RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01873
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150324
SEPARATION DATE:  20041031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Personnel/Administrative Chief) medically separated for low back pain (LBP).  The low back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was placed on light duty and referred for a Medical Evaluation Board (MEB).  The “lower back pain mechanical” and “central small herniated nucleus pulposus both at L5-S1 and L4-L5,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “lower back pain mechanical (Category I)” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The IPEB also adjudicated “central small herniated nucleus pulposus both at L5-S1 and L4-L5” as a Category II condition.  The CI appealed to the Formal PEB (FPEB), which combined the IPEB Category I and II conditions into a single Category I unfitting condition, rated 20%, with likely application of the VASRD.  The FPEB also included “epididymal cyst” as a Category III condition.  The CI did not further appeal and was medically separated.

CI CONTENTION:  “The rating l received was only 20% for Lumbar Spine strain L4-L5 and L5 S-1, Herniated Nucleus Pulpous, the only choice they had was 20 or 40 and they went with the lower, when my Lumbar goes out, I am unable to work or do anything except lay in bed with lots of pain medication, it hurts just to breath.  They also found Tinnitus 10% and Cervical Spine strain for 10%, which is related towards my back.  This should have been considered with my PEB and my rating should have been 30% or greater.  After my PEB was completed I went to get my finial physical during the finial physicals hearing portion I failed due to my left year, I was tested almost 10 times by specialist and found I had a hearing lose in my left ear which impacts my ability to hear certain sounds, the Naval Doctors at the time said if I bad not already received a PEB they would recommend it for my hearing lose, they decided not to at the time since I was already being separated do to my back and the commands were stressing redeployment and needed to replace and could not afford to wait for another PEB to be done.  During my consults with Neurosurgeons in preparation for the PEB I was told that I have spinal degeneration due to my injury's and my back will only get worse over time if I do not change jobs hence why I was recommended for the PEB.  Doing daily living activities is a choir and if I move the wrong way I will fall down in extreme pain and I its not correctable.”

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:

FPEB – Dated 20040608	VA* - (~3 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lower Back Pain Mechanical	5237	20%	Lumbar Spine Strain with L4-L5 and L5-S1 herniated Nucleus Pulposus	5237	40	20040804	
Central Small Herniated Nucleus Pulposus Both at L5-S1 and L4-L5							
Other x 1 (Not In Scope)	Other x 18	
RATING:  20%	RATING:  70%	

*Derived from VA Rating Decision (VARD) dated 20041215 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The PEB documentation from 16 April 2004 was not in evidence before the Board and could not be located after appropriate inquiries.  Further attempts to obtain the relevant documentation would cause undue delay in processing this case.  After review of the available evidence, Board members agreed that the missing evidence would not materially alter the Board’s recommendations.

Low Back Condition.  Treatment records documented that the CI initially presented with LBP after a twisting injury on 2 December 2001.  He reported difficulty walking and pain radiation down his legs.  A magnetic resonance imaging (MRI) study performed on 5 December 2001 revealed degenerative disc disease at the lumbar 4-5 level with mild bulging of the discs and canal narrowing at the L4 level.  An orthopedic evaluation dated 12 December 2001 noted that the CI was treated with a self-administered back rehabilitation exercise program and anti-inflammatory medications.  The examiner opined that the CI could continue his military service and perform his duties as tolerated.  There was also a recommendation for physical therapy if the pain recurred.  On 14 December 2001, the CI presented to for a follow-up visit after being seen in the emergency department.  He reported severe LBP when moving his legs which was not relieved with Valium, Vicodin, and Motrin.  The physical examination revealed right leg spasms, positive straight leg raise, an abnormal gait, and tenderness of the lumbar area.  He was treated with 3 days of quarters.  The records were silent for low back pain until 2003; however, a letter from the Cleveland Military Entrance Processing Station documented that from December 2001 until July 2002 the CI “missed over two months of work due to various doctors’ appointments and being on SIQ due to his back pain.”  

The CI was deployed to Iraq from 31 January-20 May 2003.  A Post-Deployment Health Assessment dated 15 May 2003 documented that the CI had back pain during deployment.  On 16 October 2003, the CI presented with shooting LBP and paresthesias of the quadriceps with activities.  The CI was treated with light duty and anti-inflammatory medication.  A MRI performed on 17 November 2003 showed no significant changes compared to the prior study.  A neurosurgery consultation dated 20 November 2003 demonstrated 60 degrees of lumbar flexion (normal 0-90 degrees), 15 degrees of extension (normal 0-30 degrees), bilateral lateral flexion of 15 degrees, moderate tenderness of the lower back without muscle spasm, negative straight leg raise (SLR), and normal reflexes.  At the MEB examination dated 25 February 2004, 8 months prior to separation, the CI reported pain in his back and “tingling in legs if kneeling for more than a few seconds.”  The MEB physical examination noted decreased (documented as “two arrows down”) range-of-motion (ROM) and pain at L4-L5.  The narrative summary (NARSUM), dated 15 March 2004, approximately 7 months prior to separation, stated that the CI’s LBP began in December 2001.  The LBP had improved prior to deployment, but returned despite light duty and medications.  His pain had persisted despite maximal therapy and affected his ability to perform his duties.  The neurosurgeon opined that the CI was not a surgical candidate.  The NARSUM referenced the neurosurgery visit from 20 November 2003 and quoted the same examination: 60 degrees of lumbar flexion (normal 0-90 degrees), 15 degrees of extension (normal 0-30 degrees), bilateral lateral flexion of 15 degrees, moderate tenderness of the lower back without muscle spasm, negative SLR, and normal reflexes.

