RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX                                                                       CASE:  PD-2013-01840
BRANCH OF SERVICE:  MARINE CORPS                                                           BOARD DATE:  20140724
Separation Date:  20040215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPL/E-4 (5831/Military Police/Corrections) medically separated for low back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The low back pain, characterized as “lumbar degenerative disc disease (DDD)” and “low back pain (LBP)”, was forwarded to the Physical Evaluation Board (PEB).  No other conditions were submitted by the MEB.  The PEB adjudicated “low back pain” as unfitting, rated at 10%.  The lumbar DDD was determined to be Category II; “related” (or contributing) to the unfit condition.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The injury was more severe at the time than the given percentage of 10%.  The injury has worsened with no improvement since separation.  Other treatment has included surgeries and secondary medical issues.”

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 LBP is addressed below.  The lumbar degenerative disc disease will be considered as well, as it is part of this disability.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions 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.

The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate 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, operating under a different set of laws.  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.

RATING COMPARISON:

Service IPEB – Dated 20031210	VA - (1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP	5295	10%	DDD with Herniated Nucleus Pulposus (HNP) of L5-S1	5243*	10%	20040107	
Lumbar DDD	Category II					
Other x0 (Not in Scope)	Other x5	20040107	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20040720 (most proximate to date of separation)
*VARD dated 20050827 increased 5243 to 20% effective 20040216 (one day post-separation).

ANALYSIS SUMMARY: The low back pain (LBP) and lumbar degenerative disc disease (DDD), adjudicated by the PEB as a Category II condition, will be discussed together.

LBP Condition:  The CI developed LBP after giving birth in September 2001.  She was initially seen 2 weeks later at a medical clinic with complaints of right-sided LBP and muscle spasm that’s exacerbated by lifting and sitting.  The physical examination findings were tenderness to palpation (TTP) and muscle spasms in the right paraspinal tissues at approximately L3-5 levels.  The examiner diagnosed LBP due to muscle tightness and prescribed a non-steroidal anti-inflammatory drug (NSAID) as well as a sedative.  The CI was followed by the pain management team whom made adjustments to the medication regimen; nonetheless, the CI continued to experience LBP with bilateral leg pain.  The CI was evaluated by physical therapy (PT), along with a physical examination which noted findings of discomfort in the extremities, pain at the sacroiliac joint (SIJ) (right worse than left), and TTP at L5 but, strength was normal.  The CI was seen by her primary care provider who documented that the CI fell, landing on her back and head.  The examiner prescribed oral NSAID and administered an NSAID injection in the clinic.  The chiropractor documentation captures the CI’s complaints of constant LBP and the physical exam findings were of TTP over both SIJ’s and pain during ROM.  The orthopedist examination documents constant LBP, that’s exacerbated by physical activity and the physical exam findings were of pain with lumbar spine extension as well as right SIJ pain; yet motor and sensory exams were normal.  The examiner diagnosed mechanical LBP, ordered X-rays in concurrence with a bone scan; the bone scan was completed on 6 September 2002 and the results were normal.  The CI received her first epidural steroid injection on 15 September 2003.  The lumbar spine magnetic resonance imaging (MRI) revealed L2-3 desiccation of the nucleus pulposus, L3-4, L4-5 mild bulging of the annulus, L5-S1 moderate desiccation of the nucleus pulposus.  Also the MRI exhibited a large central and right para-central extrusion of the nucleus pulposus distorting the thecal sac with impingement of the nerve root on the right.  The neurosurgeon examination noted increased LBP with right-sided predominance and paraesthesias, radiculopathy and back spasm.  The neurosurgeon’s physical exam findings were pinpoint tenderness over the right SIJ, with motor and sensory exam intact.  The pain management examiner documented that the CI had progressive worsening of the LBP, with occasional radiation of pain to her lower extremities, radiating into her feet (left greater than the right), along with associated numbness and tingling.  The range-of-motion (ROM) findings were the following: flexion greater than 90 degrees, extension 40 degrees with significant reproduction of LBP (right greater than left); facet loading was significant for increased right-sided LBP with circumferential paravertebral tenderness or paraspinal muscular tenderness.  The examiner diagnosed LBP probable facet arthropathy and radiculopathy, bilateral lower extremities (right greater than left).  On 23 January 2003, the CI was placed on LIMDU status for her LBP (the CI had two 8 months courses of LIMDU) Pain management examiner noted palpable nodules in the right hip and administered an injection of lidocaine in May 2003 and December 2003.  The MEB narrative summary (NARSUM) examination (approximately 5 months prior to separation) documented that the CI complained of LBP that was predominantly right sided and radiated to her anterior thighs.  The MEB examiner diagnosed lumbar DDD and LBP and noted the following restrictions: no lifting over 10 pounds, no physical training, no physical fitness test and no strenuous activity.  The MEB examiner goes on to further recommend that the CI attend PT and that she completes a course of treatment through the pain clinic.  He opined that if the PT and pain management treatments failed, she might be a candidate for a discogram to evaluate for a possible lumbar fusion.  The MEB NARSUM physical examination findings are summarized in the chart below.  The commander’s statement documented that the CI continued to perform her assigned duties, taking into consideration her limitations; however, her flexibility in the corrections community was very limited and adversely impacted her MOS performance.

