RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01338
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20080929	

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Fixed-wing Air Power Plant Mechanic, medically separated  for “lumbago,” with a disability rating of 10%.  

CI CONTENTION:  The CI contended for his unfitting back condition as well as a number of conditions not identified in the disability evaluation system.  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 - 20080709	VARD - 20090122	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbago	5237	10%	Back Condition	5003-5242	10%	20080903	
Disk Herniation at L5-S1, Far Lateral	Cat II					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Lumbago. According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in February 2006 at which time he had insidious onset of primarily non-radiating back pain described as 90% back pain and 10% leg pain radiating down his left leg and ankle.  Radiographic study [MRI) in August 2007, 13 months prior to separation, showed decreased disk height at L5-S1 and a focal disk bulge extending into the far lateral recess on the right which contacted the L5 nerve root.  There was no surgical indication.  
At an orthopedic visit in October 2007, 11 months prior to separation, the CI reported unremitting back pain with left radicular symptoms to his foot and right radicular symptoms with weakness.  Physical examination showed tenderness on palpation, positive straight leg-raising on the left (for radicular symptoms), with no lordosis (abnormal spinal contour).  There was normal gait and stance and no abnormal reflexes.  

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 Medical Evaluation Board (MEB).  The MEB forwarded “displacement of lumbar intervertebral disc without myelopathy” for PEB adjudication.  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated June 2008, 3 months prior to separation, the CI reported lower back pain with numbness and tingling.  The examiner stated the diagnosis was chronic lumbar pain with intermittent radiculopathy.  

The Report of Medical Board, written in June 2008, indicated the CI’s pain was discogenic in nature that hurt with prolonged sitting, standing, bending, lifting, or twisting affecting his ability to perform his Military Occupational Specialty (MOS).  Physical examination noted negative straight leg-raising, normal gait and stance, normal neurologic exam, and 5/5 motor strength.  Range-of-motion (ROM) testing was accomplished with a goniometer and is summarized below.  The examiner did not mention repetition or presence or absence of pain on motion.  

At the VA Compensation and Pension (C&P) examination in September 2009, performed approximately 1 month before separation, the CI reported he was unable to tie his shoes, run, and could not sit, stand, or walk for prolonged periods of time.  He stated that he had 5-6 episodes of incapacitation in the past year where he was bedridden and needed assistance to report for emergency evaluation.  The CI was being treated for a right ankle fracture from July 2008.  Physical examination showed normal posture.  Gait was normal except for a short leg walking cast on the right.  Single left leg balance was good.  There was no spine tenderness or muscle spasm, and no pain, fatigue, lack of endurance or loss of coordination with repetitive motion.  ROM was reported as “active flexion to 70 degrees; further flexion to 90 degrees is possible but with considerable pain.”  The Board noted that more remote VA records indicated that the CI underwent back surgery in March 2012, over 3 years after separation.  

The PEB assigned a 10% rating under the 5237 code (lumbosacral strain).  The VA also assigned a 10% rating using an analogous 5003-5242 code (degenerative arthritis and degenerative arthritis of the spine) based on the VA C&P examination 3 weeks before separation, citing service treatment records, a diagnosis of degenerative disk disease and ROM criteria.  

The Board considered the NARSUM examination flexion of “greater than 50 degrees” was not IAW VASRD §4.46 (accurate measurement), did not address DeLuca and repetition, and may have indicated a forward flexion of greater than 30 degrees but not greater than 60 degrees.  The VA examination was closest to separation and documented active forward flexion greater than 60 degrees but did not address ROM in all planes.  

The Board majority adjudged that the VA examination had the highest probative value for rating at separation.  The Board agreed that a 10% rating, but no higher, was justified for painful motion or ROM limitations reported on the NARSUM and VA examinations proximate to separation.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  

There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of any higher rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain, and there were symptoms of radiating pain and complaints of numbness documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and no fixed sensory deficit.  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 from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  

The Navy PEB listed the disk herniation at L5-S1, far lateral condition as a related diagnosis (Category II) contributing to the disability in this case.  The Board noted that the disk herniation was the underlying diagnosis causing the lumbago and was not a separate condition which could be separately rated IAW §4.14 (avoidance of pyramiding).  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication.  The single voter for dissent recommended modification of the rating, but did not elect to submit a minority opinion.  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 20140304, 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