right, and negative on the left.  There was no evidence of radiation of the pain.  Thoracolumbar ROM was measured, and is summarized in the chart below.

Back ROM
(Degrees)	
VA C&P ~ 1 week Pre-Sep
	
Flexion (90 Normal)	60	
Extension (30)	20	
R Lat Flexion (30)	25	
L Lat Flexion (30)	25	
Right Rotation (30)	30	
Left Rotation (30)	30	
Combined (240)	190	
Comment	Pain with motion	
VASRD §4.71a rating	20%	

The Board directs its attention to its rating recommendation based on the above evidence.  The Navy PEB and the VA chose different coding and rating options for the back condition.  The PEB used diagnostic code (DC) 5295, which was out-of-date at the time that the CI separated from service.  The VA chose DC 5242 (degenerative arthritis of the spine).  The Board carefully reviewed all available evidence and directs attention to its rating recommendation.  The Board considered that the April 2004 C&P exam performed just a week prior to separation and therefore had significant probative value.  At that exam, thoracolumbar forward flexion was 60 degrees.  IAW VASRD §4.71a, a rating of 20% is warranted when thoracolumbar forward flexion is greater than 30 degrees, but not greater than 60 degrees.  The Board also considered the matter of peripheral neuropathy.  After reviewing all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  The CI clearly had radicular symptoms.  However, there was insufficient evidence of muscle weakness and there was no performance-based evidence that the radicular condition impacted his military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at separation.  As noted above, two other low back problems (“status post right-sided L5-S1 laminotomy and discectomy” and “history of right L5-S1 disc herniation”) were adjudicated by the PEB as Category 2 (related to the unfitting failed laminectomy syndrome).  The Board determined that these two low back problems were indeed related to the unfitting failed laminectomy syndrome and did not constitute separately unfitting conditions for disability rating purposes.  Therefore, it is appropriate for “status post right-sided L5-S1 laminotomy and discectomy” and “history of right L5-S1 disc herniation” to be considered as Category 2.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends by majority decision (2:1 vote) a disability rating of 20% for the back condition.  It is appropriately coded 5299-5243 and IAW VASRD §4.71a, meets criteria for the 20% rating level since thoracolumbar forward flexion was greater than 30 degrees, but not greater than 60 degrees.

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, the Board recommends by majority decision (2:1 vote) a disability rating of 20%, coded 5299-5243, IAW the VASRD §4.71a which was in effect at the time of the CI’s separation from service.  The single dissenting voter did not elect to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, 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, due to failed laminectomy syndrome	5299-5243	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130915, 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 29 Dec 14 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 13 Jan 15 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 29 Dec 14 ICO XXXXXXXXXXXXXXXXXX
(e) PDBR ltr dtd 29 Dec 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 USMC: Disability separation with a final disability rating of 20 percent (increased from 10%) effective date of discharge.

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

c. XXXXXXXXXXXXXXXXXXXX, former USMC: Disability separation with a final disability rating of 20  percent (increased from 10%) effective date of discharge. 

d. XXXXXXXXXXXXXXXXXXXX, former USN: Disability separation with a final disability rating of 20 percent (increased from 10%) effective date of 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.