RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01833
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20091230

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an E3, Rifleman, medically separated for “low back pain,” with a disability rating of 10%.  

CI CONTENTION:  The CIs conditions continue 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 based upon a 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 - 20091030	VARD - 20100612	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	20%	Lower Back Strain	5237	10%	20100304	
HNP L5/S1	Category II	No VA Placement	20100304	
Adjustment Disorder with Mixed Anxiety and
Depression	Category III	Neuropsychological Condition Including Depression,
Adjustment Disorder and Anxiety	NSC	20100319	
			
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS: 10%	

ANALYSIS SUMMARY:  

Low Back Pain (including HNP [herniated disc] L5-S1).  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) condition associated with pain extending into his right thigh began in September 2008 during a tactical road march.  Diagnostic imaging revealed a herniated disc at spinal level L5-S1 with nerve root displacement.  Despite non-surgical treatment to include epidural steroid injections, his painful symptoms remained.  At the MEB examination dated August 2009, 5 months prior to separation, the CI reported no change in his low back and right thigh symptoms.  His physical examination (PE) revealed a normal gait.  There was tenderness about the lumbosacral spine.  Thoracolumbar range of motion (ROM) was significantly decreased.  There was no comment with regards to the presence of painful motion.  At the VA Compensation and Pension (C&P) examination dated March 2010, performed 2 months after separation, the CI reported LBP radiating into right lower extremity.  Additionally, the C&P history noted ‘Yes’ to questions of instability or give way, lack of endurance, and numbness or tingling without comment to body location.  He reported having mild flare-ups “2-3 times every 2 weeks” lasting 10 minutes.  His symptoms were aggravated with walking, jogging, jumping, bending at knees, and climbing stairs; pain was relieved with rest, medication, and bicycle.  His spinal focused PE was completely normal excepting minimal decreased thoracolumbar rotation motion.  

The Board directed its attention to its rating recommendation based on the above evidence.  Both the PEB and VA utilized VASRD code 5237 (lumbosacral strain) and assigned a 20% and 10% rating, respectively.  Although the CI’s gait remained normal and consistent in both pre- and post-separation examinations, it was his ROM findings that were drastically different.  Board members determined that the ROM difference in the above examinations would not equate to a VASRD impairment rating higher than the PEB’s 20%.  Additionally, the Board agreed that the reported mild altered sensation in the right lower extremity as noted in the VA examination coupled with a normal gait and normal neurologic findings did not constitute a separate ratable neuropathy for disability, since no functional impairment linked to fitness was in evidence.  Additionally, there was no sufficient documentation for VASRD defined incapacitating episodes which would achieve a higher rating.  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 of the LBP condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that adjustment disorder with mixed anxiety and depression was not unfitting.  Board members noted that the primary diagnosis of adjustment disorder is not a physical disability and is not ratable IAW DoDI 1332.38. 

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended primary condition of adjustment disorder, the Board unanimously recommends no change from the PEB determination as a Category III condition.  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 20140423, with attachments
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 31 May 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:

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

								 XXXXXXXXXXXXXXXXXXXX
	     				  			Assistant General Counsel
						  		(Manpower & Reserve Affairs)