RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01428
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20020831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Supply Administration Clerk, medically separated for “herniated nucleus pulposus [HNP] L4/L5, L5/S1 (with related annular tears L4/L5, L5/S1 and advanced degenerative joint disease [DJD] L4/L5, L5/S1), with a disability rating of 20%.

CI CONTENTION:  The CI contended for his back condition as well as multiple additional conditions.  The CI’s 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 - 20020611	VARD - 20020913	
Condition	Code	Rating	Condition	Code	Rating	Exam	
HNP L4/L5, L5/S1…	5293	20%	Residuals, Anterior and Posterolateral Body Fusion…	5003-5293	20%	20020711	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  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 noted that the 2002 Veteran Administration Schedule for Rating Disabilities (VASRD) standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004.  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).  

Herniated Nucleus Pulposus L4/L5, L5/S1 (with related Annular Tears L4/L5, L5/S1 and Advanced Degenerative Joint Disease L4/L5, L5/S1).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI reported that his back condition began in early 1999 while moving furniture up to a second floor apartment.  He was treated conservatively with medications, duty limitations, and referred to a chiropractor.  Subsequently, he ran into a car (it apparently stopped quickly) while running and was somersaulted over the hood in April 2000.  Initially he noted knee and hip pain, but later also had low back pain (LBP).  He was again treated conservatively, but had persistent pain.  An MRI on 15 September 2000 showed a herniated disc at L4-5 and L5-S1 with displacement of the right S1 nerve root.  These findings were confirmed on a CT discogram (dye injected into the disc to look for leakage) on 5 October 2000.  He was not thought to be a surgical candidate and then underwent thermal shrinkage of the disc (IDET) on 17 November 2000.  He was involved in another motor vehicle accident (MVA) as the restrained driver on 11 January 2001.  The full size truck was struck on the passenger side and was apparently “ok.”  There was no mention of back pain on the emergency room report, although it later was aggravated.  He was evaluated in neurosurgery on 1 March 2001 and a possible fusion discussed.  The risks and benefits were discussed.  He was advised to consider these and to stop smoking (smoking reduces the likelihood of a successful procedure).  He was reevaluated on 12 April 2001 and reported that he wished to proceed with surgery and that he had stopped smoking.  The CI was evaluated on 8 May 2001 for PEB as he had been on LIMDU for 6 months twice.  It was recommended that his case be forwarded to PEB, but this was apparently delayed pending surgery.  The surgery was initially scheduled for 16 July 2001, but delayed due to issues with the paperwork authorizing the procedure.  An anterior fusion of L4-S1 was then accomplished on 22 October 2001.  Following surgery, he had some left leg weakness, numbness and tingling of the left anterior thigh and buttock, and LBP.  The weakness was noted to have improved at a follow up on 5 November 2001.  

The MEB report was updated on 24 January 2002, 6 months prior to separation and 3 months after surgery.  It noted that he had recovered well from the surgery but had persistent LBP.  The separation history and physical (DD Forms 2807 and 2808) were completed in April 2002.  The CI reported the use of a cane for right leg nerve damage.  On examination, sensation and strength were reduced for the right leg.  

At the 11 July 2002 VA Compensation and Pension (C&P) evaluation, performed 7 weeks before separation, the CI reported that he was still having significant back pain and right leg weakness and numbness.  He also was having trouble doing any activity requiring bending since his back surgery.  On examination, he walked with a cane but was able to ambulate without the cane.  His gait was slow and purposeful.  He was able to heel-toe walk.  He was not able to squat or hop on one leg.  The scars were well healed.  The neurological and musculoskeletal examinations were normal (neither spasm nor atrophy was present).  Provocative testing for nerve root irritation was positive, but at the lower limit of normal.  Range of motion (ROM) maneuvers caused discomfort.  Flexion was reduced at 60 degrees and the combined ROM was reduced at 195 degrees (VA normal values are 90 and 240, respectively).  

X-rays on 11 July 2002 showed a narrowing of the L5/L5 and L5/S1 disc spaces with slight anterior spondylolisthesis (slippage on one vertebra over another) of L5 in relation to S1.  

The panel directed attention to its rating recommendation based on the above evidence.  The annular tears at L4/L5 and L5/S1 and advanced DJD L4/L5 and L5/S1 were related diagnoses which the PEB subsumed under the unfitting HNP condition.  The panel noted that the impairment from these diagnoses was not severable from that from the HNP condition (and surgery) and that the rating recommendation was for the total impairment from all back conditions.  The PEB rated the HNP L4/L5, L5/S1 condition at 20%, coded 5293 (intervertebral disc syndrome).  The VA also rated the low back pain condition at 20% coded 5003-5293 (degenerative arthritis/intervertebral disc syndrome), based on the VA C&P examination 7 weeks before separation, citing limitation of forward flexion.  The panel considered the evidence.  The code 5292, limitation of lumbar motion, supported a 20% rating for moderate limitation.  The code 5293 also supported a 20% rating for moderate recurring attacks.  The code 5295, lumbosacral strain, supported a 10% rating for painful motion but did not support a 20% rating in the absence of spasm.  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 low back pain condition

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There were no other conditions within the panel’s scope of review for consideration.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150614, 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: PHYSICIU. DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDAT IONS 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 :

-	XXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXX, former USMC
-XXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXX, former USMC

                        XXXXXXXXXXXXXXXXXX
                        Acting