RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02728
BRANCH OF SERVICE:  MARINE CORPS	SEPARATION DATE:  20081129

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-2 (Rifleman) medically separated for low back pain.  The low back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards and was referred for a Medical Evaluation Board (MEB).  The “lumbago” and “displacement of lumbar intervertebral disc without myelopathy,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “low back pain” as a Category I unfitting condition, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  Additionally, the board adjudicated “herniated nucleus pulposus L4-L5 and L5-S1” as Category II (contributing to the unfit Category I condition).  The CI made no appeals and was medically separated.  

CI CONTENTION:  “Please consider all consent.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  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 Military/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 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:  

IPEB – Dated 20080829	VA* - (~16 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	Chronic Lumbar Sprain, Due to Leg Length Discrepancy, Left Longer than Right, Scoliosis, and Herniated Disc L5-S1 and Bulging Disc L4-L5	5237	10%	20100524	
Herniated Nucleus Pulposus L4-L5 and L5-S1	Category II					
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 3	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20100823 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY: 

Low Back Condition.  The Service treatment record documented that the CI developed back pain while in basic training.  Serial lumbar and thoracic spine X-rays were unremarkable.  A lumbar spine MRI showed a left disc (paracentral) herniation at L5-S1 with displacement of the left, and effacement of the right, S1 nerve roots.  There was no central canal, and minimal left neural foraminal (nerve root opening), stenosis (narrowing).  There was a diffusely bulging disc at L4-L5 without central canal or neural foraminal stenosis.  At a neurosurgery evaluation, the CI complained pain involving his lower back and bilateral legs (R>L).  Pain began during basic training and was exacerbated by prolonged standing.  The physical exam noted a positive straight leg raise (SLR) test (assesses sciatic nerve root compression by a herniated disc) on the right.  His right leg was weaker compared to the left.  Lower extremity deep tendon reflexes (DTRs) were trace.  There was no sensory loss or foot drop noted.  The surgeon opined that because the herniated discs (by MRI) did not compromise the neural elements, and due to the CI’s age, he was not a surgical candidate.  

The narrative summary (NARSUM) performed by orthopedic surgery, 5 months prior to separation, recounted the history and interventions.  The CI reported onset of chronic back pain during basic training without any specific trauma.  He complained of 7/10 mid to low back pain with radiation.  Pain was exacerbated by immobility, prolonged standing, and bending.  The CI denied bowel, bladder, or sexual dysfunction.  Symptoms did not improve with conservative management (activity modification, nonsteroidal anti-inflammatory drugs [NSAIDs], muscle relaxants, and physical therapy [PT]) and he was not deemed a surgical candidate.  The physical exam revealed an antalgic (assuming a gait or posture to lessen pain) gait but he was able to perform a normal heel walk.  The spine exam revealed tenderness in the lumbar area.  The range-of-motion (ROM) exam documented flexion of “fingers to his ankles,” extension of 10 degrees, lateral bends of “fingers to knees,” and rotation was normal.  The SLR tests were negative (physiologic).  His right lower extremity was weaker compared to the left but there was no foot drop noted.  Strength (5/5) was normal he was neurovascularly intact distally.  The DTRs were 2+ at the patella and absent at the Achilles tendons.  The diagnoses listed low back pain and herniated disc cores (nucleus pulposus) at L4-L5 and L5-S1.  

At the VA Compensation and Pension (C&P) exam, performed 16 months after separation, the CI complained of onset of back pain in basic training.  His central low back pain was 5/10, and up to 10/10 with exacerbations.  Pain was exacerbated by prolonged standing, prolonged walking, bending, twisting, and lifting and relieved by an NSAID (Ibuprofen) and a muscle relaxant (Flexeril).  The CI denied a history of back trauma, surgery, numbness, bowel dysfunction, or bladder dysfunction.  The physical exam revealed a normal gait (native, heel, and toe).  The back exam revealed an obvious pelvic tilt (right leg 1.5 cm shorter than left) with a slight right convex curvature.  There was muscle spasm without tenderness.  The active ROM was flexion of 90, extension of 20, bilateral side bending of 20, and bilateral rotation of 35 degrees.  There was no change in ROM with repetitive (X 3) testing.  The ROM measurements were associated with complaints of tightness, but not pain.  The bilateral SLR tests were negative (caused buttocks and low back discomfort but not radiation).  Motor strength (5/5), sensation, and DTRs were intact and symmetric.  A lumbosacral spine X-ray was normal.  The examiner noted a history of L5-S1 disc herniation and L4-L5 disc bulge by MRI.  The diagnoses listed chronic lumbar sprain with associated leg length discrepancy and scoliosis (abnormal lateral spine curvature).  In the subsequent C&P exam, 18 months after separation, the same examiner stated “It is, in my opinion, as likely as not that the leg length discrepancy had a major role in the low back problem since he is out of alignment on a chronic basis and has been and it is as likely as not that this malalignment or misalignment of his lumbar spine due to his leg length discrepancy is the cause of the problems within the spine itself.”

The Board directed attention to its rating recommendation based on the above evidence.  The IPEB rated the low back condition at 10% (VA code 5237; lumbosacral strain).  The PEB cited low back pain.  The listed Category II condition (herniated nucleus pulposus L4-L5 and L5-S1) was considered to contribute to the unfitting low back condition.  The VA rating decision (VARD), citing the C&P exams 16 and 18 months after separation, rated the low back condition at 10% (5237).  The VARD cited chronic lumbar sprain due to congenital (inborn) leg length discrepancy, pelvis tilting, subsequent scoliosis, herniated L5-S1 disc, bulging L4-L5 disc, degenerative disc disease by X-ray, chronic lower back pain,  muscle spasm, tenderness, ROM, no additional loss of ROM with repetitions, normal gait, normal strength, normal sensation, normal reflexes, and functional impairment with prolonged standing.  The Board agreed a 10% rating was supported based on VASRD §4.40 (functional loss) or VASRD §4.59 (painful motion).  While the ROM in the MEB was not quantified in degrees, board members agreed that the limitation of motion in C&P exam was consistent with a 10% rating.  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).”  The critical decision is whether or not there was significant motor weakness which would impact military occupation specific activities.  There was no evidence that motor weakness or sensory loss 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.  While there was muscle spasm, there was a normal gait.  While there was an abnormal spinal contour (scoliosis), it was secondary to a congenital leg length discrepancy, and not muscle spasm or guarding.  Other routes to a rating higher than the PEB’s 10% were considered, but there was no evidence of additional functional loss from repetitive use to warrant application of VASRD §4.45; and no evidence of incapacitating episodes that would justify a minimum rating under the alternative formula for rating intervertebral disc disease.  After due deliberation 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 the low back condition.  

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the low back 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.  

RECOMMENDATION:  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 20140606, 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 1 Dec 15

      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:

- XXXXXXXXXXXXXXXXXXX, former USMC  
- XXXXXXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXX, former USN

						  XXXXXXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)