RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01851
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20070228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Reserve E3, Automotive Mechanic, medically separated for “back pain,” with a disability rating of 20%.

CI CONTENTION:  The CI requested a review of all 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 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 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 determinations 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 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 – 12 January 2007	VARD - 20071009	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain	5237	20%	Lumbago	5299-5237	10%	STR	
Post-traumatic Stress Disorder (PTSD)	Cat III	PTSD	9411	50%	20070405	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered an atraumatic onset of back pain in December 2005 (15 months before separation) while deployed to Iraq.  The pain persisted on re-deployment and there was sporadic mention of radicular pain, but all STR entries indicated the absence of any associated sensory or motor symptoms (the NARSUM mentioned an episode of left leg numbness, since resolved).  Imaging findings for the spine were normal (X-ray, MRI, and bone scan).  There were multiple STR entries that documented normal neurological findings and none to the contrary.  There was STR documentation of grossly normal or non-specifically limited range of motion (ROM), and no STR entries that indicated significantly limited ROM.  There was STR documentation of a normal gait and normal spinal contour with no contrary entries, and there was no STR documentation of incapacitating episodes.  Surgery was not indicated and conservative treatment did not result in sufficient improvement to allow unrestricted duty.  The MEB forwarded “backache, unspecified” for PEB adjudication.  

The NARSUM examination on 29 September 2006 (6 months before separation) documented persistent non-specific back pain with “no radiation down his legs at this time” that prohibited running and lifting over 25 pounds.  The physical examination recorded a normal gait and spinal contour, tenderness, spasm, and normal neurological findings (5/5 strength, intact sensation, symmetric reflexes).  There were no goniometric ROM measurements in evidence from the service, but the NARSUM documented an ability to flex with the hands (not fingertips) reaching the knees (approximately 55-65 degrees, normal 90) and bilateral flexion and rotation to 45 degrees (normal 30).  There was no VA Compensation and Pension (C&P) general examination and there was no temporally probative VA evidence available other than some VA treatment notes soon after separation.  The latter corroborated a normal gait and neurological findings; and, although not commenting directly on ROM, did not indicate the presence of significant ROM limitation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating under code 5237 (lumbosacral strain) was aligned with VASRD §4.71a criteria for the STR evidence, although goniometric ROM measurements IAW VASRD §4.46 (accurate measurement) would have been preferable.  The VA rating decision referenced VA treatment notes (possibly some not in evidence) in addition to the STR, and cited tenderness and spasm in support of its 10% rating analogous to code 5237.  There was no ROM evidence supporting a rating higher than 20%, and no documentation of incapacitating episodes or diagnosis of intervertebral disc syndrome that 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 that there was insufficient cause to recommend a change in the PEB adjudication for the lumbosacral strain condition.  

Contended PEB Conditions: PTSD.  An STR entry in May 2006 made passing note of the CI’s concern about feelings of aggression.  There were no mental health (MH) treatment notes in the available STR, although it is quite possible that they were sequestered for confidentiality and not reincorporated.  The NARSUM documented that the CI went through MH therapy for PTSD and “states he feels much more confident that he can control himself now, and symptoms have improved.”  The limited duty board was for the spine condition only, and the commander’s non-medical assessment (NMA) specified that only physical limitations were present.  The NMA made no note of PTSD or any MH symptoms, and documented that the CI was performing well in an administrative capacity.  There was no MH diagnosis listed on the MEB submission, and there was no explanation in the available STR for the PEB’s inclusion of PTSD.  The CI presented for a VA mental disorders C&P examination on 5 April 2007 (5 weeks after separation) and endorsed symptoms that met all of the diagnostic criteria for PTSD, although he was employed (retail security and relations) and embarking on college.  The VA conferred a 50% rating for PTSD based on this examination.

The panel’s main charge was to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The panel’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Although the CI may have manifested some MH symptoms at separation, there was no performance-based evidence for psychiatric impairment severe enough to preclude retention.  After due deliberation in consideration of the preponderance of the evidence, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for PTSD; thus, it was not eligible for rating.

BOARD FINDINGS:  In the matter of the lumbar condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended PTSD condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150707, 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)