RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00478
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20070515

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Infantry Mortarman) medically separated for a lower back condition.  The condition 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).  “Fusion of spine (vertebra), congenital” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded two other conditions detailed in the chart below for PEB adjudication.  The Informal PEB adjudicated “status post T2 to L2 lumbar fusion” as unfitting rated 20%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be Category II, contributing to unfitting condition.  The CI appealed to the Formal PEB (FPEB), which affirmed the PEB findings and rating.  

CI CONTENTION:  His condition continues to worsen and negatively impact his daily activities.  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 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 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 FPEB – Dated 20070308	VA - 1 Month Pre-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post T2 to L2 Lumbar Fusion	5241	20%	Scoliosis with Residual of Spinal Fusion T2 through L2	Not Service Connected	20070421
	
Lumbago	Category II				
Scoliosis	Category II				
Other MEB/PEB conditions x 1 (Not In Scope)	Other x 4	
COMBINED RATING:  20%	COMBINED RATING:  0%	
Derived from VA Rating Decision (VARD) dated 20070517 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Back Condition.  According to the service treatment records (STR) and the narrative summary (NARSUM), the CI entered active duty with asymptomatic mild scoliosis as noted on his military enlistment physical in 1999.  The CI joined the infantry and developed mid-back pain aggravated by marches in 2002 and was treated by a chiropractor.  At a civilian orthopedic evaluation on 1 February 2005, the CI reported mid-back pain without radiation to the upper or lower extremities (LE).  The diagnosis was progressive idiopathic scoliosis and surgery was recommended to prevent complications.  The CI underwent surgery on 16 January 2006 for spinal fusion from T2 to L2 without complications.  Serial orthopedic evaluations noted maintenance of good surgical correction on X-rays and the exams noted normal strength, sensation, and reflexes of all extremities.  At a military neurosurgical evaluation on 24 October 2006, the CI reported decreased muscle spasms without radiation of pain, weakness, numbness, or bowel or bladder symptoms and a full neurological exam was normal.  The neurosurgeon noted that the diminished pulmonary function observed before surgery improved after surgery.  One year after surgery, a PEB was initiated because the permanent physical limitations following spinal fusion precluded further military duty.

At the MEB exam on 18 December 2006, 5 months before separation, the CI reported he was unable to assume a prone position or do abdominal crunches during physical training.  The MEB physical exam noted back range-of-motion (ROM) of flexion 35 degrees (normal 90) and combined ROM of 125 degrees (normal 240) and cited the neurosurgical exam mentioned above.  The recommended permanent physical limitations included avoidance of running and contact sports as well as lifting overhead.

At the VA Compensation and Pension (C&P) exam 21 April 2007, a month before separation, the CI reported back pain and stiffness and occasional sciatic pain down the right LE during exercise, without any other neurological symptoms.  He did not use a cane or crutch and denied any incapacitating episodes in the past 12 months.  The exam noted a normal gait.  There was a long healed, non-tender scar down the center back, with residual scoliosis noted.  There was no spinal tenderness or muscle spasm.  Thoracolumbar flexion measured with a goniometer was 60 degrees and combined ROM was 135 degrees, with painful motion noted.  There was no additional loss of ROM with repetition.  Strength and reflexes were normal throughout and straight leg raise testing was negative bilaterally.  Sensation was normal in the upper and lower extremities, except “mildly deceased” sensation on the top, lateral aspect of the feet.  The VA examiner noted that the CI had restricted thoracic-lumbar (TL) ROM due to the scoliosis condition following surgical fusion, but did not have any limitations of vision or opening his mouth, or problems with breathing or swallowing.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5241 (spinal fusion).  The VA initially did not service-connect the scoliosis condition.  A subsequent VA Rating Decision dated 5 September 2005 service connected the back condition and rated it 20%, coded 5241 effective the day after the date of separation.  The Board agreed that the evidence supports a 20% rating according to the VASRD General Rating Formula for the spine in effect at the time of separation for TL flexion “greater than 30 degrees but not greater than 60 degrees” or for TL combined ROM of “not greater than 120 degrees.”  The Board reviewed to see if the next higher rating of 40% was supported, but there was no evidence of TL flexion “30 degrees or less”.  The Board also noted that although he CI underwent surgical fusion from the upper thoracic spine to the second lumbar vertebra, motion was preserved at the lower lumbar levels and this did not support rating for ankylosis of the “entire thoracolumbar spine” for higher rating.  The VA examiner also noted that the CI did not have any symptoms such as difficulty seeing, breathing, or eating due to the spinal condition to warrant rating the condition analogous to ankylosis of the spine.  
The Board next considered if a higher evaluation than 20% was achieved using code 5243 (Intervertebral disc syndrome) and rating based on incapacitating episodes, defined by the VASRD as bed rest prescribed by a physician and treatment by a physician.  There was no documentation in record of VASARD defined incapacitating episodes.  The Board noted that the PEB adjudicated the back condition as a category I unfitting condition of “Status post T2 to L2 lumbar fusion” along with 2 related category II conditions of “lumbago” (back pain) and “scoliosis”.  The Board noted that in this case they are all the same disability and multiple ratings are prohibited by VASRD §4.14 (Avoidance of pyramiding).  Thus, the Board determined that the evidence supports a 20% rating for the back condition at separation and no higher.  After due deliberation in consideration of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

The Board also considered if there was evidence in the record to support recommending peripheral nerve impairment due to the back condition as separately unfitting and eligible for additional disability rating.  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 CI did not report any neurological symptoms prior to separation and no neurologic abnormalities were noted on the neurosurgical exam or any orthopedic exams in record.  At the pre-separation C&P exam the CI reported occasional right sciatica and the exam noted “mildly decreased” sensation on the feet, with normal strength and reflexes.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a and there was no evidence that any sensory deficit was associated with functional impairment prior to separation in this case.  Therefore, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

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 condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration. 

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 20140112, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

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 21 Jan 16

      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:

- XXXXXXXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXXX, former USMC   
- XXXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXXXXXXX, former USMC  
- XXXXXXXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXXXXXXX, former USMC 

				XXXXXXXXXXXXXXXXXXXX
	     			Assistant General Counsel
				(Manpower & Reserve Affairs)