RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01294
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20080331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Helicopter Mechanic, medically separated for “low back pain,” with a disability rating of 20%.

CI CONTENTION:  The CI contends that other Veterans received higher ratings for similar conditions and that his condition continues to worsen.  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 - 20080115	VARD - 20080522	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Intervertebral Disk Degeneration	5237	20%	L5-S1 Disk Extrusion	5299-5239	10%	20080208	
Lumbago	Cat II	Nerve Compression Right Leg	8620	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Low Back Condition.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in March 2006.  There was no associated injury or trauma, but the CI did indicate he slipped and caught himself in the shower prior to falling, and experienced instant back pain and numbness in his right leg.  Radiographic studies intervertebral disc disease with compression of the S1 nerve root. There was no surgical indication.  The CI was treated conservatively with physical therapy, traction, medication, and a trial of epidural steroid injections (ESI; injection of steroids in the spinal canal to reduce inflammation).Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of his military specialty, so he was referred for an MEB.

The MEB NARSUM examination on 9 November 2007 (5 months prior to separation) noted lack of improvement in his condition despite treatment.  Physical examination showed lower back spinous and paraspinal muscle tenderness to palpation, a patch of numbness on the rear of his right thigh, and absent knee and ankle reflexes symmetric bilaterally.  The examiner noted normal muscle strength and down going Babinski (a test of the central nervous system).  Thoracolumbar range-of motion (ROM) was documented as flexion “greater than 50 degrees” (normal 90); extension greater than 45 degrees (normal 30); left and right lateral flexion and rotation each greater than 30 degrees bilaterally (normal 30 degrees); and an approximate combined ROM   greater than 200 degrees.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated 14 December 2007 (4 months prior to separation); the CI reported a herniated disc at L5-S1 and indicated he had constant numbness at the back of his right leg.  Physical examination showed slight decrease in strength of right knee flexion (5-/5) and plantar flexion of the right ankle (5-/5).  There was decreased sensation along the S1 nerve root sensory distribution from the distal calf to the knee and increased sensitivity (hyperesthesia) at the mid-calf.  Test for irritation of the sciatic nerve (the long nerve running down the back and into each foot) was negative.  At the VA Compensation and Pension (C&P) examination on 8 February 2008, 2 months before separation, the CI reported the ability to walk without discomfort, but recurrent back pain with any high-impact activity or walking more than 2 miles.  He reported pain radiation down his right leg. The CI denied any incapacitating episodes in the year prior to this C&P exam.  Physical examination showed a normal gait and posture, no paraspinal lumbar muscle spasm, and negative tests for sciatic nerve irritation. There was decreased sensation to pinprick at the right big toe, absent reflexes at the knees or the right ankle, and decreased reflex at the left ankle.  ROM were reported as forward flexion to 70 degrees (normal 90), extension to 30 degrees (normal 30), with lateral flexion and rotation to 30 degrees bilaterally (30 normal), for a combined ROM of 220 degrees.  The CI did not complain of pain with active motion, but did indicate pain with forward flexion. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under the 5237 code (lumbosacral strain), citing limitation of ROM.  The VA assigned a 10% rating using a 5299-5239 code (analogous to spondylolisthesis or segmental instability) based on the VA C&P examination 2 months before separation, citing limitation of forward flexion and absence of abnormal gait due to spasm or guarding. The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), as reported on the NARSUM examination.  There was no documentation of incapacitating episodes which would provide for a higher rating under that formula.  The Board also considered whether additional disability rating might be justified for peripheral nerve impairment due to radiculopathy.  The CI had radicular pain evidenced in examinations, but it was specifically discounted in the NARSUM examination 5 months prior to separation, and strength was reported as normal.  The MEB examination the next month reported very slight degradation of right knee and foot (plantar flexion) strength.  The VA examination 2 months prior to separation reported normal gait.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain and numbness (and even mild decrease of strength) from the nerve involvement, they did not interfere with the performance of his military duties, which is the critical decision regarding whether any radicular condition can be considered for additional rating.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concludes that additional disability rating was not justified on this basis.  
BOARD FINDINGS:  In the matter of the lumbar intervertebral disk degeneration 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.  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, 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 12 Apr 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 USN
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USMC