RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2016-00881
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 an active duty E3, Artilleryman, medically separated for “degenerative disk disease (DDD)” with a disability rating of 10%.

CI CONTENTION:  The service-connected disability interferes with daily activities and employment.  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 - 20040628	VARD - 20041117	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DDD)	5237	10%	L4-L5 Lumbar Spine DDD	5242	20%	20040610	
Mechanical Low Back Pain without Radiculopathy	Cat II	DDD, Mechanical Low Back Pain	Voc Rehab		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

DDD.   According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s lower back pain (LBP) began in July 2002 without specific trauma.  An MRI in September 2002 showed facet joint arthropathy and DDD with an eccentric disc bulge to the right at L5-S1 that did not compress the exiting nerves.  At an orthopedic examination on 28 October 2003, the CI reported LBP without radicular symptoms.  Physical examination showed diffuse tenderness of the right side of the low back with painful flexion and extension.  The orthopedic diagnosis was mechanical back pain without radiculopathy.  There was no surgical indication.  The CI was treated with facet joint injections with incomplete relief of the pain.  

At the 5 March 2004 MEB NARSUM examination, 7 months prior to separation, the CI reported LBP.  Physical examination revealed spinal tenderness.  Straight leg raise testing (SLR) for radiculopathy was negative.  Low back range of motion (ROM) was within normal limits but “somewhat reduced” due to subjective pain.  

At the 10 June 2004 VA Compensation and Pension (C&P) examination, 2 months prior to separation, the CI reported lumbar spine pain that radiated into both buttocks.  The CI also reported multiple physician-directed bedrest and that he was unable to work for many weeks within the past year.  Physical examination showed a normal gait and posture.  Lower extremity strength, sensation and reflexes were normal and SLR was positive bilaterally.  There was lumbar spinal tenderness and muscle spasm.  Thoracolumbar flexion was 60 degrees and combined ROM was 145 degrees, with painful motion, and there was no additional loss of ROM with repetition.  Lumbar spine X-rays showed mild DDD.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated DDD as an unfitting Category I condition, rated 10%, coded 5237.  The PEB also listed an associated diagnosis of mechanical LBP without radiculopathy as a related Category II condition, one which contributes to the unfitting condition but is not separately ratable.  The DDD and mechanical back pain are the underlying diagnoses that caused the CI’s back pain and limited ROM and they are not separate conditions for which a rating may be assigned (§4.14 avoidance of pyramiding).  The VA rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination citing limitation of flexion.

The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), as recorded on the VA ROM examination most proximate to separation.  This was also reasonably corroborated by the MEB NARSUM ROM examination.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  Although the CI reported multiple incapacitating episodes in the past year requiring physician-prescribed bed rest during the VA examination, there was no documentation of incapacitating episodes in the STR in the year prior to separation.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition, coded 5237.

BOARD FINDINGS:  In the matter of the degenerative disk disease, the panel recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Degenerative Disk Disease	5237	20%	

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref:	(a)	DoDI	6040.44		
	(f)	PDBR	ltr dtd	10	Oct	18	ICO	XXXXXXXXXX		

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

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

3.	Please take action to implement these decisions and provide notification to the above individuals once those are complete.