RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01549
BRANCH OF SERVICE:  marine corps 	SEPARATION DATE:  20040815

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Aircraft Intermediate Level Structures Mechanic, medically separated for “L5-S1 HNP” with a disability rating of 10%.  

CI CONTENTION:  Both his back and shoulder were not properly diagnosed.  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 - 20040528	VARD - 20050103	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L5-S1 HNP	5243	10%	Herniated Nucleus Pulposus, L5-S1, Lumbar Spine	5243	40%	20041016	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

L5-S1 HNP (a back condition).  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s L5-S1 HNP [herniated nucleus pulposus (herniated disc)] condition began in September 2002 after performing physical training.  A 9 October 2002 MRI of the lumbar spine showed a broad right paracentral disc protrusion (bulge) at L5-S1 with no evidence of nerve compression.  On 17 March 2003, 17 months prior to separation, the orthopedic spine surgeon found full range of motion (ROM) of the lumbar spine with good alignment.  He opined the condition was non-operative.  There were multiple clinic visits in the record noting decreased ROM in flexion with the remainder of the ROM normal; however, none of them quantified the decreased flexion measurements.  During the 23 March 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported his lower back went numb when he overworked himself.  Physical examination showed “limited flexion” of the spine without recorded measurements.  

The 30 March 2004 MEB NARSUM examination, 5 months prior to separation, noted the CI’s back was no longer improving with physical therapy; he still had pain and he was unable to return to full duty.  Physical examination showed a normal gait.  There was no quantification of measurements during the examination with the examiner noting there was “…limited flexion in lumbar spine…”  The examiner was silent regarding spasm, tenderness, and spinal contour.  

At the 16 October 2004 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported he had low back pain but rarely had radicular symptoms.  Occasionally he had radiation to both buttocks and into the left leg.  His back pain was worse with bending or twisting and was worse in cold weather.  The CI stated that he had increased limitations with repetitive use but did not quantify those limitations.  He did not have any incapacitating flare-ups or episodes of bedrest.  His walking distance was about 1 mile and he was limited by knee and low back pain.  He did not miss work for any of the pain complaints.  Physical examination showed a normal gait.  There was tenderness in the thoracic and lumbar spine areas.  Flexion was to 45 degrees (normal 90) and combined ROM of 145 degrees (normal 240).  The examiner was silent regarding spasm and spinal contour.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the L5-S1 HNP condition 10%, coded 5243 (intervertebral disc syndrome).  The VA rated the L5-S1 HNP condition 40%, coded 5243, citing flexion of 45 degrees on the examination as consistent with a 20% evaluation with an additional 20% assigned under 38 C.F.R. 4.40 and 4.45 because of an additional functional impairment due to pain following repetitive motion of the spine.  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 reported on the VA examination.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the L5-S1 HNP condition, coded 5243.  

BOARD FINDINGS:  In the matter of the L5-S1 HNP condition, the panel recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

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

CONDITION	VASRD CODE	PERMANENT RATING	
L5-S1 HNP	5243	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161018, 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 11 Mar 18 ICO XXXXXXXXXXXXXXXXXX 
	 (c) PDBR ltr dtd 11 Mar 18 ICO XXXXXXXXXXXXXXXXXX 
	 (d) PDBR ltr dtd 12 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 11 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	 (f) PDBR ltr dtd 12 Mar 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 10 percent disability rating (increased from 0 percent) effective date of discharge.       

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

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

     d. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 50 percent rating (increased from 10 percent) effective date of discharge.  

     e. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.
 
2.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.

                                  	XXXXXXXXXXXXXXXXXX
                                  	Acting