RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01082
BRANCH OF SERVICE:  Marine CORPS	SEPARATION DATE:  20040715

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Aircraft Maintenance Support Mechanic, medically separated for “herniated nucleus pulposus L4-5 right” with a disability rating of 20%.

CI CONTENTION:  Review 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 - 20040120	VARD - 20040903	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Herniated Nucleus Pulposus L4-5 Right	5293	20%	HNP Lumbar Spine with Degenerative Changes and Radiculopathy	5243	60%	20040226	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60% 	

ANALYSIS SUMMARY:  

Herniated Nucleus Pulposus L4-5 Right.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back  condition began in mid-February 2003 after performing martial arts training.  The 22 May 2003 MRI indicated an L4 herniated disc with right L5 nerve root impingement.

At the 12 June 2003 neurosurgery examination, 13 months prior to separation, the CI complained of low back pain with left anterior thigh tingling and intermittent right calf pain.  Physical examination revealed intact bilateral lower extremity 5/5 strength and sensation.  Gait and reflexes were normal.  
At the 12 December 2003 MEB NARSUM examination in the orthopedic clinic, 7 months prior to separation, the CI complained of persistent low back pain (LBP) with intermittent right posterior thigh pain.  Pain was intensified by prolonged sitting and strenuous weight-bearing activity.  Physical examination revealed a mildly antalgic gait on the right, spinal tenderness, and no muscle spasm.  Range of motion (ROM) was fingertips to the ankles (approximate 90 degrees flexion) limited by pain.  Straight leg raise (SLR) testing for radiculopathy was positive.  Bilateral muscle strength and sensation were normal.

At the 26 February 2004 VA Compensation and Pension (C&P) evaluation, 5 months before separation, the CI reported LBP which radiated down the thighs and was exacerbated by physical activity.  The CI claimed his physician-recommended bed rest was for approximately 6 or 7 days out of the month and he lost about 1 month from work because of his back condition.  Physical examination revealed a normal posture and gait and no spinal tenderness, but muscle spasm was present.  Bilateral SLR was positive.  Neurologic testing was normal.  ROM was flexion to 60 degrees and combined ROM was 185 degrees; painful motion was present.  Repetitive motion testing did not reduce ROM.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 20%, coded 5293 (intervertebral disc syndrome (IVDS) IAW VASRD 2003).  The VA rated the LBP condition 60%, coded 5243 (which is IVDS IAW VASRD 2004), based on the C&P examination 5 months before separation, citing objective evidence of painful motion of the thoracolumbar spine with limited motion in forward flexion (60 degrees), combined ROM of 185 degrees, paraspinal muscle spasm, radiation of pain to the buttock, X-ray findings of degenerative changes, and physician-recommended bed rest for approximately 6 or 7 days out of the month, and losing about 1 month from work in the past year, and having difficulty functioning without medication.  

In accordance with DoDI 6040.44, the panel is required to recommend a rating IAW the VASRD in effect at the time of separation, which in this case was the 2004 VASRD which uses objective ROM criteria for the spine.  With this consideration, the panel agreed there was no evidence of limitation of flexion of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine to support the next higher 40% rating.  Nor was there STR evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  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 low back condition.

BOARD FINDINGS: In the matter of the herniated nucleus pulposus L4-5 right 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.  Therefore, the panel recommends 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 20160924, 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:

		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC

		
	XXXXXXXXXXXXXXXXXXX  					
         Acting