RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1200705
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20131017
SEPARATION DATE:  20021031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Gunnery Sergeant (GySgt)/E-7 (8511/Infantry) medically separated for a low back condition.  The CI noted an onset of low back pain (LBP) in October 1984.  The CI had noted an insidious onset with no specific event that he could recall.  The low back pain condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The low back condition was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The PEB adjudicated “degenerative disc disease at L5-S1 with a history of a herniated nucleus pulposus as a Category I as unfitting, rated 10%.”  Chronic LBP was determined to be a Category II condition that contributed to the primary unfitting diagnosis and was not separately ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “With time My condition hasn’t improved & As My biological clock continues to tick My lower back issues continue to worsen.”

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 lower back condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the 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 – 20020313 | VA - Based on Service Treatment Records (STR)
Condition | Code | Rating | Condition | Code | Rating | Exam
Degenerative Disc Disease at L5-S1 with a History of A Herniated Nucleus Pulposus | 5293 | 10% | Degenerative Disc Disease | 5293 | NSC* | STR
Chronic Low Back Pain | Cat II | -- | | | |
No Additional MEB/PEB Entries | No additional VA entries |
Combined:  10% | Combined:  NSC
Derived from VA Rating Decision (VARD) dated 20030908 (most proximate to date of separation [DOS]).
* Initially Not Service Connected (NSC) then granted service connection with a 10% rating effective 20021101; day after separation.

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 service members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD) in effect at the time of separation.  The Board notes that the 2002 VASRD standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004.  The Board must correlate the above clinical data with the 2002 rating schedule.

Lower Back Condition.  October 1984 STR entries noted the CI had onset of LBP which previously radiated down the side of his legs.  A magnetic resonance imaging obtained on 18 May 1998 showed disc degenerative disease and disc herniation displacing the S1 nerve.  The electromyography nerve conduction velocity study performed on 11 June 1998 found no abnormalities in nerve function to explain his symptoms.  On 12 February 2002, 8 months prior to his date of separation, his commander stated the low back condition had not adequately rehabilitated to meet the physical requirements of his MOS, or satisfy physical fitness standards in a line unit.  He was placed on LIMDU in February 2002, 8 months prior to separation, and referred for an MEB.  At the narrative summary exam in February 2002, the CI reported that the pain which had previously radiated down his legs had slowly resolved and localized to the low back and buttocks.  On physical exam the CI presented “sitting comfortably in no acute distress.”  The exam then showed muscle spasms in the lower back with normal motor strength, sensation and neurological exam.  A slight decreased range-of-motion (flexion) was noted for the back.  No VA Compensation and Pension exam was completed.

The Board directs attention to its rating recommendation based on the above evidence.  On 13 March 2002, the Informal PEB rated the back condition at 10% IAW 4.17a, applying the 5293 intervertebral disc syndrome code of the VASRD in effect at the time.  A higher rating of 20% under this code requires characteristic sciatic pain, ankle jerk or other neurological findings of moderate severity not supported by the record.  The Board agreed that the condition was mild and supported the 10% rating under this code.  The Board, applying the VASRD code in effect at the time of separation, considered rating under code 5292, (limitation of motion), 5293 (intervertebral disc syndrome/incapacitation) and 5295, (lumbosacral strain), but concluded no rating higher than 10% was supported by the record in evidence under any of these codes.  This would provide no benefit to the CI.  There was no evidence of any unfitting peripheral nerve impairment due to radiculopathy.  The Board found no other appropriate VASRD 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 degenerative disc disease (DDD) with chronic LBP 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 in this case that any prerogatives outside the VASRD were exercised.  In the matter of the DDD with chronic LBP condition 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, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION | VASRD CODE | RATING
Degenerative Disc Disease | 5293 | 10%
COMBINED | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120612, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW 
                                        BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
          (b) CORB ltr dtd 17 Dec 13

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

- XXXXXXXXXXXXXXXXXX former USMC

						       XXXXXXXXXXXXXXXXXX
	     					       Assistant General Counsel
						         (Manpower & Reserve Affairs)

PD1200705