RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02302
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20040831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Tactical Network Specialist, medically separated  for “low back pain” with a disability rating of 10%.

CI CONTENTION:  “VA reduced my rating to 0%.  I am entitled to 10% disability based on my rating assigned at time of discharge.”  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 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 - 20040702	VARD - 20100831	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain…	5237	10%	Residuals of Herniated Disc L4-L5 and L5-S1	5243	0%	20100809	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Low Back Pain due to L5-S1 Disc Protrusion.    According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain had been present for one year prior to an initial evaluation for this condition, which occurred in October 2003.  The CI developed his condition over time, with no discreet event attributable to causing the low back pain.  An MRI in October 2003 showed lateral disc protrusion at the L5 vertebrae level and mild disc bulging at the L4-L5 level.  Despite treatment, the low back pain condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for a MEB.  The 31 March 2004 MEB/Orthopedic NARSUM examination, 5 months prior to separation, noted complaints of tingling in the CI’s right foot and his legs would fall asleep.  His average pain level was 2/10 intensity, but the examiner recorded 5/10 at the time of the examination.  Physical examination showed a normal gait.  Heel walking did not elicit pain while toe walking increased the CI’s pain.  Sensation to light touch was intact except for a decrease on the right at L2, L3, L5 and S1.  Otherwise, the CI was neurovascularly intact.  Tenderness to palpation was noted along the thoracic and lumbar paraspinal musculature.  His forward flexion was 60° (90 normal), extension is 10° (30 normal), left lateral flexion is 15° (30 Normal), right lateral flexion 20° (30 normal), right lateral rotation is 30° (90 normal), and left lateral rotation is 30° (90 normal).  At the April 2004 MEB examination (recorded on SF 88 and 93), 4 months prior to separation, physical exam showed forward flexion range of motion (ROM) to 70 degrees (90 normal) with combined ROM of 180 degrees (normal 240).  The CI was neurovascularly intact.  At the 9 August 2010 VA Compensation and Pension (C&P) evaluation, performed 72 months after separation, the CI reported that he no longer experienced radicular pain previously associated with his low back condition, however he did experience tightness in the right buttocks which was associated with his back pain.  Physical exam showed measurements of 90 degrees forward flexion and 240 degrees combined ROM (both normal).  The examiner noted there was no pain on ROM testing and repetitive testing was negative for DeLuca factors.  The CI had tenderness along the paraspinal musculature.  No spasm was noted and the CI had a normal gait.  There were no reported incapacitating episodes.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain condition 10%, coded 5237 (lumbosacral strain).  The VA rated the low back pain condition 0% coded 5243 (intervertebral disc syndrome), based on the VA C&P examination 72 months after separation, citing a non-compensable rating based on the CI’s examination and record not meeting the minimal criteria for a compensable spine rating.  The panel majority agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the orthopedic/NARSUM examination.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the low back condition, coded 5237.  

BOARD FINDINGS:  In the matter of the low back pain condition, the panel majority recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent recommended no change and did not elect to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  The panel 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	
Low Back Pain	5237	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150829, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 31 Jul 17 XXXXXXXXXXXXXXXXXX

	(c) PDBR ltr dtd 06 Jul 17 XXXXXXXXXXXXXXXXXX
  
	(d) PDBR ltr dtd 31 Jul 17 XXXXXXXXXXXXXXXXXX

	(e) PDBR ltr dtd 31 Jul 17 XXXXXXXXXXXXXXXXXX

	(f) PDBR ltr dtd 07 Jul 17 XXXXXXXXXXXXXXXXXX

	(g) PDBR ltr dtd 02 Aug 17 XXXXXXXXXXXXXXXXXX

	(h) PDBR ltr dtd 06 Jul 17 XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (h) are approved.  The official records of the following individuals are to be corrected as follows:

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

     b. XXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 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 USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge. 

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

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

     g. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 percent) effective date of discharge.       
     
3.  Please take action to implement these decisions.

XXXXXXXXXXXXXXXXXX