RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2016-00874
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20040815

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

CI CONTENTION:  Review all conditions.  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040421	VARD - 20050418	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	20%	Herniated Disc L5-S1	5299-5243	100%	20050127	
Herniated L5-S1 Paracentral Disc, Right	Cat II					
Degenerative Disc Disease	Cat II					
Bilateral Neural Foramen Stenosis	Cat II					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in April 2003 after several incidents within 1-2 days which including falling off the top of a military truck, lifting a heavy tire, and driving 140 miles.  An MRI on 10 April 2003 revealed an L5-S1 small right paracentral disk protrusion that did not contact the S1 nerve root.  There was no significant neuroforaminal narrowing.  At the 16 April 2003 orthopedic clinic examination the CI reported low back pain with intermittent right lower extremity pain, without numbness, tingling, or weakness.  Gait was “OK.”  Forward flexion was decreased and he was able to flex reaching his fingers to the knees (approximately 45 to 60 degrees).  Upon follow-up on 3 July the CI reported pain with forward flexion and coming back to neutral with some numbness down the right leg that lasted only seconds.  At an orthopedic appointment on 2 October 2003 he reported achy low back pain with occasional radiation of pain down the right leg.  He was able to forward flex to the knees.  There was full rotation to the right and left, but left rotation was painful.  Straight leg raise testing to elicit radicular symptoms was positive on the right and negative on the left.  Lower extremity strength was normal and the CI was able to rise on his heels bilaterally.  

At the 3 October 2003 MEB NARSUM examination, 10 months prior to separation, the CI reported improvement, but still had recurrent episodes of low back pain with strenuous exercise and intermittent radiating pain down the right leg.  The examiner noted there had been no specific treatment and no physical therapy (PT) to date.  Physical examination was identical to the orthopedic examination the previous day.  A trial of PT was recommended.  

The CI was first seen by PT on 2 December 2003.  On examination there was tenderness and noted discomfort with forward flexion, extension, and left and right side bends; however no actual measurements were recorded.  On 13 January 2004 the CI’s posture was good and gait was within normal limits.  A family practice examination dated 30 March 2004 noted continued back pain with limited ROM.  Forward flexion was limited by pain and tenderness was present in the right paraspinal area.  

An MRI on 2 April 2004 showed degenerative disc disease at L4-S1.  At L5-S1 a right paracentral herniated nucleus pulposus abutted and displaced the right S1 nerve root.  A posterolateral disc bulge and spondylosis in combination with facet arthropathy produced bilateral neuroforaminal (area through which the spinal nerves exit) narrowing.  A microdiscectomy was performed on 19 May 2004.  

At the 27 January 2005 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported he underwent spinal surgery but had minimal relief with gradual return of significant pain, numbness, and tingling radiating down the right leg.  On physical examination the VA examiner noted the CI was “cautious with minimal movement.”  The CI’s posture was slightly bent to the right and 10 degrees forward.  He limped favoring the right leg.  There were no palpable muscle spasms.  ROM showed forward flexion of the spine to 20 degrees with significant pain at 10 degrees, and combined ROM of 40 degrees (normal 240).  Strength and reflexes were normal but sensation was decreased in the lateral aspect of the right leg.  A nursing note on the day of the C&P examination indicated the CI reported acute back pain of four hours duration and that he had driven a distance to come to the appointment.  

A VA primary care visit on the same day as the VA C&P examination noted the CI was uncomfortable standing and had decreased ROM with discomfort.  A primary care examination on 1 February 2005 indicated the CI had anti-inflammatory, muscle relaxant, and pain medications for his back and that he used narcotic pain medications intermittently as needed.  The physical examination noted the CI was in no acute distress.  At a PT visit on 24 February 2005, the CI reported that he felt better with back exercise and that his back pain had decreased to a level rated 4/10.  The therapist documented the CI was able to demonstrate exercises “well without c/o [complaint of] pain today or any limitations.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5237 (lumbar spine strain), citing the CI’s testimony at the formal PEB.  The PEB listed “herniated L5-S1 paracentral disc, right,” “degenerative disc disease,” and “bilateral neural foramen stenosis” as related diagnoses (Category II) contributing to the disability in this case.  The Category II diagnoses were not separate conditions which could be reasonably justified as separately unfitting; nor would separate ratings be achievable without violation of VASRD §4.14 (avoidance of pyramiding).  The VA rated the back condition utilizing a pre-stabilization rating of 100%, analogously coded 5299-5243 (intervertebral disc syndrome) based on the C&P examination, citing an unstabilized condition with severe disability, with gainful employment not being feasible or advisable.  On 1 April 2008 the VA decreased the rating to 40%.  

Numerous service examinations demonstrated the CI was able to flex and reach fingers to the knees.  Although not goniometric, these descriptions were sufficiently specific to conclude the limitation of motion did not approach the 30 degrees of limitation required to support a 40% rating, but was likely less than or equal to 60 degrees to support a 20% rating.  The CI underwent spinal surgery after his service disability rating was determined but prior to release from active duty.  The only available ROM measurements after surgery were documented at the VA examination.  Based on the evidence above it appears the CI was having acute back pain after driving on the day of the C&P examination and within days was doing better and a few weeks later reported improvement with back exercises which he could perform without pain or limitations.  Based on the total evidence, the panel agreed that a 20% rating, but no higher, was supported for limitation of flexion (greater than 30 degrees but not greater than 60 degrees).  There was evidence of intervertebral disc syndrome which seemed to have worsened sometime after the CI’s surgery.  However, there was no evidence of incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  After due deliberation, considering all 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 back condition. 

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration. Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

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: