RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00087
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20050930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E6, Reconnaissance Man, medically separated for “spinal stenosis of lumbar region” and “degeneration of lumbosacral intervertebral disc” rated at 20%.

CI CONTENTION:  His disabling injury affects his ability to walk and overall quality of life.  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 - 20050614	VARD - 20060130	
Condition	Code	Rating	Condition	Code	Rating	Exam	
…Lumbar Disc Degeneration	5239-5299-5237	20%	DDD L4/5 & Grade II Spondylolisthesis	5003-5242	40%	20051215	
…Lumbosacral…Radiculitis	Cat II					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Spinal Stenosis & Lumbar Disc Degeneration.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in January 2003 with no specific injury or trauma identified.  Diagnostic imaging (MRI) in February 2004 showed degenerative spinal changes and an L4-L5 disc bulge causing narrowing of the spinal canal.  Electrodiagnostic studies performed on 19 November 2004 showed no evidence of radiculopathy.  A neurosurgical evaluation diagnosed degenerative disc disease at L4-L5 and spondylolisthesis (vertebral slippage), recommending surgery, however, the CI declined, pending worsening symptoms.  Conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “thoracic or lumbosacral neuritis or radiculitis, unspecified,” “spinal stenosis of lumbar region,” and “degeneration of lumbar or lumbosacral intervertebral disc” for PEB adjudication.

Physical therapy visits, between June to November 2003, documented ranges of motion (ROM) as full or within normal limits.  The physical therapy visit in January 2004 documented flexion as 50% of normal limited by pain.  At a neurosurgical consultation in November 2004 revealed flexion as full in all planes.

The MEB NARSUM examination on 9 December 2004 (10 months pre-separation) noted complaints of constant low back pain radiating into both legs, right greater than left, down to the heel of the foot.  Physical examination showed no gross motor or sensory defects, but mild sensory defects along the S1 nerve distribution.  Curvature of the spine was normal and the CI walked without difficulty.  Tenderness of the lower back was mild with ROM full.  Provocative nerve root irritation testing was positive for left side greater than the right.  The MEB examination 6 days later (15 December 2004) noted “limited ROM throughout,” spinal tenderness, and positive nerve root irritation.

At a primary care clinic appointment on 20 May 2005 (4 months pre-separation) the CI reported the inability to do the physical activities he used to do.  He experienced radicular pain with right side greater than left.  On examination, the CI was in distress due to back pain with an antalgic gait.  There was low back tenderness, but no deformity.  ROM was flexion to 20 degrees (normal 90) and combined ROM of 120 degrees (normal 240).

At the 15 December 2005 VA Compensation and Pension (C&P) evaluation (9 months after separation), the CI reported constant low back pain with radiation to the legs (right greater than left), at 7/10 severity, that limited walking to 5 minutes or 1 block.  The CI indicated he had lost 15-20 days of work in the previous 12 months.  Physical examination showed a slow gait with a limp; tenderness, muscle spasm, and abnormal curvature of the spine.  There was right lower extremity and left toes weakness.  The ROM was flexion to 20 degrees and combined ROM of 100 degrees limited by pain.  After repetition ROM flexion decreased to 10 degrees and combined ROM decreased to 90 degrees.

Radiologic evaluation showed a grade 2 spondylolisthesis (26%-50% slippage).  The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated the back condition 20%, analogously coded 5239-5299-5237 (spondylolisthesis or segmental disability; thoracolumbar strain), citing “…the preponderance of evidence is most consistent with impairment ratable at 20%.”  The VA rated the back 40%, analogously coded 5003-5242 (degenerative arthritis of the spine), based on the VA C&P examination 9 months after separation, citing limitation of motion.

The Board agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees reported at the May 2005 primary care and December 2005 VA examinations.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to the CI’s radicular back pain.  The Board requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to service disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a; and, there was no objective evidence of either motor weakness or sensory deficits that significantly interfered with satisfactory duty performance at separation; therefore, an additional rating is not recommended.

The PEB also listed “lumbar…radiculitis” as a related Category II condition (a condition that contributed to the primary unfitting condition but not separately ratable).  Any impairment from the lumbar radiculitis was properly subsumed under the overall rating for the back condition due to this lack of aforementioned functional impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the back condition, coded 5003-5242 or simply 5239.

BOARD FINDINGS:  In the matter of the spinal stenosis of lumbar region and degeneration of lumbosacral intervertebral disc condition the Board unanimously recommends a disability rating of 40%, coded 5003-5242 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; 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	
Lumbar Disc Degeneration	5003-5242	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141104, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 19 Sep 16 ICO XXXXXXXXXXXXXXXXXX   
	(c) PDBR ltr dtd 22 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 21 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 16 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 21 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 19 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 4 Oct 16 ICO  XXXXXXXXXXXXXXXXXX

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

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. XXXXXXXXXXXXXXXXXX, 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. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by assignment to the Permanent Disability Retired List with a final disability rating of 30 percent (increased from 10 percent).  

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

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

     e. XXXXXXXXXXXXXXXXXX, former USMC: An increase in disability rating from 30 percent to 60 percent for the period on the Temporary Disability Retired List followed by a final disability rating of 20 percent with entitlement to disability severance pay.

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

     g. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 40 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.

	XXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)