RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-01753
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, Anti-Tank/Assault Guided Missile (Tow Gunner), medically separated for “multiple level of degenerative disk” with a disability rating of 10%.

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 - 20040614	VARD - 20041221	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Multiple Level of Degenerative Disk	5243	10%	Lumbosacral Strain with Bulging Disk L3-L4	5243	20%	20040909	
History of Herniated Nucleus Pulposus	Cat II					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Multiple Level of Degenerative Disk.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in February 2003 after carrying a 50-pound pack in Kuwait.  A lumbar spine MRI in December 2003 revealed an extruded disk fragment at L3-L4 and right lateral extradural defect on the spinal sac and partial impingement upon the exiting nerve root.  A lumbar spine X-ray in January 2004 showed mild Grade I L1 on L2 retrolisthesis, but otherwise a normal lumbosacral spine; surgery was not indicated.  
The 7 January 2004 orthopedic urgent care examination, 7 months prior to separation, noted CI complaints of right lower back and lower extremity pain.  Physical examination showed tenderness, and straight leg raise testing for radiculopathy was negative.  Strength, reflex and sensory examinations were intact.  During the 26 April 2004 MEB NARSUM examination, 4 months before separation, the CI reported chronic non-radiating right buttock pain and a multiple level, symptomatic, degenerating disk diagnosis.  Physical examination showed a normal gait, and the ability to heel, toe and tandem walk.  Lower extremity motor strength was 5/5, and bilateral deep tendon reflexes were symmetric at the “toe” and Achilles.  Back flexion and extension were “within normal limits” with some discomfort throughout (painful motion).  

At the 9 September 2004 VA Compensation and Pension (C&P) examination, less than 1 month after separation, the CI reported back pain and flare-ups, with pain extending to the right leg after physical activities.  Physical examination showed a normal gait and posture, no spinal muscle spasm, and bilateral muscle strength against gravity and force to be equal and good.  There was no evidence of radiculopathy or bilateral lower extremity muscle loss.  Repetitive lumbar spine flexion was 50 degrees (normal 90) with a combined ROM of 170 degrees (normal 240), and painful, limited motion.  On September 2004, X-rays showed normal vertebral bodies, intervertebral disk spaces, neural arches and processes with no evidence of compression fracture or spondylolisthesis.  A CT scan on the same day revealed posterior disk herniation impinging on the thecal sac on the right ventral plane at L3-4; nerve roots and facets were unremarkable.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5243 (intervertebral disk syndrome (IVDS)).  The Navy PEB also listed “history of herniated nucleus pulpous” as a related Category II condition (contributes to the primary unfitting condition but was not separately ratable).  The VA rated the low back condition 20%, also coded 5243, based on the C&P examination, citing limitation of flexion.  Members first noted there was no objective evidence of a radiculopathy from the herniated nucleus pulpous condition with functional impairments (such as weakness) or significant interference with satisfactory duty performance at separation, and thus agreed that the condition was properly subsumed under the overall rating for the low back condition IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited). The panel majority 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 C&P examination most proximate to separation.  The MEB NARSUM ROM examination was not quantified and had less probative value.  There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula.  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 low back condition, coded 5243.

BOARD FINDINGS:  In the matter of the degenerative disk condition, the panel majority recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  The single voter for dissent recommends no change and did not elect to submit a minority opinion.  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	
Multiple Level of Degenerative Disk	5243	20%	

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve A£fairs) COMMANDER, NAVY PERSONNEL COMMAND
Subj:		PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS Ref:	(a) DoDI 6040.44
(b)	PDBR ltr dtd 10 Oct 18 ICO XXXXXXXXXX
(c)	
l.	Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (k) 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 actions are complete.