RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX		CASE:  PD-2014-01279
BRANCH OF SERVICE:  MARINE CORPS		BOARD DATE:  20150122
SEPARATION DATE:  20081230

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Light Armored Vehicle Crewman) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The first Physical Evaluation Board (PEB) in April 2007 resulted in a return to duty finding.  Sixteen months later, the back condition, characterized as “lumbago” and “other postsurgical status,” was again forwarded to the PEB IAW SECNAVINST 1850.4E.  The Informal PEB (IPEB) adjudicated “lumbago” as unfitting, rated 20%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  “Status post L5-6 left-sided laminotomy and discectomy” was determined to be a related Category II diagnosis (contributing to the unfitting condition).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Because the back injury happened during combat and you need your back to walk.  Sometimes hard to get out of bed.”

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 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 20081001	VA - (2 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbago	5243	20%	Lumbar Degenerative Disc Disease, s/p Discectomy and Laminectomy	5242	20%	20081027	
S/P L5-6 Left-Sided Laminotomy and Discectomy	Cat II					
Other x 0	Other x 10	
Rating:  20%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20090213
ANALYSIS SUMMARY:  

Lumbago and Related L5 Left-Sided Laminotomy and Discectomy Condition.  The CI had a 16-year history of low back pain (LBP) with several injurious incidents over that time period.  In mid-2006, he was medically evacuated from a deployed location due to an exacerbation of his chronic LBP.  He had several magnetic resonance imaging studies which revealed a large herniated disc at the L5-S1 level.  He underwent non-operative treatment to include two epidural steroid injections and was found “Fit to continue Service” by a PEB in April 2007.  Over the ensuing 12 months his back pain continued which resulted in surgical intervention (left-sided L5-L6 laminotomy and discectomy with lateral recess decompression) in April 2008.  After rehabilitation he was referred into the Disability Evaluation System (DES).  The narrative summary prepared 5 months prior to separation noted complete resolution of his radicular left leg pain but his back pain was not helped by the surgery.  He complained of 6/10 non-radiating back pain that was worse with prolonged sitting, standing, bending, lifting or twisting.  The pertinent physical exam findings are summarized in the chart below.  

At the VA Compensation and Pension (C&P) exam performed 2 months prior to separation, the CI reported difficulty performing any strenuous physical activities that required bending, lifting, running, performing other high-impact activities, and participating in sporting activities.  He additionally had difficulty with sexual intercourse due to pain.  The VA examiner documented, “His surgery was done six months ago and he had approximately 60 days of incapacitation during the past 12 months due to the back condition.”  The pertinent physical exam findings are summarized in the following chart.

The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM (Degrees)	MEB ~4 Mos. Pre-Sep	VA C&P ~2 Mos. Pre-Sep	
Flexion (90 Normal)	“Full ROM >50”	70	
Combined (240)	200	170	
Comment	Normal gait; Pos. tenderness to palpation; Neg. straight leg raise (SLR); Weakness dorsiflexion left foot)	Normal gait; Pos. painful motion & tenderness to palpation; No spasm; Neg. SLR; No Deluca criteria	
§4.71a Rating	20% 	10% (VA 20%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB applied VASRD code 5243 (intervertebral disc syndrome) and rated it 20% (forward flexion greater than 30 degrees but not greater than 60 degrees), apparently based on 50 degrees.  The VA applied code 5242 (degenerative arthritis of the spine) and also rated it 20% based on “…limited flexion to 50 degrees….”  The Board reviewed the actual verbiage contained within the C&P exam that formed the basis of the VA’s adjudication which read, “range of motion of the thoracolumbar spine: active flexion is limited at 70°/90°, with pain at 50°;….”  The Board members agree that the actual ROM was 70 degrees with pain beginning at 50 degrees and would have been more appropriately rated at 10% under the General Rating Formula for Diseases and Injuries of the Spine.  That formula also considers symptoms “With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.”  Code 5243 can also be rated based on incapacitating episodes; however, the evidence did not contain any documented episodes of incapacitation that met the VASRD definition, “For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.”  The ROM based 10% rating would be the Board’s recommendation; however, IAW DoDI 6040.44 the Board may not recommend a lower combined rating than that conferred by PEB.  
Additionally, the Board considered the potential rating implications of the CI’s radicular symptoms; however, 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 pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case had no functional implications and was essentially resolved after the CI’s surgical procedure.  There was no evidence of a significant motor impairment.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  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 for the lumbago 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 lumbago 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 20140309, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION 
Ref:	(a) DoDI 6040.44
(b) CORB ltr dtd 16 Jun 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:

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

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel (Manpower & Reserve Affairs)