The VA Compensation and Pension (C&P) exam (approximately 2 months prior to separation) documented a constant crunching, squeezing, sharp oppressive aching LBP with radiation up to the shoulders, down into her legs and hips with a pain graded at 7 or 8 out of 10.  Depending on the severity of symptoms, the CI required bed rest and had missed a total of 6 days from work secondary to the LBP.  The CI has functional limitation due to her inability to perform heavy lifting, prolonged walking, prolong standing and frequent bending, stooping or crouching.  Also an X-ray of the lumbar spine completed the same day of the C&P examination, showed slight narrowing in the L5-S1 disc space.

The ROM in evidence, as well as the additional documentation in the CI’s service treatment records of other ratable criteria, which the Board weighed in arriving at its rating recommendation, is summarized in the chart below.

Thoracolumbar ROM(Degrees)	MEB 5 Mos. Pre Sep	VA C&P 1.5 Mos. Pre-Sep	
Flexion (90 Normal)	No ROM’s	60	
Combined (240)		240	
Comment	Tender to palpation (TTP) lower lumbar region; Normal strength, sensation & reflexes	Pos. painful motion & antalgic gait; TTP midline & paraspinal area; No muscle spasm; Pos. Deluca criteria	
§4.71a Rating	10%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the LBP condition as 5295 (lumbosacral strain) and rated at 10%, with characteristic of pain on motion.  The PEB adjudicated this case on 8 December 2003, using the interim spine rules to rate the back condition.  However, the new spine rules were in effect at that time.  The VA coded the DDD with herniated nucleus pulposus (HNP) of L5-S1 condition as 5243 (intervertebral disc syndrome) and rated at 10%.  The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease” was in effect at the time of separation.  The Board considered the C&P examination the most probative due to its proximity to separation, it was the most complete exam and it was the only exam that documented ROM measurements for all planes of the thoracolumbar spine.  The documented 60 degrees of forward flexion is consistent with a 20% rating IAW the General Rating Formula for Diseases and Injuries of the Spine.  Although technically outside our 12-month scope of evidence consideration, the subsequent VARD 18 months after separation increased the CI’s rating to 20% effective the day after separation based on documented ROM measurements.  The MRI evidence does support the use of VASRD code 5243 for rating; however, the evidence documents that the CI’s incapacitating episodes would meet the 10% rating criteria.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no functional implications.  The CI did not have a motor impairment.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  The PEB coded the lumbar DDD as a Category II condition (“conditions that contribute to the unfit condition”).  This condition was considered in the above discussion.  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 LBP 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 pain condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the lumbar DDD condition, the Board unanimously recommends no change from the PEB determination as not separately unfitting.  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 her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Low Back Pain	5243	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131008, 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.