RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02317
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20070131

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Motor Vehicle Operator, medically separated for “L4-5 degenerative disc disease,” with a disability rating of 20%.

CI CONTENTION:  “Please review all conditions”.  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 - 20061026	VARD - 20070717	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L4-5 Degenerative Disc Disease	5243	20%	Lumbar Spine with Degenerative Disc Disease S/P Surgery  (also Claimed as Spondylolisthesis with Partial
 Dislocation of Vertebrae Post Decompression and Fusion)	5003-5010	20%	STR	
L5-S1 Spondylolisthesis	Cat II					
Status Post L4 to S1 Decompression 
and Fusion	Cat II					
Right Foot Hyperpathia	Cat II	Right Foot Condition 	5284	Def	STR	
Sleep Disorder	Cat II	Sleep Disorder	6899-6847	Def	STR	
Posttraumatic Stress Disorder	Cat III	Posttraumatic Stress Disorder 	9411	30%	STR	
Gastroesophageal Reflux Disease	Cat III	GERD	7346	0%	STR	
		Hiatal Hernia	7399-7346	Def	STR	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Lumbar Degenerative Disc Disease.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI was initially diagnosed with back pain in May 2003 after completing a tour in Iraq.  The CI underwent decompression and fusion back surgery in June 2005, and postoperatively he had a significant inflammatory reaction.  Consequently, a repeat decompression and extraction of hardware was performed in September 2005.  Post-surgical radiographic (X-ray) studies showed stable-appearing hardware with no evidence of abnormal motion.  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “acquired spondylolisthesis”, and “degeneration of lumbar or lumbosacral intervertebral disc” for PEB adjudication.  The MEB NARSUM examination on 11 January 2006 (12 months prior to separation) noted complaints of progressive back pain, incapacitating and severe in nature, along with symptoms of leg pain to the right leg.  Physical examination showed a normal gait and maneuvers for radicular signs were negative.  At the physical therapy clinic appointment on 13 March 2006, the CI reported pain in his lower spine.  On examination, he displayed a normal gait and painful and limited motion of flexion to 50 degrees and extension to 25 degrees (normal 30).  At the orthopedic clinic on 2 August 2006, the CI reported back pain and lower extremity numbness.  On examination, he had a well-healed surgical scar, and painful and limited motion to 45 degrees flexion and 10 degrees extension.  Examination tests for radicular signs were negative.  A VA Compensation and Pension (C&P) evaluation was not accomplished, the VA rating was based upon service treatment records.  

The Board directed attention to its rating recommendation based on the above evidence.  The Navy PEB rated the back condition 20% coded 5243 (intervertebral disc syndrome).  The PEB also listed L5-S1 spondylolisthesis, sleep disorder, right foot hyperpathia and status post L4 to S1 decompression and fusion, as related Category II (conditions that contributed to the primary unfitting condition but were not separately ratable).  The impairment from the Category II conditions were properly subsumed under the overall rating for the Category I back condition IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  The VA also rated the back condition 20% coded 5243 (intervertebral disc syndrome), based on the service medical records, and citing X-ray evidence that showed involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations.  The VA additionally rated the lumbar surgical scar at 10% under code 7804 (scar(s), unstable or painful).  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on all examinations prior to separation.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had radicular pain treated with surgery, and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and the sensory changes did not affect his job.  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 was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, and 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 back condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that Posttraumatic Stress Disorder (PTSD) and gastroesophageal reflux disease were not unfitting.  The PTSD and gastroesophageal reflux disease were not listed on the Limited Duty (LIMDU), or implicated in the non-medical assessment (NMA).  There was no performance-based evidence from the record that the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for PTSD and gastroesophageal reflux disease and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended PTSD and gastroesophageal reflux disease conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 20140513, 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 24 Jun 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 USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC 

						 XXXXXXXXXXXXXXXXXXXX
	     				  	Assistant General Counsel
						(Manpower & Reserve Affairs)