RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03743
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20071231

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

CI CONTENTION:  The CI requests the Board consider all conditions.  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 - 20070910	VARD - 20080616	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Thoracic Back Pain	5237	10%	Scheuermann's Kyphosis and Thoracic Scoliosis with Spasm, Thoracic Spine	5237	20%	STR	
Thoracic Scoliosis (Mild) with Spasm	Cat II					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Thoracic Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic back pain condition began in May 2006 after a “twisting” injury.  Radiographic (X-ray) studies of the spine performed on 18 May 2006 showed a mild curvature of the thoracic spine to the right (scoliosis).  The vertebral bodies’ height and the intervertebral disc spaces were normal.  During an emergency care clinic visit on 28 April 2007, the examiner recorded the CI had a significant mid-level back spasm with no related trauma and the pain did not radiate to the legs.  The CI was treated again at the emergency care clinic on 19 July 2007 for continued back pain and muscle spasms with a bent over gait.  Evaluation in August 2007 documented increased kyphosis (abnormal curvature, in addition to underlying dextroscoliosis) of the thoracic spine with a shortened right leg length.  Despite treatment, the chronic back pain condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for a MEB.  The MEB forwarded “backache, unspecified” for PEB adjudication.  

At the MEB NARSUM examination dated 15 August 2007, 8 months prior to separation, the CI reported mid back pain between his shoulder blades with minimal relief from physical therapy, pain medication and muscle relaxant medications.  Physical exam showed the CI had “near full range of motion of his thoracic and lumbar spine with pain only at the extremities.”  He had bilateral full strength and range of motion of his upper extremities with full range of motion of his hips, knees and ankles.  The examination showed the CI had some tenderness and the mid-level of his spine and muscle spasms.  The examiner noted and X-rays of the spine showed no evidence of spondylolysis or spondylolisthesis.  

At the time of the neurosurgery clinic appointment on 17 January 2008, less than a month after separation, the examiner recorded that the CI had been diagnosed with Scheuermann’s disease (abnormal growth of the back that causes pain) in 2006.  On examination the CI’s back had tenderness and the examined did “not appreciate a significant kyphosis” (while standing) and no scoliosis.  The examiner noted a review of the CI’s diagnostic imaging (X-ray and MRI) showed “approximately a 53 degree thoracic kyphosis with anterior wedging throughout.”  The neurosurgeon recommended continued physical therapy for pain.  

The CI filed to report for his scheduled VA Compensation and Pension (C&P) general medical or spine examination in June 2008.  However, at his initial mental health VA C&P dated 26 March 2008, performed 3 months after separation, the CI reported he had missed work because of back spasms and wore a brace.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic back pain condition 10%, coded 5237 (lumbosacral strain) and cited that the condition existed prior to service and was service aggravated (0% deduction).  The PEB listed the thoracic scoliosis (mild) with spasm condition as a related diagnosis (Category II) that contributed to the disability in this case but was not separately unfitting.  The PEB back conditions were not separable and the Board considered all thoracolumbar spine conditions in rating the back under VASRD §4.71a.  The VA rated the chronic back pain condition 20% coded 5237 (lumbosacral strain), based on the CI’s STR, citing muscle spasms and abnormal spinal contour that were permanently worsened as a result of military service.  

There was no range of motion evidence supporting any rating higher than 10%.  The Board deliberated if the record supported the 20% criteria for “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.”  There were multiple episodes of muscle spasm and tenderness documented in the record and indications of abnormal spinal contour.  The Board considered if the spasm and tenderness resulted in abnormal (or worsened) spinal contour over a picture of underlying abnormal contour due to bony abnormality (underlying scoliosis and/or wedging).  Based upon the totality of the evidence, the Board agreed that the CI’s disability picture more nearly approximated the 20% criteria for severe muscle spasms and abnormal spinal contour.  

There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic thoracic back pain condition, coded 5237.  

BOARD FINDINGS:  In the matter of the chronic back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Thoracic Back Pain with Thoracic Scoliosis (Mild) with Spasm	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140813, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
	         DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 31 May 16 ICO XXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 6 Jun 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 7 Jun 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 31 May 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 7 Jun 16 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (g) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.
     
     e. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effect date of discharge.

     f. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     g. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.