RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX		CASE:  PD-2014-00993
BRANCH OF SERVICE:  MARINE CORPS	SEPARATION DATE:  20090730

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 low 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).  “Lumbago” and “other and unspecified disc disorder of lumbar region” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “lumbosacral spondylosis status post L4-5 and L5-S1 discectomies” as unfitting, rated 20% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION: His low back condition required surgery after separation and he developed depression.  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 condition 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 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 20090424	VA* - ~3 Months Pre-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Spondylosis S/P Discectomies L4, L5 and S1 
	5237	20%	Status Post Discectomies and Laminectomies L4, L5 and S1	5242-5243	10%
	20090428	
			Scar, Lower Back S/P Discectomies	7084	0%
	20090428	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5	
RATING:  20%	COMBINED RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20090804 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY: 

Lumbosacral Spondylosis S/P Discectomies L4, L5 and S1.According to VA service treatment records (STR) and the MEB narrative summary (NARSUM), the CI underwent lumbar discectomy, laminectomy, and nerve root decompression in April 2008 for herniated disc and entrapment of the L4 nerve root.  Despite treatment, the CI’s back condition could not be adequately rehabilitated.  At the time of the NARSUM, dated 23 February 2009 (8 months pre-separation) the CI reported daily back pain.  The NARSUM physical examination demonstrated a normal gait, limited range-of-motion, and 5/5 lower extremity strength.  At the VA Compensation and Pension (C&P) General examination dated 28 April 2009 (3 months pre-separation), the CI reported daily constant lower back pain, stiffness, and numbness.  He reported that the pain radiated down the left leg to the foot.  He reported 45 days of incapacitation in 2008 and 72 hours in 2009.  The physical examination demonstrated a normal gait, muscle spasms, and full but painful thoracolumbar ROM. There were decreased knee and ankle reflexes on left side and decreased sensation of the left lateral leg, front leg, medial leg, lateral, dorsal, and lateral foot most likely involving sciatic nerve on the left side.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating, coded 5237 (lumbosacral strain). The VA assigned a 10% rating for the lower back pain, coded 5242-5243 (degenerative arthritis of the spine-intervertebral disc syndrome) and a 10% rating for sciatic radiculopathy, coded 8520 (sciatic nerve, mild incomplete paralysis).  The Board agreed that a 10% rating, but no higher, was justified for the presence muscle spasm without associated gait or spinal contour abnormality and painful motion.  There was no post-surgical evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  Although the CI experienced radiating pain, there was no objective evidence of radiculopathy or functional impairment with a direct impact on fitness.  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 is no evidence in this case that there was radiculopathy with associated functional impairments separately functionally impairing.  The Board therefore determined that additional disability rating was not justified on this basis.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 20% for the lower back pain condition was appropriately recommended in this case. 

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 lumbosacral spondylosis status post L4-5 and L5-S1 discectomies 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 20150804, 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 4 Feb 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:

- XXXXXXXXXXXXXXX, former USMC
-XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC   
- XXXXXXXXXXXXXXX, former USMC 
-XXXXXXXXXXXXXXX, former USMC

						 				XXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)