RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01890
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 active duty E5, Motor Transport Operator, medically separated for “mechanical low back pain” with a disability rating of 10%. 

CI CONTENTION:  The applicant asserts that his back condition continues to worsen impacting on his daily activities and he thinks he should have been rated higher by the PEB for this condition.  Additionally, he contends he should have been rated by the Service for his tinnitus and left knee conditions.  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 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 - 20090904	VARD - 20100603	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mechanical Low Back Pain	5237	10%	Degenerative Disc Disease of the Lumbosacral Spine	5242	10%	20100126	
Bulging Disc L5/S1	Cat II					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Mechanical Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s mechanical low back pain (LBP) condition began in January 2004 after a fall and was exacerbated by a motor vehicle accident in May 2004.  The pain became more severe and the CI developed right lower extremity (LE) symptoms.  The CI continued to perform his duties despite the back symptoms and was deployed.  He sought care for his back during deployment and underwent additional evaluation and treatment following his return.  Magnetic resonance imaging studies September 2008 showed degenerative disc disease and arthritis with no evidence of acute disc herniation or spinal stenosis.  In April 2009, X-rays showed normal SI joints.  There was no surgical indication; however, the CI was treated with multiple types of injections by a pain specialist including a lumbar epidural steroid injection, and radiofrequency nerve ablation of lumbar nerve branches.  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 an MEB.  The MEB forwarded “degeneration of lumbar or lumbosacral intervertebral disc” for PEB adjudication.

The MEB NARSUM examination on 18 May 2009, performed 8 months prior to separation, noted complaints of persistent LBP.  Physical exam showed tenderness to palpitation of the L5-S1 paraspinal area, right greater than left.  Back range-of-motion (ROM) was full, with painful motion.  Gait and LE strength, sensation, and reflexes were normal.  Straight leg testing (SLR) for radiculopathy was negative.  

At the VA Compensation and Pension (C&P) examination on 26 January 2010, performed 1 month after separation, the CI reported 5-7/10 LBP that occasionally radiated into his right LE and daily flare-ups, which lasted 30 minutes, provoked by standing more than 20 minutes or walking more than 100 yards.  The physical examination showed a normal gait with normal lower extremity strength, sensation, and reflexes and negative SLR.  Back ROM was forward flexion of 75 degrees (90 degrees normal) with a combined ROM of 160 degrees (240 degrees normal), with pain and guarding throughout the ROM.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the mechanical low back pain condition 10% coded 5237 (lumbosacral strain).  The VA rated the degenerative disc disease of the lumbosacral spine condition 10% coded 5242 (degenerative arthritis of the spine), based on the VA C&P examination 1 month after separation, citing limitation of ROM.  

The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined range-of-motion greater than 120 degrees but not greater than 235 degrees) reported on the  C&P examination, the most proximate exam to the date of 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 documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  Although the CI reported pain radiating to the right LE at times, all exams in record noted normal LE strength, sensation, and reflexes radiating pain from the back condition is subsumed under the general spine rating criteria.  The PEB also listed bulging disc L5/S1 as a related category 2 condition (a condition that contributes the primary unfitting condition but is not separately ratable).  The impairment from the bulging disc L5/S1 was subsumed under the overall rating for the mechanical low back pain and IAW VASRD §4.14 avoidance of pyramiding, more than one rating based on the same impairment is prohibited.  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 low back condition.  

BOARD FINDINGS:  In the matter of the mechanical LBP 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 20140424, 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 15 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 USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USN