RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00803
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20081129

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Electro-Optical Ordnance Repairer, medically separated for “chronic exercise, related low back pain,” with a disability rating of 10%.

CI CONTENTION:  “Injury impairs daily activities, pain has increased.”  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 based upon a 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:  

SERVICE PEB – 20050331	VARD – 20051212 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5242	10%	Chronic Low Back Pain, 
with Idiopathic Scoliosis	5242	10%	20080509	
Idiopathic Scoliosis	Category III					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDTIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back pain began during Boot Camp in September 2006, after ruck marching with a heavy pack.  At the Physical Medicine visit on 9 May 2007, the CI reported LBP and thoracic back pain.  Physical examination (PE) showed full range of motion (ROM) and normal movement of all extremities.  Straight leg raise (SLR) was negative.  There was normal strength, reflexes, and gait; and no weakness in the lower extremities.  In June 2007, magnetic resonance imaging (MRI) showed moderate S-shaped thoracolumbar scoliosis, and mild spondyloarthropathy at L4-L5 and L5-S1.  There was no surgical indication.  
At the Orthopedic visit on 19 March 2008, the CI reported constant pain in his back, mostly in the lower back.  PE showed overall ROM was “near normal.”  He could reach his lower legs on forward flexion, and he could walk on toes and heels.  The examiner wrote: “He can walk without increased pain.  He can do sit-ups and push-ups for a limited time.  He is able to swim, cycle, and do light weight resistance training.” 

Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “scoliosis [and kyphoscoliosis], idiopathic” and “lumbago” for PEB adjudication.

On 9 May 2008 (29 weeks before separation), the CI had a VA Compensation and Pension (C&P) examination. He reported constant lower and upper back pain.  He also reported that the back pain would sometimes radiate down his legs to his heels.  He denied any incapacitating episodes during the previous year.  PE showed scoliosis of the thoracic spine, with a well-coordinated gait, and no spasms.  Thoracolumbar ROM measurements showed flexion of 75 degrees (normal 90) and combined ROM of 215 degrees (normal 240), with pain on flexion and extension.  Repetitive movements of the spine could not be performed adequately due to pain with motion.

At the MEB NARSUM examination on 23 May 2008 (27 weeks prior to separation), the CI reported constant pain in his back that did not radiate to his legs.  PE showed a normal gait, with a mild right thoracic scoliotic curve.  Neurological examination was normal, and testing for radiculopathy was negative.  Thoracolumbar range of motion (ROM) measurements showed flexion of 70 degrees (normal 90) and combined ROM of 230 degrees, with painful motion noted.  Measurement were taken with an inclinometer.   

The Board directed attention to its rating recommendation based on the evidence.  The PEB rated the low back pain condition 10%, coded 5242 (degenerative arthritis of the spine) citing motion limited by pain.  The VA also rated the back pain condition 10%, coded 5242, citing limitation of forward flexion and limitation of combined thoracolumbar motion.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees), and for combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the NARSUM and VA examinations.. There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on that basis.  

The Board also considered if an additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  The Board therefore concluded that additional disability rating was not justified on that basis.  After due deliberation, and considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the low back pain condition.

Contended PEB Conditions:  Idiopathic Scoliosis.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting. As noted above, this condition was found by the PEB to be Category III (not separately unfitting, and not contributing to the unfitting condition).  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  The Board determined that it was indeed Category III (not separately unfitting, and not contributing to the unfitting condition).  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended idiopathic scoliosis, the Board unanimously recommends no change in the PEB determination as Category III.  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 20140926, 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 31 May 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 USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC