RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-03221
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20090130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Small Arms Repair Technician) medically separated for L4-5 disk herniation with sciatica, rated at 20%.  

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 DAV, 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:  

Recon PEB - Dated 20081215	VA* - (~5 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L4-5 Disk Herniation …	5243	20%	L4-5 Disk Herniation with Sciatica …	5243	20%	20080905	
Lumbar Radiculopathy	Cat II					
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 	
RATING:  20%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20090212 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

L4-5 Disk Herniation with Sciatica Condition.  The CI first presented with a 1-½ week history of low back pain (LBP) on 13 February 2008, 2 weeks after accession, which began in training and after he heard a “pop” in his back.  The pain radiated to his right lower extremity (RLE), but the neurological examination was normal.  The range-of-motion (ROM) was reduced.  He was treated conservatively with duty restrictions and medications with continued pain.  Magnetic resonance imaging (MRI) on 20 June 2008 showed a broad herniated disc at L4-5 impinging the right and left L5 nerve roots.  He was seen in neurosurgery on 1 July 2008 and declined surgery and injections.  Electro-diagnostic studies on 21 July 2008 were normal.  He was then seen in neurology 2 days later and noted to have a normal neurological examination other than an abnormal gait from pain (antalgic).  He continued to have pain despite the conservative management including chiropractic care and electrical stimulation (TENS) and was then entered into the MEB process.  At the VA Compensation and Pension (C&P) examination performed approximately 5 months before separation, the CI reported pain radiating to the RLE.  He reported incapacitation, but the frequency was documented as “ongoing incapacitating episode since initial injury.”  On examination, he had a slow gait, but an otherwise normal neurological examination.  Loss of normal lumbar curvature was present as were spasm, tenderness, and pain with motion.  However, these were not thought to cause a gait problem or abnormal spinal contour.  The ROM was reduced as charted below.  Repetition was painful, but caused no additional limitation in motion.  Provocative testing for nerve root irritation was positive bilaterally.  The narrative summary (NARSUM) was dated 8 October 2008, 4 months prior to separation.  The CI reported LBP which radiated down the RLE to his foot.  His gait was antalgic, but the neurological examination otherwise normal.  Provocative testing for nerve root irritation was positive bilaterally, but the spine was non-tender.  A VA outpatient visit on 21 January 2009, 9 days prior to separation, documented a normal neurological examination and gait.  Provocative testing for nerve root irritation was positive on the right.  The single goniometric ROM evaluation in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, showed flexion limited to 50 degrees and a combined ROM of 200 degrees.  Motion was painful.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the back at 20% using the code 5243 (intervertebral disc syndrome).  This is supported by the limitation in motion on the VA examination.  The Board considered if a separately unfitting radiculopathy was present at separation, but noted that the neurological examination was consistently normal proximate to separation other than gait which was itself normal nine days prior to separation.  Electrodiagnostic testing was negative.  The evidence does not support the presence of a separately unfitting radiculopathy at separation.  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 back pain (disc herniation with sciatica) condition.  

BOARD FINDINGS: In the matter of the disc herniation with sciatica 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 20140701, 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 4 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, former USMC

						 				XXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)