RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00789
BRANCH OF SERVICE:  Marine Corps	SEPARATION DATE:  20020228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Aircraft Communications Systems Technician,  medically separated for “chronic back pain postoperative” with a disability rating of 10%.  

CI CONTENTION:  “Review all conditions.”  The complete submission is at Exhibit A.

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 – 20020102	VARD – 20150917	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain Postoperative	5295	10%	Arthritis and Intervertebral Disc Syndrome	5237	10%	20150727	
Status-Post L4 Laminectomy	Cat II					
Chronic Leg Pain Postoperative		Left Lower Extremity Radiculopathy	8521	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Chronic Back Pain Postoperative.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) began in 2000 after heavy lifting.  In October 2002 the CI reported LBP that radiated to the posterior thighs and urinary frequency with one episode of urinary incontinence.  On examination the CI had a positive straight leg raise test bilaterally, but was neurologically intact. Diagnostic imaging (MRI) on 5 January 2001 revealed degenerative disc disease and a congenitally small spinal canal resulting in moderate spinal stenosis at L4-5.  The CI underwent surgery for decompression and diskectomy on 12 February 2001.  Following the surgery the CI had resolution of his urinary symptoms, but continued to have LBP with left lower extremity (LE) pain.  At the final neurosurgery visit in record on 11 September 2001 the exam showed full LE strength and normal sensation.  The CI was able to flex “halfway to his toes.”  A repeat MRI showed post-operative changes with some scarring and “some relative” stenosis at the L4-5 level.  

The 13 October 2001 MEB NARSUM examination, 5 months prior to separation, (performed by the attending neurosurgeon) noted complaints of LBP and left LE pain, aggravated by activity.  
Physical examination showed a well healed, slightly tender surgical incision.  The CI had a normal gait, including heel and toe and the exam was otherwise the same as the neurosurgery exam a month earlier noted above.  

At the 27 July 2015 VA Compensation and Pension (C&P) evaluation, performed more than 13 years after separation, was too remote to have probative value for the panel’s rating recommendation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5295 (lumbosacral strain).  The VA rated the back condition 10%, coded 5237 (also lumbosacral strain), based on the VA examination more than 13 years after separation.  In accordance with DoDI 6040.44, the panel is required to recommend a rating IAW the VASRD in effect at the time of separation.  The panel must correlate the above clinical data with the 2002 rating schedule; applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293 (intervertebral disc syndrome); and 5295 (lumbosacral strain).  The PEB assigned a 10% rating under 5295 and the panel therefore reviewed to see if a higher rating was supported under either 5292 or 5293.  The neurosurgeon described the CI’s back ROM as “bends halfway to the toes.”  This description is consistent with fingers below the knee to mid-shin level and the panel determined that this was insufficient limitation of motion to support recommending a higher rating.  The CI did have intervertebral disc syndrome.  However, while there was daily pain with activity limitations, there was no evidence of “recurring attacks” which were disruptive to daily activities, required urgent medical attention, or resulted in work loss.  The panel therefore could not recommend a rating higher than 10% under the 5293 code.  The PEB also adjudicated “status post L4 laminectomy with a left L4-5 diskectomy” and “chronic leg pain postoperative” as Category II conditions, which are conditions that contribute to the unfitting condition.  In this case both Category II conditions reflect the same disability as the unfitting Category I condition and cannot be rated separately IAW VASRD §4.14 (avoidance of pyramiding).  There was therefore no higher rating available with any applicable VASRD code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic back pain condition.  

BOARD FINDINGS:  In the matter of the chronic back pain postoperative condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150603, 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 26 Apr 17

      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:

		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USN 
		- XXXXXXXXXXXXXXXXXXXXX, former USN 
		- XXXXXXXXXXXXXXXXXXXXX, former USMC 
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXXX, former USMC

						 XXXXXXXXXXXXXXXXXXXXX
	     				  	Assistant General Counsel
						                				(Manpower & Reserve Affairs)