RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00071
BRANCH OF SERVICE:  marine corps 	SEPARATION DATE:  20020930

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

CI CONTENTION:  The CI contends that he has permanent nerve damage and should have been evaluated by a neurosurgeon.  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 - 20020528	VARD - 20030127	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5293	20%	Lumbar Strain	5295	10%*	20020708	
Degenerative Disc Disease at Multiple Levels	Cat II					
Lumbar Spondylosis	Cat II					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%*	
*Code 5295 was changed to code 5243 and retroactively to a 20% back rating (combined 30%) following the 2008 Court of Veterans’ Appeals decision.  

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in August 1999 without injury or trauma.  Magnetic resonance imaging (MRI) showed an annular tear at two levels in the lumbar spine (L4-5 and L5-S1).  The CI had back pain and left leg pain that was not responsive to conservative therapy or limited duty.  

The 29 March 2002 MEB NARSUM examination, 6 months prior to separation, noted complaints of 8/10 back pain (80%) and left leg pain (20%) increasing to 10/10 on “bad days” with no weakness.  Physical examination showed a normal gait with tenderness of the paraspinal muscles.  Lower extremities had normal strength and reflexes, and the CI was able to heel and toe walk without difficulty.  There was pain limited range of motion (ROM) in all planes (flexion to 75%, extension to 50%, and lateral flexion and rotation to 100% of normal).  X-rays were normal.  The 9 April 2002 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI documented full ROM without difficulty.  X-rays were normal.  

At the 8 July 2002 VA Compensation and Pension (C&P) joints/spine evaluation, 3 months before separation, the CI reported daily back pain with stiffness, fatigability, and lack of endurance.  Physical examination showed normal ROM (flexion of 90 degrees, other axis of 30 degrees each) “without any difficulty” or decrease following repetitive motion.  The CI was unable to squat per the general C&P evaluator.  X-rays were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  

The PEB rated the back condition 20%, coded 5293 (intervertebral disc syndrome - IVDS), with likely application of the VASRD criteria in effect prior to the 22 September 2002 VASRD revision of code 5293 (PEB prior to that date, but separation after that date).  The panel also notes that the PEB listed “degenerative disc disease at multiple levels” and “lumbar spondylosis” as category II conditions (conditions that contribute to the unfitting condition).  The Navy PEB’s Category II diagnoses are intrinsic to the rated condition and separate ratings cannot be supported without pyramiding (VASRD §4.14); thus, it they are appropriately subsumed under the same spine rating.  The VA rated the back condition 10%, coded 5295, (lumbosacral strain), based on the C&P examination 3 months before separation, citing medication requirement for lumbosacral pain; with a retroactive change, following formal appeal, to a 20% rating coded 5243 (intervertebral disc syndrome; from the VASRD after September 2003).  

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 (after the 22 September 2002 VASRD revision), which differ significantly from the current §4.71a general rating formula for the spine.  The Board 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 22 September 2002 VASRD revision was specific to code 5293, and changed from IVDS symptoms compatible with sciatic neuropathy to the current VASRD 5293 criteria based on incapacitating episodes.  There were no periods of incapacitation for rating under code 5293.  There was no limitation of motion at the C&P examination and limited ROM at the NARSUM was no greater than “moderate” (20%) under code 5292 (limitation of lumbar spine motion).  There was no vertebral body fracture or deformity (code 5285) and no severe listing, loss of lateral motion, or abnormal spine motion for any rating under code 5295 (lumbosacral strain) higher than the 20% awarded by the PEB.  Ratings separating the CI’s limited or painful ROM from his IVDS radiculitis under peripheral nerve rating (if supported as a separately unfitting condition) would also not provide any rating higher than the PEB’s 20% rating.  

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 back 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 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 20160705, 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

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

		
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