RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-03713
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20091230

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E3, Fixed Wing Aircraft Mechanic, medically separated for “chronic low back pain,” with a disability rating of 10%.  

CI CONTENTION:  The CI asserts he was given a higher rating for his condition(s) by the VA and that he feels he should be medically retired.  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 - 20090923	VARD - 20100222	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Arthritis of the Lumbosacral Spine with Herniated disc disease	5010-5237	10%	20091207	
Multilevel Lumbar Spondylosis	Cat II					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain Condition with Multilevel Lumbar Spondylosis.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain condition began in March 2008 after falling from a truck.  Magnetic resonance imaging studies in February 2009 showed multilevel lumbar spondylosis (degenerative changes) with disk budges and narrowing of the nerve outlet areas (neural foramen).  There was no surgical indication.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for an MEB.  

The range of motion (ROM) examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	NARSUM ~5 Mos. Pre-Sep	VA ~1 Mos. Post-Sep	
Flexion (90 Normal)	“Normal”	70	
Combined (240)		170	
Comments	Painful motion; tender	Painful motion; tender; altered spine contour	
§4.71a Rating	10%	10%	

During the MEB NARSUM examination on 20 July 2009 (5 months prior to separation) the CI reported complaints of persistent lower back and bilateral leg pain.  The physical exam showed tenderness to palpitation of the bilateral paraspinal region, a normal ROM, with complaints of pain on extreme of ROM.  Straight leg raise testing was positive (for radiating symptoms).  The CI demonstrated decreased tactile sensory response of the right lateral left and dorsum of the foot with normal tactile response of the remainder of the bilateral lower extremities.  Muscle strength and gait were normal and the CI could toe/heel walk.  During multiple chiropractic clinic appointments through 17 August 2009 the CI consistently reported severe low back with pain down the bilateral lower extremities.  The 17 August 2009 exam indicated pain on motion, tenderness to palpitation, positive prone knee bending tests (radicular symptoms) and no muscle spasms.  

At the VA Compensation and Pension (C&P) examination on 7 December 2009, performed less than a month before separation, the CI reported dull and throbbing low back pain, mild to moderate, which also radiated to the bilateral lower extremities.  The physical exam showed moderate tenderness with no ankyloses, guarding or spasms noted, as well as a negative straight leg test.  Motor, reflex and sensory tests were normal.  The ROM was forward flexion of 70 degrees (normal 90) with a combined ROM of 170 degrees (normal 240) with pain on motion.  X-ray evidence indicated a mild levocurvature of the lumbar spine diagnosed as a minor abnormality.  VA records indicated the addition of 10% ratings for left and right lower extremity peripheral nerve conditions effective 25 February 2011 based on exam dated 28 March 2011 (15 months after separation) and later exams.  The March 2011 exam noted a limp with normal lower extremity motor strength, decreased left leg reflexes and decreased sensory exam in the left tibial/peroneal nerve distribution.  An electrodiagnostic study (EMG) was positive for lumbar radiculopathy (left peroneal motor nerves) “that is not significant at this time.”  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain condition 10% coded 5237 (lumbosacral strain), citing tenderness on the PEB worksheet.  The VA rated the arthritis of the lumbosacral spine with herniated disc disease condition 10% coded 5010-5237 (arthritis, due to trauma: rated as lumbosacral strain), based on the VA C&P examination less than a month before separation, citing limitation of forward flexion.  The Board agreed that a 10% rating, but no higher, was justified for either tenderness reported on the NARSUM exam or limitation of flexion (greater than 60 degrees but not greater than 85 degrees) reported on the VA examination.  It was noted that muscle spasms was present on the 12 August 2008 chiropractic examination, however, these were not associated abnormal gait or abnormal spinal contour to support the next higher rating of 20%.  The remote VA exams were adjudged as post-separation worsening and not indicative of the CI’s disability picture at the time of separation.  

Although the CI had intervertebral disc disease there were no incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported bilateral radiating leg pain and decreased sensation in the right foot at the NARSUM exam.  While the CI may have experienced some radiating pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There were no complaints or documentation of sensory loss by the time of the VA exam.  There was no objective evidence of a radiculopathy with functional impairments such as weakness with a direct impact on fitness that were separately functionally impairing for duty.  The Board therefore concluded that additional disability rating was not justified on this basis.  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 lower back pain condition.  

BOARD FINDINGS:  In the matter of the chronic lower 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.  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 20140620, 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 9 May 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, former USMC
		- XXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXX, former USMC