RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-03077
BRANCH OF SERVICE:  MARINE CORPS	Separation Date:  20060430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Small Arms Repairer/Technician) medically separated for “lumbago,” rated at 10%.   

CI CONTENTION:  “Please consider all conditions.”  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 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 20060222	VA* - (~5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbago	5242	10%	Back Strain with Continuing Radicular Symptoms shown as Herniated Intervertebral Disc/Lumbago…	5243-5237	20%	20060920	
Degenerative Disc Disease	Category II					
Herniated Intervertebral Disc	Category II					
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1 	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20070130 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  The PEB unfitting lumbago condition and the PEB category II conditions (DDD and herniated disc in the lumbosacral area) are all thoracolumbar spine conditions and not separable for rating purposes as the VASRD rates the thoracolumbar spine as a single condition IAW VASRD §4.71a. and the General Rating Formula for Diseases and Injuries of the Spine.  

Lumbago Condition.  The CI developed low back pain (LBP) in April 2004.  He reported a gradual onset of pain with a brief episode of shooting pain down his right leg with tingling into his right foot.  The pain progressed to intermittent pain that radiated down the posterior aspect of the CI’s leg to his foot.  A lumbosacral spine X-ray done in June 2004 was normal.  The CI was placed on his first 8-month LIMDU for LBP in November 2004.  A CT scan done in December 2004 for reports of LBP primarily along the left low lumbar to the sacroiliac (SI) region demonstrated a L5-S1 right paracentral disc extrusion with possible compression of the exiting right S1 nerve root and a moderate left L5-S1 neural foraminal stenosis.  The CI underwent two nerve root blocks for LBP, in March and June 2005 which provided little relief.  The CI was placed on a second 8 month LIMDU for lumbago in July 2005 with continued restrictions.  A lumbar spine MRI done in October 2005 showed degenerative changes at L5-S1.  The Non-Medical Assessment (NMA) done in December 2005 indicated that the CI attended approximately 11 weeks of physical therapy (PT) without any improvement in his back pain condition, but indicated the CI could perform his current duties and recommended retaining the CI until his EAS (September 2007) as a benefit to the command.  

The MEB Narrative Summary (NARSUM) exam approximately 4 months prior to separation documented that despite multiple PT treatments, two nerve blocks, and medication, the CI continued to report daily right LBP rated at 4/10 at rest and 7-8/10 with activity.  He reported infrequent shooting pain that lasted a few seconds into the posterior right leg down to the posterior thigh.  Medications included narcotic pain medication, a nonsteroidal anti-inflammatory, and Neurontin (gabapentin-for nerve pain).  The MEB NARSUM physical exam findings are summarized in the chart below.  

The VA Compensation and Pension (C&P) exam approximately 5 months after separation documented that the CI reported pain flares twice weekly that radiated down his right or left leg to the knee for approximately one minute and paresthesias which lasted approximately 1-3 hours and occurred about once or twice every 2 months.  He used a back brace for household chores and a cane occasionally when he had increased pain during the day.  Another VA exam performed approximately 12 months after separation noted the CI complained of intermittent paresthesias (abnormal sensation) in the buttocks and genital area and pain at 10/10 radiating down both legs.  The CI was taking narcotic pain medication and valium.  There were no reported episodes of incapacitation.  The VA C&P physical exam findings are summarized in the chart below.  

There were range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	MEB ~4 Mo. Pre-Sep	VA C&P ~5 Mo. Post-Sep	VA C&P ~12 Mo. Post-Sep	
Flexion (90 Normal)	80	35 (25 DeLuca)	80	
Combined (240)	Greater than 120	Greater than 120	200	
Comment	Painful motion; + tenderness; + straight leg raises; gait nml; motor/sensory/reflexes nml	Painful motion; 10 degree decrease in flex with repetition; gait nml; reflexes, sensory nml;	Painful motion; + spasm; + tender; normal gait/contour; +SLR; motor/sensory/reflexes nml	
§4.71a Rating	10%	20-40% (VA 20%)	10% (VA cont 20%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition at 10% coded the lumbago condition as 5242 (degenerative arthritis of the spine).  The VA coded the “Back Strain with Continuing Radicular Symptoms shown as Herniated Intervertebral Disc/Lumbago…” condition as 5243 (intervertebral disc syndrome) with 5237 (lumbosacral strain) and rated at 20%, based on a different exam, and continued their 20% rating following a subsequent exam which showed improved ROMs.  The Board deliberated on the probative value of the different exams in evidence.  The Board agreed that the MEB exam was closest to the date of separation, most closely represented the disability picture in the remainder of the record and had the highest probative value for rating at separation.  The MEB exam documented painful motion and mild tenderness, meeting the 10% rating criteria of “localized tenderness not resulting in abnormal gait or abnormal spinal contour.”  There was no evidence of incapacitating periods for higher rating.  The more limited thoracolumbar spine ROMs at the initial VA exam were considered post separation worsening, although not a permanent worsening, as the subsequent VA exam more closely aligned with the MEB exam.  

The General Rating Formula for the Spine includes all thoracolumbar spine pathology and includes symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the affected spine.  Although the CI reported occasional right leg numbness (paresthesias), there was no objective evidence of fixed motor weakness or focal neurologic deficit for additional rating.  Since no evidence of a functional impairment from any radiculopathy existed in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  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 chronic LBP 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 lumbago condition with degenerative disc disease and history of herniated intervertebral disc conditions 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 recharacterization of the CI’s disability and separation determination.   

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140624, 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 2 Feb 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
	     		Assistant General Counsel
				(Manpower & Reserve Affairs)