RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	 	CASE:  PD-2012-00772
BRANCH OF SERVICE:  MARINE CORPS		BOARD DATE:  20130321
SEPARATION DATE:  20010915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty Lance Corporal/E-3 (2881/Cryptographic Repairman) medically separated for a herniated disk.  The CI had an onset of mid-thoracic back pain during a training exercise in 1999.  In May 2000, a magnetic resonance imaging (MRI) of his thoracic spine showed a right para-central disk bulge at T9-10.  He was not a surgical candidate and his condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “thoracic back pain and herniated disk…” to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The PEB adjudicated the herniated disk condition as unfitting, rated 20%.  The thoracic back pain condition was determined to be Category II (a condition that contributed to the unfitting condition).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Upon review of the documents in my file, XXXXXXXXXXXXXXXXXXXX stated on my Physical Evaluation Board Proceedings, under additional findings clearly stated that my disability is permanent.  It is also documented clearly in my medical records that is included in my VA File and copies submitted with this request that my condition is continually getting worse along with my quality of life is declining.  The initial findings only listed as 20% lumbar for one injury.  A secondary review listed a second condition at 10% (thoracic). In 2011, Rating decision only provided increase for 1 injury (lumbar) but did not review for thoracic injury (#2).”

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting the thoracic herniated disk condition is addressed below; no additional conditions, are within the Board’s defined DoDI 6040.44 purview.  The lumbar, or low back condition, was not identified by the PEB so is not in the purview of this board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records.  .

RATING COMPARISON:

Service IPEB – Dated 20010723	VA - Exam ~ 1 Mos. Pre-Separation  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Herniated Disk, Recalcitrant to Conservative Measures	5299-5293	20%	Herniated Nucleus Pulposus of Thoracic Spine T9-10	5293	20%	20010808	
Thoracic Back Pain	Category II					
No Additional MEB/PEB Entries	Degenerative Disc Disease, Lumbar Spine, L3-4	5010-5292	10%	20010808	
Combined:  20%	Combined:  30%	

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him, but must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for later severity or complications of conditions that caused medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, which operates under a different set of laws

Several recent VA rating decisions (VARDS) and portions of Compensation and Pension (C&P) examinations were not available in evidence prior to the Board and could not be located after appropriate inquiries.

Back Condition.  The CI developed mid-back pain during exercise in 1988.  Thoracic spine X-rays performed in January 1999 were suggestive of early arthritic changes, but were noted to be “not sufficient to make a diagnosis.”  Follow-up X-rays in March 2000 were reported as “normal.”  Bone scan of April 2000 showed no disease process.  An MRI of the thoracic spine of May 2000 revealed a small disc bulge in the mid back (T9-10) mildly compressing the thoracic spinal cord.  On orthopedic evaluation in June 2000, motor and reflex exams were normal and surgical intervention was not recommended.  At the MEB/narrative summary exam of 27 April 2001, 5 months prior to separation, the CI reported continued mid back pain with exacerbation when lifting more than 25 pounds or doing more than 25 sit-ups.  The MEB physical exam noted a normal gait, “full” flexion of the back, normal strength and reflexes in all extremities.  On review of the X-rays of 2000, the examiner opined that some “endplate” irregularities (consistent with early arthritis) of the mid thoracic vertebrae were present.  At the VA C&P exam on 8 August 2001, performed a month prior to separation, the CI reported constant back pain improved by changing positions.  On physical examination the CI was in no apparent distress.  Posture and gait were normal without assistive devices.  He was noted to be able to “sit up from a supine position and transfer from chair to examining table without difficulty.”  Mild muscle tenderness with spasm in the mid and low back areas was present.  There was some evidence of muscle weakness in the mid back area, but motor, sensory and reflex examinations were normal.  Range-of-motion (ROM) of the lumbar spine was normal without pain, weakness or lack of endurance.

The Board directs attention to its rating recommendation based on the above evidence.  The 2002 VA Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine differ significantly from the current §4.71a general rating formula for the spine.  The earlier criteria were subject to the rater’s opinion regarding degree of severity, as opposed to the more objective current standards with quantifiable rating thresholds grounded in ROM measurements.  IAW DoDI 6040.44 the Board must apply the spine rules in effect at time of separation.  Both the PEB and VA rated the back pain condition, code 5293 (intervertebral disc syndrome), as 20% (moderate).  The next higher rating under this code (40%) requires the condition to be “severe,” which was considered by the Board to not be supported by the record in evidence.  The Board unanimously agreed that no higher rating than 20% could be achieved under code 5291 (limitation of thoracic ROM) or any other applicable back code.  The Board further agreed that the second PEB entry, thoracic back pain, was subsumed under the intervertebral disc condition and not subject to additional rating.  The Board considered whether any additional rating could be recommended under a peripheral nerve code.  Firm Board precedent requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to Service disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no functional implication and no motor weakness was in evidence.  Thus, the Board could support a recommendation for an additional disability rating on this basis. The Board was unable to find any other applicable codes for consideration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the thoracic back condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling that any prerogatives outside the VASRD were exercised.  In the matter of the mid back pain, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends no recharacterization of the disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120604, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION 
Ref:           (a) DoDI 6040.44
	               (b) CORB ltr dtd 4 Aug 14

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, 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:

-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX , former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXXX, former USMC

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel
(Manpower & Reserve Affairs)