RECORD OF PROCEEDING
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00128
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20051215

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 “chronic mechanical low back pain [LBP],” with a disability rating of 10%.

CI CONTENTION:  The CI asserts the increased deterioration of his back condition has rendered him unable to work.  His 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 - 20051027	VARD - 20060314	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical LBP	5299-5237	10%	Degenerative Disc Disease (DDD)	5242	20%	20051123	
			RLE Radiculopathy…DDD	8520	10%	20051123	
DDD of the Lumbar Spine…	CAT II					
Overweight	CAT IV	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS: 30%	

ANALYSIS SUMMARY:  

Chronic Mechanical LBP.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in September 2002 when he twisted it throwing mail from a helicopter.  He was treated with medications and 5 days of light duty.  A post-deployment form completed 5 May 2003, 4 days after re-deployment, noted that the CI had excellent health and no unresolved medical issues.  The CI was then seen on 16 June 2003 in the SMART (sports medicine and reconditioning therapy) clinic and reported that he had jumped into a fox hole in January and the reinjured his back aboard ship in May with recent re-aggravation while running.  He was treated with medications and light duty.  On 12 November 2003, he was seen in primary care for LBP and reported the onset in February 2003 when he landed on an aiming stick while jumping out of a vehicle.  He was referred to orthopedics and found to have a stiff back but an otherwise unremarkable examination.  An MRI showed DDD.  His pain persisted and he was placed on the first of three successive periods of Limited Duty (LIMDU) on 4 November 2003.  He also underwent a series of epidural steroid injections without resolution of his symptoms.  He then had an intra-discal electro-thermal procedure on 11 October 2004.  It also failed to resolve his symptoms although he did report improvement.  It was anticipated that he would be able to return to full duty after the final LIMDU period, but he reported ongoing pain and was referred for an MEB.  The MEB NARSUM dated 20 September 2005 (3 months prior to separation), recorded that the CI had the onset of LBP in April 2003 after jumping into a foxhole.  He reported ongoing pain aggravated by activity.  On examination, the CI had difficulty arising from a seated position and difficulty getting on and off the examination table.  Tenderness to palpation was present, but atrophy was absent and the back inspection back was otherwise normal.  Provocative testing for nerve root irritation was normal; the hamstrings were noted to be tight.  The range of motion (ROM) was reduced as charted below.  The gait and neurological examination were normal.  The MEB physical examination the next day also noted decreased forward flexion and a normal neurological examination.  At the VA Compensation and Pension (C&P) examination performed on 23 November 2005, 3 weeks prior to separation, the CI reported that he continued to experience constant LBP.  He reported 365 days of incapacitation and 30 days lost from work.  Review of the records does not support this.  The examiner noted the CI came into the examination with a cane, but walked across the room without its use.  He was able to get on and off the examination table with mild difficulty.  The examiner stated the CI’s gait was not unsteady or unpredictable and that he had normal posture.  Mild paraspinal muscle spasm was present, but without evidence of tenderness or weakness.  The straight leg raise was positive at 40 degrees on the right, but negative on the left; however, there was no evidence of radiation or pain.  The examiner recorded that this was indicative of a radiculopathy.  However, the neurological examination was normal and atrophy was absent.  The examiner also recorded that the gait was normal in the discussion of the findings.  X-rays that day showed an increase in the normal lumbar curve (rather than the straightening seen with spasm) and DDD.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	LIMDU MED Board ~8 Mo. Pre-Sep 	Ortho ~7 Mo. Pre-Sep	NARSUM ~3 Mo. Pre-Sep	VA C&P ~1 Mo. Pre-Sep	
Flexion (90 Normal)	Within Normal Limits	50	65	55	
Combined (240)		185	130	170	
Comment	“Stiff”, but pain not recorded	Tender to palpation	Tender to palpation	Tender to palpation; spasm	
§4.71a Rating	0%	20%	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5299-5237 code (lumbosacral or cervical strain), based on forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.  The PEB further characterized the back by adjudicating degenerative disk diseases of the lumbar spine, specifically L4-L5 as a Category II condition, one that contributes to the unfitting condition.  Based on the VA C&P examination one month before separation, the VA assigned a 20% rating coded 5243 (intervertebral disc syndrome) citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  The VA also assigned a 10% rating using 8520 (mild incomplete paralysis of the sciatic nerve), based on straight leg raising being positive at 40 degrees on the right.  The Board first considered if an unfitting radiculopathy was present at separation.  The VA examiner opined that a radiculopathy was present based on the straight leg raise.  This examination and the MEB NARSUM both recorded a normal neurological examination though and the presence of an unfitting radiculopathy is not supported.  The Board concluded therefore that this condition could not be recommended for additional disability rating.  The Board next considered the back.  The PEB found the CI unfit for mechanical LBP with a Category II condition of DDD.  The Board noted that the total disability from both conditions is used for rating purposes and that these cannot be separated for rating purposes without violating VASRD §4.14 (avoidance of pyramiding).  The loss of motion on two of the three examinations proximate to separation supports a 20% 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 condition, retaining the 5299-5237 code.  

BOARD FINDINGS:  In the matter of the chronic mechanical LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a.  The DDD of the lumbar spine is appropriately subsumed under the unfitting condition.  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 Mechanical Low Back Pain	5299-5237	20%	
Degenerative Disc Disease of the Lumbar Spine	Category II Condition	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150202, 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 03 Nov 16 ICO XXXXXXXXXXXXXXXXXX    
	(c) PDBR ltr dtd 21 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 24 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 28 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 21 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 03 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 28 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 28 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 28 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 28 Oct 16 ICO XXXXXXXXXXXXXXXXXX
	(l) PDBR ltr dtd 03 Nov 16 ICO XXXXXXXXXXXXXXXXXX

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

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

     a. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge. 

     b. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge. 

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

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

     f. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge. 

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

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

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

     j. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     k. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 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)