RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01426
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20081230

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

CI CONTENTION:  “I was put out for lower lumbar disk disease and it just keeps getting worse.  Also I was diagnosed with anxiety disorder in the Marine Corps.  But nothing about my mental health was on my med board.”  The CI also requested all conditions be reviewed.  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 - 20081016	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	No VA Examination in Evidence 	
Lumbar Disc Bulges	Cat II		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s LBP condition began in February 2008 after moving items in the barracks.  Magnetic resonance imaging (MRI) studies on 11 March 2008 showed disc desiccation at the L4-5 and L5-S1 levels with normal alignment.  The spinal arthropathy was worst at the L4-5 level, with a central protrusion causing moderate impression against the anterior thecal canal, resulting in an approximately 25% narrowing of the central canal and mild narrowing of the lateral recess and neural foramina.  At the time of the 18 April 2008 appointment with his battalion surgeon, it was reported he had mildly reduced range of motion (ROM), although specific measurements were not provided.  The CI was treated with medication, physical therapy, and epidural steroid injections but his pain persisted.  He was not a candidate for surgical intervention, and he was unable to return to full duty.  

The 19 August 2008 MEB NARSUM examination, 4 months prior to separation, noted complaints of LBP averaging 6-7/10, aggravated by bending or sitting.  Physical examination showed mild, superficial tenderness bilaterally over the L4-S1 region.  Gait and stance were normal and the examiner was silent regarding spasm or guarding.  ROM measurements were not provided, but the examiner noted the CI had pain with flexion occurring at approximately 35 degrees and pain with extension at approximately 5 degrees.  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5237 (lumbosacral strain).  The PEB also listed lumbar disc bulges as a related Category II condition (contributed to the primary unfitting condition but was not separately ratable).  The impairment from the lumbar disc bulges was properly subsumed under the overall rating for the chronic LBP IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  

The panel agreed a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees) as reported on the 18 April appointment and implied on the NARSUM.  A 10% rating would also be justified based on painful motion (4.59) or tenderness, both reported on the NARSUM.  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.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the LBP condition.  

BOARD FINDINGS:  In the matter of the LBP 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 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 20150618, w/atchs
Exhibit B.  Service 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

      In accordance with reference (a), I have reviewed the cases listed below and 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:

		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC

		
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	     				     Acting