RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00644
BRANCH OF SERVICE:  MARINE CORPS 	BOARD DATE:  20151027
SEPARATION DATE:  20070630 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (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 eventually referred for a Medical Evaluation Board (MEB).  The diagnosis “lumbago” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB (IPEB) adjudicated “low back pain” as unfitting, rated 10%.  The CI requested the case be reconsidered based on additional evidence, but the PEB affirmed the original findings and rating.  The CI then appealed to the Formal PEB (FPEB), which increased the rating to 20%. 

CI CONTENTION:  His condition continues to 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 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:  

FPEB – Dated 20070329	VA* - (4 Mo. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5239	20%	Degenerative Disk Disease at L5-S1…	5242	40%	20070226	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1	
RATING:  20%	COMBINED RATING: 40%	
*Derived from VA Rating Decision (VARD) dated 20080327 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Lumbar Spine Condition.  The earliest entry for back complaints in the service treatment record (STR) is a note from October 2005 and related a 14-month history of pain (gradual onset, no trauma).  This was treated conservatively and 2 months later the CI was deployed to Iraq.  Two months into the deployment he was medically evacuated for atraumatic back pain (March 2006, 15 months pre-separation).   Upon re-deployment he continued to complain of back pain with radiation (and intermittent numbness) to both lower extremities.  Magnetic resonance imaging (MRI) revealed spondylolisthesis (slippage of one vertebra over the other) at L5/S1 with degenerative changes and disc disease (“mild annular bulge” at L3/4 and L4/5 without nerve root impingement).  A neurosurgical consultant (corroborated by a second opinion) opined that surgery was not indicated; further conservative measures (including nerve root injections) failed to provide adequate relief; and, an MEB was initiated.  There are multiple STR entries documenting grossly normal range-of-motion (ROM) prior to and after deployment; and, the only contrary entry is one which documents non-specifically decreased extension with pain.  There are multiple STR entries documenting normal bilateral lower extremity neurological examinations (5/5 strength) with none to the contrary.  There is no STR documentation of incapacitating episodes.

The narrative summary (NARSUM) exam was conducted 23 August 2006 (10 months pre-separation) and documented “lower back pain with radiation into his lower extremities with occasional numbness to both of his feet” without elaborating pain characteristics or specific functional limitations.  The NARSUM physical examination recorded left paraspinal tenderness (no comment on spasm) and normal neurological findings (motor, sensory, and reflexes).  The NARSUM exam-measured ROM was 40 degrees flexion (normal 90) and combined ROM of 140 degrees (normal 240).  

A VA Compensation and Pension (C&P) examination was conducted 26 February 2007 (4 months pre-separation) and documented pain (same radiation and sensory symptoms) rated 7-8/10 and “limited in performing frequent bending, stooping, crouching, heavy lifting and carrying, and performing prolonged high-impact activities.”  The VA physical examination recorded a normal gait and spinal contour, tenderness “without muscle spasm,” and normal neurologic findings (5/5 strength).  The VA measured ROM was flexion to 30 degrees and combined ROM of 115 degrees.  On 20 March 2007 (3 months pre-separation and 9 days prior to the FPEB) there were additional ROM measurements by physical therapy (PT) which recorded flexion to 30 degrees and combined ROM of 95 degrees (no documentation of spasm).  There is no history in any of the Service or VA evidence of any intervening injury or clinical exacerbation of the spine condition.

The Board directed attention to its rating recommendation based on the above evidence.  The FPEB’s 20% rating under code 5239 (spondylolisthesis) was compliant with VASRD §4.71a criteria for the findings and ROM evidence from the STR and NARSUM; although, the 30 degrees flexion from the later PT evidence is the §4.71 threshold for a 40% rating.  The VA’s 40% rating under 5242 (degenerative arthritis of the spine) referenced the C&P flexion measurement.  There is a disparity between the NARSUM and later C&P and PT ROM findings with obvious implications for the Board's rating recommendation.  The Board deliberated the probative value of these conflicting evaluations, with review of the overall evidence for corroboration.  Weighing significantly in this case is the ample evidence for a stable condition over an extended period without significant ROM limitation, and the lack of clinical explanation for the development of fairly severe ROM limitation approaching separation and after the appealed IPEB.   The NARSUM evidence itself is at odds with that from the overall clinical course of over 2 years duration.  It must be further noted that the documented absence of objective findings (abnormal gait or spinal contour, palpable spasm) are suggestive of a significant subjective contribution to the ROM limitation, vulnerable to psychological or secondary gain probative value detractors.  Although acknowledging that the C&P and subsequent PT ROM measurements were in conflict with the NARSUM measurements, members nevertheless concluded that the NARSUM ROM measurements were best correlated with the totality of the evidence and clinical reasoning in this case.  The Board considered whether additional rating could be recommended under a peripheral nerve code(s) for the radicular symptoms, but members agreed that neither the requisite functional link to fitness nor the presence of a VASRD ratable deficit were supported by the evidence.  There was no documentation of incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar spine 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 lumbar spine 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.

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 20140123, w/atchs
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 Dec 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:

- XXXXXXXXXXXXXXXXXXXXX former USMC
- XXXXXXXXXXXXXXXXXXXXX former USMC
- XXXXXXXXXXXXXXXXXXXXX former USMC  
- XXXXXXXXXXXXXXXXXXXXX former USMC
- XXXXXXXXXXXXXXXXXXXXX former USMC
- XXXXXXXXXXXXXXXXXXXXX former USMC 

						  XXXXXXXXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)