RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03919
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20080215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Assault Amphibious Vehicle Crewman, medically separated for “degenerative disk disease, L4-5 and L5-S1 with small herniated disk at L5-S1” with a disability rating of 10%.

CI CONTENTION:  The CI made no specific contention in their application.  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 based upon a 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 - 20071219	VARD - 20090514	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Disk Disease, L4-L5 and L5-S1 Herniated Disk	5242-5237	10%	Lumbar Disc Disease with Advanced Degeneration 	5003-5237	10%	20081120	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS: 10%	

ANALYSIS SUMMARY:  

Lumbosacral Degenerative Disk Disease (DDD).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in June 2006 after performing physical training.  Diagnostic imaging on 7 September 2006 revealed a left sided L5-S1 disc herniation with contact to the exiting L5 nerve root.  There was no surgical indication, and conservative treatment to include epidural steroid injections did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “degeneration of lumbar or lumbosacral intervertebral disc,” for PEB adjudication.  During the MEB examination on 31 October 2007, 4 months prior to separation, the CI reported low back pain (LBP), occasionally radiating down his left leg.  His physical examination (PE) revealed normal gait, reflexes, and strength.  The examiner was silent regarding thoracolumbar range of motion (ROM).  At the VA Compensation and Pension (C&P) orthopedic evaluation on 08 November 2008, 10 months after separation, the CI reported a constant sharp, throbbing, and burning LBP radiating to his left leg and additionally associated with lower extremity swelling, give-way, locking, weakness, and stiffness.  His painful symptoms were aggravated by standing, bending, lifting, kneeling, crawling, squatting, and walking.  Flare-up symptoms occurred 3-4 times per week.  His PE revealed normal but painful ROM as well as normal gait, reflexes, and posture.  There was no muscle spasm or tenderness noted about the thoracolumbar spine.  

The Board directed attention to its rating recommendation based on the above evidence.  Although the service and VA titled the unfitting back condition slightly differently, they both utilized (in various combinations) similar codes of 5242 (degenerative arthritis) and 5237 (lumbosacral strain) respectively; without reasoned documentation by the PEB and citing limited motion by the VA.  Although there was insufficient limitation of motion to support a minimum rating, the Board agreed a 10% rating was justified for the presence of painful motion.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.

The Board also considered if an additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain, and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait, and the sensory changes did not affect his job performance.  Physical examinations performed proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from any nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  After due deliberation, and 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 low back condition. 

BOARD FINDINGS:  In the matter of the low 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 20140612, 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 21 Jun 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:

		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC

						XXXXXXXXXXXXXXXXXXXX	     				  			  		Assistant General Counsel
						(Manpower & Reserve Affairs)