RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03824
BRANCH OF SERVICE:  MARINE CORPS 	BOARD DATE:  20150709
SEPARATION DATE:  20070824

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Mortarman) medically separated for lumbar degenerative disc disease DDD).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The conditions, characterized as “degeneration of lumbar or lumbosacral intervertebral disc”, “other postsurgical status” and “lumbago” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated “lumbar degenerative disk disease at L5-Sl” as unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be Category II, contributing to unfit conditon.  The CI initially demanded a Formal PEB (FPEB); however, he subsequently accepted the findings of the IPEB.  He made no further appeals and was medically separated.  

CI CONTENTION:  “Please consider all conditions”. 

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 20060121	VA* - Based on VA Treatment Records (VATR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar DDD at L5-Sl	5243	20%	Back Condition	5299-5237	NSC	VA Records	
Lumbago	Cat II					
Status Post Disk … L5-Sl	Cat II					
Other x 0 (Not In Scope)	Other x 0 	
RATING:  20%	RATING:  ---%%	
*Derived from VA Rating Decision (VARD) dated 20090528 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  The Board noted that while the PEB listed lumbar DDD as the unfitting condition and lumbago and status post disc replacement at L5-S1 as Category II, the CI was rated for the combined disability IAW the VASRD without consideration of the relative contributions of each listed back condition.  Accordingly, a single history and rating discussion is presented.  

Lumbar Degenerative Disk Disease at L5-Sl Condition.  The record shows the development of low back pain (LBP) in 2003 which progressed despite management with medications, physical therapy (PT), duty limitations, and injections.  He was found to have a herniated disc at L5-S1 and underwent a disc replacement on 10 May 2005.  A request for continued rehabilitation by orthopedics on 3 October 2005 noted that the CI was progressing well.  However, the CI did not improve sufficiently to return to full duty and was referred for MEB.  The narrative summary (NARSUM) was dated 24 April 2006, almost 12 months after surgery and 16 months prior to separation.  The CI reported continued LBP without radicular symptoms.  On examination, the gait was normal as was the neurological examination.  There was some loss of the normal curvature of the lumbar spine and the lumbar spine was tender to palpation.  The range-of-motion (ROM) was limited and painful in some planes with flexion to 6 inches above the floor (over 60 degrees) and a combined ROM of over 190 degrees.  At the MEB examination on 7 June 2006, the CI reported limitations in carrying weight.  The examiner noted that the ROM was limited by pain.  The neurological examination was checked as normal.  An X-ray on 14 July 2006 noted a stable placement of the artificial disc.  A primary care note dated 17 July 2007, 5 weeks prior to separation, noted that the CI was in no acute distress and did not appear to be uncomfortable.  A VA primary care note dated 3 March 2008, 6 months after separation, documented that the CI had LBP since about a year after the disc replacement (May 2005).  He had tenderness of the paraspinal muscles on examination, but full ROM without significant pain.  Six months later, on 4 August 2008, he was again seen in the VA primary care clinic and reported that his back was “killing him.”  Paraspinal muscle tenderness was recorded, but no comment made on gait, ROM, spasm, or incapacitation.  A physical medicine note on 11 May 2009 recorded that the CI had worked as a private contractor with the USPO (United States Post Office) for 2 years.  In this job, he loaded and unloaded a truck.  The VA Compensation and Pension (C&P) examination was not performed until 4 January 2010, approximately 28 months after separation and well outside the 12-month window for high probative value for rating determinations.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the back at 20%, coded 5243 (intervertebral disc syndrome).  The VA initially did not have the service treatment records and denied service connection.  The 27 January 2010 VA rating decision, relying on the C&P done 3 weeks earlier, rated the back at 40%, coded 5299-5243 (analogous to intervertebral disc syndrome).  This was retroactive to 15 October 2008, 2 months after separation, the date of the original claim, but based on an examination remote from separation.  The Board found no route to a rating at separation higher than the 20% adjudicated by the PEB.  It also considered if an unfitting radiculopathy was present at separation, but noted that the neurological examination, when recorded, was normal.  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 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 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 20140822, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

X	

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)