RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04365
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20040107

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Rifleman, medically separated for “multilevel lumbar degenerative disk disease” and a related category II condition of “right hip coxa saltans,” with a disability rating of 10%.  

CI CONTENTION:  CI received an 80% disability rating from the VA and contends the PEB rating of 10% for the lumbar disc and other 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 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 - 20031022	VARD - 20060316	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Multi-Level Lumbar Degenerative Disk Disease	5299-5295	10%	Low Back Degenerative Hypertrophic Changes	5242	40%	20050816	
Right Hip Coxa Saltans	Cat II	Right Hip Strain	5252-5019	10%	20050816	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Lumbar Degenerative Disk Disease (DDD).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain began sometime in 1998 following an injury.  In 2001, the CI was placed on limited duty (LIMDU) for facet syndrome [back] and right hip pain, possible labral tear.  The LIMDU narrative (MEB) from January 2002 found a tender back with full active lumbar spine motion and a tender and painful hip and recommended continued LIMDU.  

At the time of the June 2003 orthopedic evaluations the CI complained of lumbar spine pain and continued right hip pain and snapping.  The CI had received anesthetic and steroid injections with no pain resolution.  Radiographic studies (MRI) in January 2003 revealed DDD with disc protrusions at L3/4, L4/5 and L5/S1.  Right hip MRI was reported as “suspicious for labral tear with dysplasia.”  The treatment options favored conservative management over surgical intervention for the CI’s back and hip conditions.  On examination there was painful back motion with normal neurologic examination of the lower extremities.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “multi-level lumbar degenerative disc disease” and “right hip Coxa Saltans [snapping hip]” for PEB adjudication.  

The MEB NARSUM examination on 30 July 2003, 6 months prior to separation, noted complaints of persistent low back pain and right hip pain.  The physical examination revealed tenderness to palpation over the lumbosacral spine, sacroiliac joint and right hip (greater trochanter).  There were no muscle spasms, and motor, sensory, and reflex testing was normal.  Provocative testing for radicular symptoms was negative.  The recommendations included that the CI should not engage in any multiple physical activities, “or entering any area where his unsteady gait poses a danger to himself or others.”  

At the MEB examination (recorded on DD Form 2807 Report of Medical History and DD Form 2808 Report of Medical Examination) dated 5 August 2003, 5 months prior to separation, the CI reported recurrent LBP in paraspinals at L4 and numbness or tingling.  The physical examination revealed “pain in the right hip,” “positive low back pain in paraspinals,” negative provocative testing for radicular symptoms, and normal gait with normal strength and reflexes in the lower extremities.  

At the VA Compensation and Pension (C&P) examination in August 2005, performed 20 months after separation, the CI reported constant LBP characterized as aching, burning, squeezing and sharp with a severity level of 9/10 resulting from physical activity.  The CI was able to function without medication and no reportable incapacitation, functional impairment, or loss of work.  Physical examination showed normal gait, no muscle spasm, no radiation of pain, and no evidence of ankylosis in the spine.  X-ray studies showed an overall negative lumbar spine with thoracic degenerative changes.  The range of motion (ROM) of the thoracolumbar spine was forward flexion of 30 degrees (normal 90), extension to 20 degrees (normal 30) and lateral flexions each to 10 degrees (normal 30) with pain on motion, and no change on repetition.  

The Board directed attention to its rating recommendation based on the above evidence.  The Board must correlate the above clinical data with the 2004 rating schedule; applicable at the date of separation.  The PEB assigned a 10% rating using code 5299-5295 (lumbosacral strain).  The 10% rating criteria for 5295 was “with characteristic pain on motion;” however, code 5295 was replaced with the current spine rules by the VASRD change effective 26 September 2003 (prior to separation).  The Navy PEB listed the right hip Coxa Saltans condition as a related diagnosis (Category II) that contributed to the disability in this case.  The Board agreed that the right hip Coxa Saltans condition was a separate condition which could be separately rated and it is discussed below.  The VA assigned a 40% rating using code 5242 (degenerative arthritis of the spine) based on the VA C&P examination 20 months after separation, citing forward flexion 30 degrees or less.  The VA also assigned a 10% rating for the right hip condition using analogous code 5252-5019 (thigh, limitation of flexion - bursitis), citing painful motion.  

Regarding the back condition, the Board considered that the 20 month post-separation VA examination included the only ROMs using a goniometer and assessing repetition IAW VASRD §4.46 (accurate measurement), even though that examination lacked rotation measurements.  However, the remoteness from separation and lack of significantly limited ROMs in the STR proximate to separation decreased the probative value of the VA examination.  The Board adjudged that the STR had the highest probative value for rating at the time of separation.  There was no measured limitation of thoracolumbar spine motion to support a minimum rating under the General Rating Formula for Diseases and Injuries of the Spine; however, the NARSUM examination and STR noted the presence of localized tenderness in almost all entries and painful motion in many entries.  A 10% rating was therefore warranted with consideration of functional loss and VASRD §4.40, §4.45, and §4.59.  

In considering other pathways to a higher rating, it was noted that the NARSUM indicated restrictions based on an unsteady gait, although the gait was not otherwise specifically addressed in the physical examination.  The Board majority concluded that this was a sufficient basis for a 20% rating (i.e. 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 was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 20% for the lumbar DDD condition, coded 5242.  

Regarding the right hip Coxa Saltans condition, the LIMDU, non-medical assessment (NMA), and MEB indicated the hip condition interfered with duty.  The multiple hip-specific treatments and abnormal imaging of the hip indicated separate hip joint pathology and not radicular pain from the lumbar DDD condition.  The Board adjudged that the right hip condition was reasonably separately unfitting.  There was STR evidence of pain limited hip motion that warranted a rating of 10% IAW VASRD §4.59 (painful motion).  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right hip Coxa Saltans condition, coded 5252-5019.  

BOARD FINDINGS:  In the matter of the multi-level lumbar degenerative disc disease condition, the Board majority recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the right hip Coxa Saltans condition, the Board unanimously recommends a finding of separately unfit with a disability rating of 10%, coded 5252-5019 IAW VASRD §4.71a.  The single voter for dissent recommended modification and did not elect to submit a minority opinion.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Multi-Level Lumbar Degenerative Disc Disease	5242	20%	
Right Hip Coxa Saltans	5252-5019	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140428, w/atchs
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 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 29 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 12 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 28 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 29 Aug 16 ICO XXXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 12 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 12 Sep 16 ICO XXXXXXXXXXXXXXXXXXXX

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

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.  

     b. former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.  

     c. former USMC: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 10 percent) effective date of discharge.  

     c. former USMC: Placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by transfer to the Permanent Disability Retired List with a final disability rating of 30 percent. 

     d., former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge. 

     e. former USMC: Placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by transfer to the Permanent Disability Retired List with a final disability rating of 30 percent.

     f. former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.  

     g. former USN: Retroactive placement on the Permanent Disability Retired List with a 50 percent disability rating (increased from 10 percent) effective date of discharge.

     h. former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.

     i. former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 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.