RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01119
BRANCH OF SERVICE:  MARINE CORPS	SEPARATION DATE:  20040215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Landing Support Specialist medically separated for “back pain status post lumbar fusion” with a disability rating of 10%. 

CI CONTENTION:  “Because the VA has rated me as totally unemployable.”  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 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:  

SERVICE PEB - 20031218	VARD - 20040406	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post L5-S1 Transforaminal Interbody Fusion…	5295	10%	Status Post L1-S1 Transforaminal Lumbar Interbody Fusion and Coccyx Fracture	5237	20%	20031021	
			Lumbar Scar, Post Surgery	7804	10%	20031021	
L1-S1 Degenerative Disc Disease	Cat II					
Pulmonary Embolus…	Not Unfitting / 
Cat III	Status Post Pulmonary Embolism	6817	0%	20031021	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Status Post L5-S1 Transforaminal Interbody Fusion.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent lumbosacral fusion back in May 2003 for degenerative disc diseases with radiculopathy.  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 a Medical Evaluation Board (MEB).  The MEB forwarded degenerative disk disease, status post transforaminal interbody fusion with posterior instrumentation and posterior iliac autogenous bone grafting for PEB adjudication.  At an emergency department visit 8 months before separation the examiner noted mild tenderness to palpation over the lower coccyx region and a normal gait. The MEB NARSUM examination on 28 July 2003 (7 months prior to separation) noted complaints of chronic non-radiating lower back pain which required some narcotic medication.  Physical examination showed 5/5 lower extremity strength bilaterally with normal light touch and reflexes.  The examiner noted that the CI had an “excellent” surgical result residual back pain.  At a primary care visit dated 10 September 2003, the CI reported “on and off back pain” with walking and sleep disturbance secondary to back pain.  The physical examination demonstrated no lower back tenderness to palpation, painful flexion and extension, and limited lateral bending and rotation.  

At the VA Compensation and Pension (C&P) examination on 21 October 2003, performed 4 months before separation, the CI reported aching, sticking, cramping, and sharp back pain.  The pain was rated 6/10 and aggravated by physical activity.  Physical examination showed lumbar tenderness to palpation, muscle spasm, decreased flexion to 30 degrees, extension, right and left lateral flexion to 5 degrees, and right rotation to 20 degrees.  There was pain in all planes of motion.  Radicular tests were negative.  The gait was normal. The VA examination performed 26 February 2004, 2 months after separation was not on file, but was referenced in the VA rating decision dated 6 April 2004.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the lower back pain condition 10% coded 5295 (lumbosacral strain) under the VASRD spine rules in effect until 25 September 2003.  The VA rated the lower back pain condition 20% coded 5237 (lumbar sacral strain), based on the VA C&P examination 2 months after separation (26 February 2004), citing painful motion of the lumbar spine with limited motion in forward flexion, a combined range of motion of 95, tenderness over lumbar spine and coccyx region along with a bilateral paralumbar muscle spasm.  The noted the limitation of flexion to 30 degrees reported on the VA examination 4 months before separation; however the preponderance of in service and post separation VA measurements evidenced greater than 30 degrees forward flexion.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  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 residual lower back pain condition coded 5237.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that pulmonary embolus sustained as a post-operative complication was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The pulmonary embolus condition was not judged to fail retention standards.   A pulmonary NARSUM addendum dated 17 November 2003, 4 months before separation noted reports of that the CI completed 6 months of anticoagulation therapy, radiographic studies demonstrated full resolution of prior abnormalities, and that the CI was asymptomatic.  All were reviewed and considered by the Board.   There was no performance based evidence from the record that the pulmonary embolus condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the pulmonary embolus contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the lower back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended pulmonary embolus condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Lower Back Pain Status Post Transformational Interbody fusion with Posterior Iliac Autogenous Bone Grafting	5237	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140128, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 12 Apr 16 ICO XXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 12 Apr 16 ICO XXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 12 Apr 16 ICO XXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 12 Apr 16 ICO XXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 9 Apr 16 ICO XXXXXXXXXXXXXXX 
	(g) PDBR ltr dtd 12 Apr 16 ICO XXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 1 Apr 16 ICO XXXXXXXXXXXXXXX 

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (h) are approved.

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

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

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

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

     d. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge. 

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

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

     g. XXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 10%) effect 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 complete.