RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00287
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150129
SEPARATION DATE:  20060731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Rifleman) medically separated for a back condition.  The condition did not improve adequately to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “displacement of lumbar intervertebral disc without myelopathy” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB found the “L4-L5 and L5-S1 central disk herniation” unfitting, and rated it 10%.  The CI made no appeals and was medically separated.

CI’s CONTENTION:  The CI has made a lengthy contention which was reviewed by the Board and considered in its recommendations.

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 Veterans Affairs Schedule for Rating Disabilities (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:

Navy IPEB – dated 20060605	VA – based on Service Treatment Record (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L4-L5 and L5-S1 Central Disk Herniation	5237	10%	Herniated Disc, L5-S1 With Left Lower Extremity Dysesthesias	5299-5243 	10%	STR	
Other x 0  (Not in Scope)	Other x 2 (Deferred)	STR	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20070108 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Low Back Pain (LBP).  This CI has had a long history of LBP.  In March 2005, he injured his back while doing leg presses.  He was treated with medication and physical therapy.  Magnetic resonance imaging showed L5-S1 left-sided paracentral disc herniation, without significant neural impingement.  In January 2006, he was evaluated by neurosurgery and it was determined that he was not a surgical candidate.  The examiner opined that surgery would destroy the integrity of the disc and recommended conservative treatment measures.  However, in spite of treatment, the CI’s back pain persisted and an MEB was initiated.  The MEB narrative summary (NARSUM) was dated 16 May 2006.  At that exam, the CI reported that he was unable to run, squat, bend, lift, or stand for lengthy periods.  He also reported numbness and tingling in the left lower extremity, all the way down to the foot.  He denied any weakness.  Physical examination (PE) of the back revealed some tenderness to palpation, and slightly decreased range-of-motion (ROM).  He could side bend 15 degrees to either side, and forward flex to approximately the level of the kneecap.  There was no pain with extension.  Neurological exam of the lower extremities was nonfocal.  Gait was described as “unsteady.”

Eleven days later, on 27 May 2006, the CI had a PE that was recorded on DD Form 2808.  That PE was cursory, and poorly documented.  On ROM testing, forward flexion was 20 degrees, extension 5 degrees, and side bending 30 degrees.  As noted above, the PEB found him unfit, and he was medically separated from service on 31 July 2006.  On 10 June 2010, 4 years later, he had a VA Compensation and Pension (C&P) exam.  At that exam, posture and gait were normal.  PE of the back revealed a positive straight leg raise (slightly limited).  Neurological exam was normal.  The diagnosis of the back condition was: Lumbar herniated nucleus pulposus.  Thoracolumbar ROM was measured, and is summarized below.

Thoracolumbar ROM
(Degrees)	MEB ~2 mos. Pre-Sep
(20060527)	VA C&P ~47 mos. Post-Sep
(20100610)	
Flexion (90 Normal)	20	30	
Combined (240)	(n/a)	165	
Comment	Poorly documented exam	Too long after DOS	
					          
The Board directed attention to its rating recommendation based on the above evidence.  The Board determined that the June 2010 C&P exam was too long after the DOS, and therefore had diminished probative value.  The 27 May 2006 exam recorded on DD Form 2808 was not a thorough PE, and was poorly documented.  The Board members agreed that the PE with greatest probative value was performed on 16 May 2006, and was recorded in the NARSUM.  At that exam, the CI’s gait was “unsteady” and lumbar ROM was “slightly decreased.”  With forward flexion, he could flex his lumbar spine to approximately the level of his kneecap.  The Board surmised this to mean that his fingertips touched the kneecap.  Based on this data, the Board determined that, at DOS, it was more likely than not that thoracolumbar forward flexion was greater than 30 degrees, but not greater than 60 degrees.  IAW VASRD §4.71a, a disability rating of 20% is warranted for thoracolumbar forward flexion 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 had neurological symptoms.  However, there was no performance-based evidence that the neurological condition impacted his military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  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 unfitting back condition, characterized as “L4-L5 and L5-S1 central disc herniations.”

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 back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5237, IAW VASRD §4.71a.  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	
L4-L5 and L5-S1 central disc herniations	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140105, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 26 May 15 XXXXXXXXXXXXXXX
	    (c) PDBR ltr dtd 7 May 15 XXXXXXXXXXXXXXX
	    (d) PDBR ltr dtd 7 May 15 XXXXXXXXXXXXXXX

1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (d).

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

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

     b. XXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 40 percent disability rating 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 completed.

			XXXXXXXXXXXXXXX
			Assistant General Counsel
                                       		(Manpower & Reserve Affairs)