At the VA Compensation and Pension (C&P) examination, dated 1 August 2004 (3 months prior to separation), the CI reported limited ROM; twice daily sharp, 10/10 pain; lasting 4 hours; and occasional radiation down his right leg.  The CI could function without medication, but sometimes needed Tylenol #3 and complete rest.  The CI stated that he could perform most normal activities, but that his back pain increased with twisting, pushing, and bending.  Examination documented normal gait and posture; the ability to tie shoes and pick up paper without difficulty, and absence of tenderness, muscle spasm, and radiation of pain on movement.  Flexion of the thoracolumbar spine was 30 degrees, bilateral lateral flexion was 30 degrees with pain occurring at 15 degrees, bilateral rotation was 30 degrees with pain occurring at 15 degrees, and the CI refused to extend his back.  Motor and sensory function and lower extremity reflexes were normal.  The examiner stated that there was no further ROM limitation by fatigue, weakness, lack of endurance, or incoordination and no evidence of intervertebral disc disease.

At a visit to the emergency department dated 25 August 2004 (2 months prior to separation), the CI reported LBP for 3 days.  He had acute onset of severe sharp pain while getting dressed that caused him to collapse to the floor; paresthesias down both legs posteriorly with movement; inability to perform the activities of daily living; and ambulation with a cane since the incident began.  On examination, he was ambulating with a guarded posture and cane; appeared uncomfortable while lying on his side; was tender to palpation in the entire lumbar area; with  The thoracolumbar flexion was 5 degrees and no extension secondary to pain; and he was unable to lift either leg more than 10 degrees during the SLR due to pain.  At a neurosurgery visit dated 1 October 2004 (a month prior to separation), the CI stated constant pain in the back with occasional radiation into both lower extremities when his symptoms were increased.  The examiner documented a normal neurologic examination (motor, sensory, and reflex), lumbar flexion of 50 degrees, extension of 15 degrees, normal lateral flexion bilaterally, with moderate lumbar tenderness and without muscle spasm.  The examiner recommended treatment options to include the possibility of future lumbar fusion.

The Board directed attention to its rating recommendation based on the above evidence.  The FPEB adjudicated the lower back mechanical pain as unfitting and the central small herniated nucleus pulpous condition as Category II (contributing to the unfitting condition).  The PEB rated the mechanical LBP and lumbosacral herniated discs at 20%, coded 5237 (lumbosacral strain).  The VA rated the back condition at 40% based on forward flexion of the thoracolumbar spine to 30 degrees or less.  The Board first considered if the Category II herniated disc condition was reasonably justified as separately unfitting.  The Board noted the lower back pain due to mechanical and disc dysfunction was the predominant disabling factor.  Board members agreed that mechanical LBP and herniated lumbar disc pain could not be rated separately IAW VASRD §4.14 (avoidance of pyramiding) and that the PEB adjudication of the herniated disc condition as contributing to the unfitting condition was appropriate.

The Board then considered whether the evidence supported a higher than 20% rating for the LBP condition.  The Board noted the variation in thoracolumbar flexion most proximate to separation (5 degrees during an acute exacerbation; 30-60 degrees with chronic pain).  Board members recognized that LBP attributable to herniation of discs is characterized by intermittent periods of exacerbations and remissions.  The Board debated whether the visits for acute pain and chronic pain that documented 30 degrees of flexion or less were more indicative of acute self-limited exacerbations rather than his baseline disability.  There was no documentation of muscle spasm or abnormal spinal contour during either examination.  There was documentation that the CI could return to baseline ROM measurements greater than 30 degrees but not greater than 60 degrees of forward flexion and that the commander’s statement did not document any impairment of his work duties while the CI requested COAD.  There was no evidence of unfavorable ankylosis of the thoracolumbar spine for a higher than 40% rating.  The Board also considered rating the LBP condition under the general rating formula for rating intervertebral disc disease, but determined that the one episode of incapacitation would not result in a higher than 20% rating.  There was no evidence of a radiculopathy that rose to the level of separately unfitting for additional disability rating.  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 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 lower back pain mechanical condition and IAW VASRD §4.71a, by a majority vote, the Board recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  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 20131004, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION:

Dissent with the majority vote is based on the totality of the evidence in the service treatment record (STR).  The IPEB rated the CI’s unfitting LBP condition at 10%; and the FPEB rated under the same code (5237, lumbosacral strain) at 20% almost 5 months prior to separation.  The VA rated the CI’s back using the same code as the PEB and rated it as 40% based on examinations obtained 3 months prior to separation, which were not available to the FPEB for their adjudication.

