RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01357
BRANCH OF SERVICE:  MARINE CORPS	SEPARATION DATE:  20080215  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Ground Communications Technician, medically separated for “discogenic back pain,” with a disability rating of 0%.  

CI CONTENTION:  His condition continues to worsen and negatively impact his daily activities.  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 - 20070904	VARD - 20080528	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Discogenic Back Pain	5241	0%	Lumbar Strain Status Post L4-5 Anterior Fixation with
Decompression Discectomy	5237	20%	20080428	
Degenerative Disc Disease (DDD) L4-L5	Cat II					
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Discogenic Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI initially experienced low back pain (LBP) in October 2005 after working on his car.  Magnetic Resonance Imaging demonstrated DDD at L4/L5 with no nerve compression.  A later discogram (diagnostic imaging) also demonstrated DDD at L4/L5, with no annular ligament (surrounds disc) tears.  Evaluation by orthopedics concluded that the L4-5 disk abnormality was the likely cause of his pain, and in April 2007 he underwent a discectomy and fusion of his L4-L5 vertebrae.  Primary care and orthopedic visits following surgery indicated the CI continued with localized LBP.  There was no mention of muscle spasm at any exam and a normal gait was noted at a primary care visit on 18 June 2007, which noted back range of motion (ROM) of flexion 20 degrees (normal 90 degrees) and normal extension.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for an MEB.  

At the MEB examination dated 30 July 2007, 7 months prior to separation, the CI reported constant, persistent LBP.  The examiner noted no deformities or tenderness to palpation (TTP).  Thoracolumbar (TL) ROM was limited as recorded in the chart and straight leg raise testing (SLR-to elicit nerve tension signs) was negative.  The physical exam at the MEB examination (recorded on DD Form 2807 and 2808) dated August 2007, also 7 months prior to separation, showed back ROM of flexion 30 degrees and “decreased” lateral flexion bilaterally.  There was no TTP and SLR was negative.  

At the VA Compensation and Pension (C&P) examination on 28 April 2008, performed 2 months after separation, the CI reported continued pain, but no radiation to the lower extremities.  On examination, the CI had TL spine tenderness with muscle spasms, however gait and spinal posture were normal, and ROM was limited as recorded in the chart.  The ROM examinations 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 ~7 Mo. Pre-Sep	
MEB ~7 Mo. Pre-Sep
	VA C&P ~2 Mo. Post-Sep	
Flexion (90 Normal)	90	30	40 (38)	
Combined (240)	Not less than 160	-	130	
Comments	Not Addressed		Painful motion, Spasm
Nl gait and spinal contour
Repetitive Movement Declined	
§4.71a Rating	10%	40%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under code 5241 (spinal fusion).  The PEB also adjudicated DDD at L4-L5 as a Category II condition (a condition that contributes to the primary unfitting condition but is not separately ratable).   The VA assigned a 20% rating using code 5237 (lumbosacral strain) based on the VA C&P examination 2 months after separation, citing limitation of forward flexion.  

The Board noted the disparity between the back ROM noted at the MEB DD Form 2808, MEB NARSUM, and C&P exams and deliberated how to reconcile the differences.  The MEB NARSUM exam and the MEB DD Form 2808 exam were performed a day apart, with the former documenting near normal ROM and the latter reflecting poor ROM.  The MEB NARSUM and C&P exams documented variable ROM as well, but were the both more completely documented exams.  The Board placed greater probative value on these two exams, but also considered (to a lesser degree) the findings at the MEB DD Form 2808 in arriving at a rating recommendation at the time of separation.  The total evidence in record supports that the CI had back pain which frequently caused limited, but variable, back ROM, including normal ROM at the MEB NARSUM exam.  After deliberations, member consensus was that with consideration of functional loss (VASRD 4.40, 4.45), the disability picture due to the back condition more nearly approximated the criteria for the 20% rating, than either the 10% or 40% ratings at separation.  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 recommended a disability rating of 20% for the low back condition, coded 5241.  The PEB also listed DDD L4-L5 as a related category 2 condition.  The impairment from the DDD is subsumed under the overall rating for the low back condition (§4.14 avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  

BOARD FINDINGS:  In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Discogenic Back Pain	5241	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140317, 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 29 Apr 16 ICO XXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 26 Jan 16 ICO XXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 22 Jan 16 ICO XXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 29 Apr 16 ICO XXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 12 Apr 16 ICO XXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 29 Apr 16 ICO XXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 25 Jan 16 ICO XXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 15 Apr 16 ICO XXXXXXXXXXXXXXX

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

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

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

     b. XXXXXXXXXXXXXXX, former USN: 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 10 percent disability rating (increased from 0 percent) effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.
     
     e. XXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10%) effect date of discharge.
 
     f. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge.

     g. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.
     h. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective 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.