RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01492
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20061031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3 (Aircraft Maintenance Administration Specialist) medically separated by the Informal Physical Evaluation Board for “degenerative disc disease, L5-S1 S/P laminectomy and discectomy” with a disability rating of 10%.  

CI CONTENTION:  The applicant contends that he received a high rating from VA.  The applicant’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 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 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 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 - 20060922	VARD - 20070330	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Disc Disease, L5-S1…	5237	10%	Degenerative Disc Disease, Status Post L5-S1 Discectomy…	5237	0%	STR	
RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Low Back Degenerative Disc Disease Condition. According to service treatment records (STR) and the MEB narrative summary (NARSUM), the CI underwent back surgery with discectomy and laminectomy in January 2006 for an L5-S1 herniated disc associated with a lower extremity radiculopathy.  Post-operative notes indicated that radicular symptoms resolved.  

At a physical therapy follow-up on 10 April 2006 (3 months after surgery and 7 months prior to separation) the CI reported pain with running, doing crunches or standing for long periods. Examination showed ambulation with no assistive devices, and a well-healed surgical scar on his back.  There was no tenderness and lower extremity strength was normal.  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 a Medical Evaluation Board (MEB).

At the MEB examination (recorded on DD Form 2807 and 2808) dated 7 June 2006, 5 months prior to separation, the CI reported lower back pain which was more dominant on the left side and constant numbness in both legs since surgery; his feet constantly felt asleep or heavy.  Physical exam showed a well-healed surgical scar, and “full” flexion, extension, and lateral rotation.  There was no tenderness.  Reflexes and lower extremity strength were normal, and maneuvers for nerve root irritation were negative.
 
The MEB NARSUM exam on 29 June 2006 (4 months prior to separation) noted complaints of back pain that had improved but not fully resolved since surgery.  The CI reported bilateral numbness and tingling in his feet after sitting for an extensive time.  Physical exam showed a well-healed surgical scar, normal gait, no tenderness, no spasm, and “full” flexion, extension and rotation.  Reflexes and strength were normal, and sensation was intact.  Maneuvers for nerve root irritation were negative.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5237 code (lumbosacral strain), citing use of the VASRD.  The VA assigned a 0% rating using the same code, apparently based on review of the STR.  Board members deliberated if a rating higher than the PEB’s 10% was warranted.  There was no evidence of flexion greater than 30 degrees but not greater than 60 degrees, or combined ROM not greater than 120 degrees.  There was likewise no evidence of muscle spasm or guarding severe enough to result in abnormal gait or spinal contour.  There was no documentation of incapacitating episodes which would provide for a higher rating under that formula.  The Board thus concluded that the next higher 20% rating was not justified.  It was also noted that the PEB listed lumbago as a related diagnosis (Category II) contributing to the disability in this case.  However, the degenerative disc disease was the underlying diagnosis causing the lumbago, which was not a condition that could be separately rated, IAW §4.14 (avoidance of pyramiding).  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reportedly had radiculopathy due to the herniated disc, but this was noted to resolve after surgery.  Although feet numbness and tingling were reported at the NARSUM, examinations indicated normal strength, reflexes and sensation.  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).”  There is no evidence in this case that neurologic deficits from radiculopathy 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. 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 degenerative disc disease condition.

BOARD FINDINGS: In the matter of the degenerative disc disease 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.  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 20140327, 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 2 Feb 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
	     		Assistant General Counsel
			(Manpower & Reserve Affairs)