On the MEB DD Form 2807-1 dated 2 February 2004, the CI reported “severe herniated discs” with tingling in his legs when kneeling.  The MEB examination (dated 19 April 2004; 6 months prior to separation) documented his complaints of back pain and a ROM that was greatly reduced (documented as “two arrows down” without goniometric measurements).

The NARSUM was written 15 March 2004 (7 months prior to separation) and referenced an examination performed by a neurosurgeon dated 20 November 2003 (11 months prior to separation) which documented 60 degrees of forward thoracolumbar flexion (normal 90 degrees) and decreased extension (15 degrees; normal is 30 degrees).  At that time the neurosurgeon recommended against surgery.  The MEB forwarded prior ROM measurements because there were no measurements obtained during the MEB examination dated 19 April 2004 (8 months prior to separation).  The IPEB recommended a 10% rating based on the ROM measurement provided by the MEB; the CI disagreed and requested a Formal PEB.  The IPEB provided the FPEB with the rationale behind their determination based on this information and cited the ROM as mentioned, the MRI findings, and that “surgical intervention [was] not recommended.”  The CI provided some non-medical and medical documentation (from December 2001-March 2002) for the FPEB hearing on 8 June 2004; they cited “benefit of the doubt” and gave a 20% rating.

Upon review of the evidence, the LBP condition worsened prior to separation.  There were two relevant entries in the STR that were of probative value in this case and were not available for the FPEB decision.  During a VA C&P examination performed on 4 August 2004 (3 months prior to separation), the CI reported limited ROM, twice daily sharp pain, lasting 4 hours with occasional radiation down his right leg.  He stated the need for complete rest and narcotics during severe pain exacerbations.  The examiner documented painful motion, thoracolumbar flexion of 30 degrees, (sufficient for a 40% disability rating), and refusal to extend his back (a sign of segmental instability).  On 25 August 2004, the CI had a visit to the emergency room for an acute flare up of his LBP, during which he was clearly incapacitated: walking “guarded, with a cane,” in visible discomfort, was tender to palpation of the entire lumbar area and unable to flex more than 5 degrees or extend at all secondary to pain.  He was treated with morphine, and released to home for follow-up with his physician.  At a neurosurgery visit 7 days later (a month prior to separation), the CI reported “constant pain in the lower back with occasional radiation into both lower extremities [with flares].”  The neurosurgeon documented some improvement in flexion (50 degrees forward flexion), diagnosed “discogenic” (mechanical) LBP, referred him to the pain clinic, and proceeded to discuss a variety of invasive treatment options, including lumbar fusion.

The majority based its recommendation on lack of documentation of muscle spasm during the final 3 months prior to separation, inconsistent ROM exams leading up to separation (due to the waxing and waning nature of the disability), and assessing that the CI’s disability picture at the time of separation more nearly approximated the criteria required for the rating assigned by the FPEB.  The lack of muscle spasms could be reasonably explained by the CI’s use of the prescribed muscle relaxant medications during flare ups.  The majority determined that the worsened ROM documented after the PEB proceedings reflected an acute pain episode and was not indicative of his baseline functioning most proximal to separation.
The minority voter noted that the NARSUM evidence did not accurately reflect the CI’s condition at the time of separation, rather reflecting his condition almost a year prior to separation.  The LBP as a result of discogenic disease is characterized by intermittent exacerbations that can result in the drastic reductions of ROM seen during flare-ups with subsequent resumption of or progressive decrement in functioning.  While the emergency room ROM measurements were during an acute exacerbation, the VA C&P examination was not, and could reasonably reflect progression in decrement of functioning.  The neurosurgeon noted improvement in ROM relative to the exacerbation ROM, but also noted moderate tenderness and recommendation for a trial of steroid injections through pain clinic prior to surgical intervention.  This recommendation is indicative of escalation of care to a more invasive level to address the worsening discogenic pain and its functional impact.  The objective findings documented in the three months prior to separation clearly document worsening of his condition and the minority voter determined that the majority of measurements most proximate to separation most closely approximated the 40% disability criteria.

The minority voter acknowledges that the PEB made an appropriate decision with the information available at the time of the proceedings; however, based on the totality of the evidence including the ROMs more proximate to separation and evidence of worsening of the unfitting condition, IAW VASRD 4.71a criteria, and VASRD §4.3 (reasonable doubt) standard, the minority voter recommends a 40% disability rating; coded 5237 (lumbosacral strain).

The Secretary is respectfully requested to consider the minority recommendation that there be a recharacterization of the CI’s service disability determination as noted above.

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 20 Nov 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 USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN