RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00241
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20021115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Mortarman, medically separated for “T6-7 herniated nucleus pulposus” with a disability rating of 10%.  

CI CONTENTION:  Review of all conditions requested.  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 - 20020904	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
T6-7 Herniated Nucleus Pulposus	5299-5295	10%	No VA Exam in Evidence	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

T6-T7 Herniated Nucleus Pulposus (HNP).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the HNP back condition began in April 2000 upon developing acute back pain after running.  Radiographic imaging in March and May 2001 (MRI and CT myelogram, respectively) documented a herniated disc at the T6-T7 vertebral level with no spinal cord or peripheral nerve impingement.  At a 25 April 2001 neurosurgery visit, 7 months prior to separation, physical examination showed “moderate distress” on movement, “slightly antalgic” gait, full range of motion (ROM) with “marked tenderness” on movement of the thoracic spine, and point tenderness at the T7 vertebral level.  

The 15 May 2002 MEB NARSUM examination, 6 months prior to separation, noted complaints of daily mid thoracic pain that radiated bilaterally to the thorax with numbness and tingling of the bilateral heels and toes.  Physical examination showed a slightly antalgic gait, marked tenderness at T7, and full ROM with pain.  Strength, sensation and reflexes were normal.  At an emergency room visit the next day, the CI reported acute worsening after working all day.  The physical examination showed ambulation with a steady gait, thoracic tenderness, spasm, and no radiation on nerve tension testing.  During the June 2002 MEB examination (recorded on DD Form 2697), the CI reported back pain that resulted in an inability to do his job.  The physical examination was not in evidence.  At a 25 July 2001 primary care visit, 4 months prior to separation, physical examination showed “mild distress” with “guarding pain by moving slowly.”  At a 20 August 2001 primary care visit, 3 months prior to separation, physical examination showed a normal gait and heel and toe walk, and no difficulties removing clothing.  There was tenderness of the mid upper back without spasms.  Deep knee squat, flexion to the toes, and movement into the fetal position elicited pain.  There was no evidence of listing, deformity, or step off.  There was no VA examination in evidence proximate to separation.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated 10% for the T6-T7 HNP condition, analogously coded as 5299-5295 (lumbosacral strain).  At the time of separation in November 2002, the 2003 standards applied and ratings based on ROM impairment were subject to the rater’s opinion regarding degree of severity; whereas, the current standards specify rating thresholds in degrees of ROM impairment.  

The panel first considered the evidence for coding under 5291 (spine, limitation of motion, dorsal) and 5295 (lumbosacral strain).  The April 2001 neurosurgery and May 2001 NARSUM examinations documented full ROM, while the August 2001 primary care visit documented only pain with flexion to the toes.  Therefore, there was no evidence of ‘moderate’ or ‘severe’ limitation of motion of the dorsal spine in support of a higher rating under these codes.  There was no evidence of muscle spasm on extreme forward bending or loss of lateral spine motion in the standing position for a 20% rating under those standards; and no evidence of listing of the whole spine to the opposite side, nor a positive Goldthwaite sign, marked limitation of forward bending, or narrowing/irregularity of joint space, with abnormal mobility on forced motion in support of a rating higher than that adjudicated by the PEB.  The panel next considered code 5293 for intervertebral disc syndrome which requires quantification of incapacitating episodes however this information was not in evidence for the panel’s review.  There was no mention of any missed work days or bed rest, only the inability to perform his full MOS.  There was no evidence for strength or sensory deficits, or bladder or bowel incontinence or other evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  

None of these coding options afforded a greater than 10% rating advantage to the CI.  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 T6-T7 HNP condition.  

BOARD FINDINGS:  In the matter of the T6-T7 HNP condition, 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 20160422, 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 USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC

		
							XXXXXXXXXXXXXXXXXXX
	     				Principal Deputy, Assistant 
						Secretary of the Navy
						(Manpower and Reserve Affairs)
						Performing the Duties of the 
						Assistant Secretary of the Navy
						              (Manpower and Reserve Affairs)