RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX  	CASE:  PD-2016-01284
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20040915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Communication Security Equipment Technician, medically separated for “status post L3-L4 endoscopic transforaminal lumbar interbody fusion [TLIF]” with a disability rating of 10%. 

CI CONTENTION:  “The VA rated me at 30% on my discharge and later up to 70% for the same 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 – 20040709	VARD - 20050323	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post L3-L4 TLIF	5241	10%	Chronic Low Back Pain [Surgical Residuals]	5241	20%	20050203	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Status Post L3-L4 Endoscopic TLIF.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI injured his back in 2001 with symptoms aggravated by a motor vehicular injury in February 2002.  An April 2002 MRI showed disc disease with mild L3/4 and L4/5 protrusions and a large bulge with left neural impingement at L5/S1.  He underwent a left L5/S1 microdiscectomy in July 2002 which was initially successful, and he was determined to be fit for duty in March 2003.  Symptoms reemerged a few months later, however, with positive discogram findings at L3/4.  On 25 November 2004, 10 months before separation, he underwent an L3/4 endoscopic TLIF.  Despite some improvement, he was unable to resume full duties.  A review of STR clinical entries provided no significantly probative range of motion (ROM) evidence.  While earlier entries noted non-specific ROM limitation, there were no measurements from the interval after the TLIF intervention.  One entry documented abnormal gait shortly before the TLIF procedure, but there was no further comment post-surgery, or any documentation of abnormal contour or incapacitating episodes. 

The 21 April 2004 MEB NARSUM examination, 5 months prior to separation, noted that the CI “reports tolerable low back pain [and] has been out of brace.”  Specified functional limitations included lifting over 50 pounds, load bearing, and physical training at “own pace.”  The physical examination did not comment on gait or spinal contour, but recorded “decreased [ROM] in flexion of the lumbar spine mostly” and normal neurological findings.  The PEB subsequently requested formal ROM measurements; but, an addendum to the NARSUM of 9 June 2004 replied that the fusion was still too incomplete to risk ROM measurements, and indicated that the CI was still in a brace (conflicting with NARSUM history).

At the 3 February 2005 VA Compensation and Pension (C&P) evaluation, 5 months after separation, the CI reported “residual” back pain with daily “incapacitating” flares lasting 5-10 minutes.  The only documented triggers for the latter were sneezing and “certain movements, like twisting.”  Additional functional limitations were not documented.  The physical examination recorded “some tenderness” and normal neurological findings without comment regarding gait, spasm or spinal contour.  Measured ROM was flexion to 60 degrees (normal 90) and a combined ROM of 170 degrees (normal 240), with painful motion.  Of note, the VA file documented abnormal gait in the period following separation, but normal gait in later entries.    

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the lumbar condition 10%, coded 5241 (spinal fusion), without comment regarding the rationale.  The VA rated chronic low back pain 20%, also coded 5241, based on the C&P examination, citing applicable VASRD §4.71a criterion of “forward flexion…greater than 30 degrees but not greater than 60 degrees.”  Panel members noted that there was no ROM evidence from the service that was compliant with VASRD §4.46 (accurate measurement), and agreed that the goniometric C&P ROM measurements carried the determinant probative value in this case; additionally the C&P examination was temporally proximate to separation and had allowed sufficient time for full surgical recovery.  The panel agreed that flexion criterion for a 20% rating were met and that reasonable doubt also favored concession of the 20% criterion for abnormal gait, suggested by the service evidence and corroborated by VA treatment records.  There was no evidence of incapacitating episodes that would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 20% rating for the lumbar spine condition under code 5241.

BOARD FINDINGS:  In the matter of the lumbar spine condition, the panel recommends a disability rating of 20%, coded 5241 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 as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Status Post L3-L4 Endoscopic Transforaminal Lumbar Interbody Fusion	5241	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs)
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 18 May 18 ICO XXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 07 Jun 18 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 05 Jun 18 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 13 May 18 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 18 May 18 ICO XXXXXXXXXXXXXXXXXX

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

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

     b. XXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 percent) effective date of discharge.  

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

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

     e. XXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent 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 actions are complete.