RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01935	
BRANCH OF SERVICE:  mARINE CORPS 	BOARD DATE:  20150507
SEPARATION DATE:  20050930	 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Motor Vehicle Operator) medically separated for a lumbar spine condition which could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was placed on limited duty [LIMDU] and referred for a Medical Evaluation Board (MEB).  The conditions “displacement of lumbar intervertebral disc without myelopathy,” “degeneration of lumbar or lumbosacral intervertebral disc,” and “lumbago” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted.  The PEB adjudicated “lumbago” as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  Two associated disc diagnoses (lumbar disc degeneration at L4-5 and bulging disc L4-5) were determined to be Category II (contributing to the unfitting condition).  The CI made no appeals and was medically separated. 

CI CONTENTION:  “Still major back issues which is affecting my job, can’t sleep, constant pain, affecting my marriage, stressed all the time, low sex drive, anxiety about losing my job...”  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 20050808	VA (2 Wks. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbago	5299-5237	0%	Herniated Disc L4-5 with Disc Degeneration L4-5	5242-5243	20%	20050913	
Degenerative Disc,  L4-5	Category II					
Bulging Disc, L4-5 	Category II					
Other x 0  (Not in Scope)	Other x 1 	
Combined:  0%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20060325 (most proximate to date of separation [DOS]).    
ANALYSIS SUMMARY:    

Lumbar Spine and Category II.  There is an entry in the service treatment record (STR) from November 2004 (10 months prior to separation) during deployment to Iraq which documented a strain injury (heavy lifting) to the back.  Low back pain (with some bilateral radiation) persisted, but the CI finished the deployment on limited duty.  Magnetic resonance imaging after re-deployment identified a degenerative disc (L4/5) with mild protrusion (posterior, abutting thecal sac, no foraminal [nerve root] compromise), and surgery was not recommended.  A trial of chiropractic treatment and conservative measures was unsuccessful at restoring full MOS capabilities.  There are some STR entries which noted various degrees of radicular pain, with occasional mention of sensory symptoms, but none relating subjective motor weakness; and, all neurological exams were normal.   One entry (4 months pre-separation) documented thoracolumbar flexion to 50 degrees (normal 90), and others noted non-specifically decreased range-of-motion (ROM) and painful motion.  There is STR documentation of normal gait and spinal contour, and no entries to the contrary.  There is no STR documentation of physician directed bed rest, work release, or other evidence for periods of incapacitation; although, the commander’s non-medical assessment (NMA) documented medical absence from work averaging “20 to 25 hours a week.”

The narrative summary (NARSUM) was conducted 12 July 2005 (2 months prior to separation), and documented “moderate” pain which was improving “but with recurrence of symptoms with increased activity.”  The examiner noted pain radiation “to the right buttock and posterior thighs ... no leg radiation” and “no leg weakness ... paresthesias or numbness.”  The NARSUM physical exam recorded spinal tenderness (no mention of gait or contour) and normal neurological findings (motor and reflexes, no sensory exam).  The NARSUM measured ROM was flexion to 75 degrees and combined ROM of 190 degrees (normal 240) without specifying painful motion.

A VA Compensation and Pension (C&P) examination was conducted 13 September 2005 (2 weeks prior to separation), and documented constant pain rated 7/10 which limited “running, lifting, [and] leaning over for a period of time.”  Pain radiation to the upper left buttock and “tingling in legs ... more in left” was noted.  The VA examiner specified, “He states his condition does not cause serious incapacitation.”  It was noted, however, “The condition resulted in 5 times lost from work per week.”  The VA physical exam recorded a normal gait, tenderness, and the absence of spasm; making note of some motor weakness (4/5) with left knee extension and foot dorsiflexion (remaining groups normal), but characterized as “minimal ... does not seem to affect his function today.”  The VA measured ROM was flexion to 80 degrees and combined 230 degrees, annotating painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  It is first clarified that neither of the above Category II conditions are diagnoses clinically separate from the unfitting lumbar condition which can be separately coded and rated without violation of VASRD §4.14 (avoidance of pyramiding). They are thus subsumed in the Board’s recommendation for the primary condition.  The PEB’s 0% rating analogous to 5237 (lumbar strain) is not consistent with the VASRD §4.71a general spine formula which confers a 10% rating for “combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees”; nor, does it reflect consideration of VARD §4.59 (painful motion) to achieve the minimal compensable rating of 10%, which members agreed was supported by the evidence.  The VA’s 20% rating under 5243 (intervertebral disc syndrome) invoked the §4.71a formula for rating based on incapacitating episodes (for 20%: “having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months”); but, the rating decision did not specify the evidence on which this determination was based.  The PEB and VA ROM evidence did not support a 10% rating under the general spine criteria, and neither abnormal gait nor abnormal spinal contour are in evidence to achieve a higher rating.  
Members next deliberated whether rating under the formula for incapacitating episodes as applied by the VA was justified in this case.  In that regard, it is noted that §4.71a provides the definition “an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.”  Although the NMA and the CI’s report to the VA C&P examiner indicate significant work loss from the condition, there is no evidence which would support a conclusion that this was prompted by physician directed bed rest.  The non-surgical nature of the condition without acute disc features is such that it would not be routinely managed by bed rest, but rather by activity as tolerated and duty limitations.  Members therefore agreed that, under the provisions of §4.71a, a recommendation for a higher rating based on incapacitating episodes was not sufficiently supported by evidence.  

The Board finally considered whether additional rating could be recommended under a peripheral nerve code for the associated radiculopathy still present at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The intermittent sensory component in this case has no functional implications.  The only indication of motor weakness is the C&P examiner’s entry, which the examiner himself discounted, and which was not corroborated elsewhere in the record.  There is thus no evidence of significant functional impairment from the associated radiculopathy, and the Board cannot support a recommendation for additional disability rating on this basis.

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 lumbar spine condition, the Board unanimously recommends a disability rating of 10%, coded 5242, IAW VASRD §4.71a.  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 his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Degenerative Disc Disease, Lumbar Spine	5242	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131021, 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 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX   	 
      (c) PDBR ltr dtd 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 18 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
      (l) PDBR ltr dtd 18 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (l) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     d. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge. 

     e. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

     g. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     h. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     i. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     j. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     k. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) 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.