RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02432
BRANCH OF SERVICE:  marines	SEPARATION DATE:  20020131

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Mortarman, medically separated for “L3-L4 herniated nucleus pulposus and a stenosis,” with a disability rating of 20%.

CI CONTENTION:  The CI requests that all conditions be considered.  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 on 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 - 20011203	VARD - 20020328   	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L3/L4 Herniated Nucleus Pulposus and Stenosis	5295	20%	L3-4 Herniated Disc or Herniated Nucleus Pulposus and Stenosis with Degenerative Disc Disease at L3-4, S/P Decompressive Laminectomy and Right Side L3-4 Disectomy with Residuals	5293	10%	20011214 	
S/P L3/L4 Decompressive Laminectomy	Category II					
Degenerative Disc Disease at L3/L4 and L4/L5						
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

L3/L4 Herniated Nucleus Pulposus and Stenosis.  The Medical Evaluation Board (MEB) narrative summary (NARSUM) documented acute onset of lower back after a weight lifting injury in summer 1999.  Radiographic evaluations, in November 2000, documented L4-L5 degenerative disc disease (DDD), with diffuse disc bulging at L5-S1 vertebral levels.  A decompression surgery (L3-L4 laminectomy, discectomy) was performed in May 2001.  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 “herniated lumbar disc L4/S5 as well as L5/S1,” “degenerative disc disease at L3/L4 and L4/L5”, and “status post L3/L4 decompressive laminectomy and right side L3/L4 DIS” for PEB adjudication.  

At a sick call visit, in August 2001 (5 months prior to separation), the CI reported “back spasm,” with radiation to the bilateral lower extremities.  The examiner documented an antalgic gait, paraspinal muscle tenderness with unilateral spasm, and normal strength.  Visits in July, September, and October 2001, documented treatment for acute lower back pain radiating to the left buttocks and thigh.  All resulted in treatment with narcotics, muscle relaxants, or corticosteroids, and limited physical activity or duty.  The MEB NARSUM exam was performed on 13 September 2001 (4 months prior to separation).  The examiner documented full range of motion with pain, and an “ataxic” gait.  On the MEB DD Form 2808, Report of Medical Examination, dated 24 October 2001 (3 months prior to separation), the examiner documented a “normal” spine exam.  There was no documentation of severe listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in the standing position, or abnormal mobility on forced motion.  

The VA Compensation and Pension (C&P) exam, dated 14 December 2001 (2 months prior to separation), was not in evidence for review; however, a VA rating decision, dated 28 March 2002, documented the C&P findings at that exam.  The CI reported overall improvement with flares of discomfort, fatigue, lack of endurance, and stiffness that he conservatively managed with medication, exercise and stretching.  Gait and strength of the bilateral lower extremities was within normal limits.  There was tenderness of the right paraspinal muscles and normal ROM.  Nerve tension testing was negative for radiculopathy bilaterally.  Radiographs documented moderate DDD at L4-L5 and L5-S1 vertebrae.  

The Board directed attention to the rating recommendation based on the above evidence.  PEB rated the low back condition 20% coded 5295 (lumbosacral strain).  The PEB also listed the “degenerative disc disease at L3/L4 and L4/L5” and “status post L3/L4 decompressive laminectomy and right side L3/L4 DIS” conditions as related diagnoses (Category II) contributing to the disability in this case.  The VA rated the low back condition 10% coded 5293 (intervertebral disc syndrome), based on the VA C&P exam 3 months pre-separation, citing normal gait and strength, normal range-of-motion, radiographic evidence of L4-S1 degenerative disc disease with no clinical findings of neurologic deficits.  The Board noted that both of the PEB Category II conditions were related diagnoses to the L4/S5 and L5/S1 herniated lumbar disc condition and were not conditions which could be separately rated IAW VASRD §4.14 (avoidance of pyramiding).  

The Board next considered the evidence for rating.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  The Board noted that the 2002 VASRD standards for the spine, which were in effect at the time of separation, were subject to the rater’s opinion regarding degree of severity.  The Board correlated the above clinical data with the 2002 rating schedule; applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293 (intervertebral disc syndrome); and 5295 (lumbosacral strain).  Examinations proximate to separation did not show limitation of motion for a rating under VASRD diagnostic code 5292 (spine, limitation of motion of, lumbar).  There were several episodes between July and October 2001 that would support a 20% rating for moderate; recurring attacks under VASRD diagnostic code 5293 (intervertebral disc syndrome); however, there was no further documentation of attacks between October 2001 and the date of separation, and there was “overall improvement” in symptoms noted at the time of the VA C&P exam that would not support higher ratings under this code.  All members agreed a 20% rating was supported based on unilateral muscle spasm under VASRD diagnostic code 5295 (lumbosacral strain).  There were no findings to support higher ratings under this code such as marked limitation of forward bending.  At the time of the MEB NARSUM, there was no objective findings to support consideration of a separately unfitting peripheral nerve disability 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 for the low back condition.  

BOARD FINDINGS:  In the matter of the L3-L4 herniated nucleus pulposus and a stenosis 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 20140519, 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 10 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:

		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC