RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xx	CASE:  PD1201771
BRANCH OF SERVICE:  Marine Corps	BOARD DATE:  20130508
SEPARATION DATE:  20021205

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an reserve LSCPL/E-3 (5811/Military Police) medically separated for lower back pain with right greater than left sciatica, status post (s/p) bilateral L4-5, hemilaminectomy with excision of herniated disc.  The CI injured his back during drill in September 1998.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The lower back pain with right greater than left sciatica, s/p bilateral L4-5, hemilaminectomy with excision of herniated disc condition, characterized as medically unacceptable, was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The PEB adjudicated the back pain condition as unfitting, rated 20%.  The CI made no appeals, and was medically separated with a 20% disability rating.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 ratings for the unfitting lower back pain with right greater than left sciatica, s/p bilateral L4-5, hemilaminectomy with excision of herniated disc 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 – Dated 20010921	VA - (# Mos. Pre/Post-Separation)  -or- based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lower Back Pain w/Right Greater than Left Sciatica, Status Post Bilateral L4-5, Hemilaminectomy w/Excision of Herniated Disc	5293	20%	Lower Back Problems	5237	NSC	STR	
No Additional MEB/PEB Entries			
Combined:  20%	Combined:  NSC	
Derived from VA Rating Decision (VARD) dated 20090121 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY: 

Lower Back Pain Condition.  Service treatment records (STRs) indicated a history of low back pain (LBP) beginning September 1998, after an injury during drill training.  The CI recalled a pop at the time of the injury.  He later experienced shooting pains from the lower back.  The CI was treated with injections, medication, and physical therapy with good benefit until a year later, his pain returned.  A November 1999 treatment note  reported slight tenderness to palpation over the lumbar spine; positive straight leg raise in both legs, normal patellar reflexes, and no decrease in sensation over the posterior thigh region.  Range-of-motion (ROM), motor strength and gait were not recorded.  The records referenced a magnetic resonance imaging (MRI) in November 2000 that reportedly demonstrated herniated disc at L4-5.  On 5 December 2000, the CI underwent surgery without noted complication.  Neurology evaluation on 14 March 2001, approximately 19 months prior to separation, recorded normal motor strength (to be grossly intact), antalgic but appropriate gait, decreased reflex at the right knee and decreased sensation to pin prick over first and second toes and distal dorsum of the foot.  ROM was not recorded.  At the 11 June 2001 neurology exam, dictated shortly prior to the narrative summary (NARSUM), the CI reported having had post-operative myelogram and an MRI by his civilian operating surgeon afforded no explanation for his symptoms.  On the MEB NARSUM evaluation dated 18 June 2001, approximately 18 months prior to separation, the CI reported back pain was constant and he continued to have right lower extremity pain shooting down the back of his leg to the bottom of his feet with numbness of his right toes.  He reported feelings of ‘weakness’ to occur in the leg ‘at the end of the day.’  On examination, motor strength bilaterally of the lower extremities was normal except there was mild decrease in the right knee with flexion and extension.  No evidence of muscle atrophy.  Gait was antalgic there was decreased pinprick sensation of the right two toes and dorsum surface of the foot.  Pain was noted on heel walk and reflexes were decreased.  Lumbar ROM was not recorded.  

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition 20% and used the intervertebral disc syndrome code, 5293.  The VA determined the condition was not serviced-connected and provided no rating.  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 must correlate the above clinical data with the 2002 rating schedule which was in effect at the time of separation (applicable diagnostic codes include: 5292 (limitation of lumbar spine motion); 5293, (intervertebral disc syndrome), and 5295 (lumbosacral strain).  The Board undertook a review of the treatment records and agreed the evidence supported the 20% rating under the 5293 code.  LBP with sciatica was sufficiently documented for moderate recurring attacks.  The Board agreed the higher rating of 40% was not approached in this case, since no motor weakness conferred functional impairment and sensory symptoms had little functional implication.  There was no evidence of muscle atrophy, or absent ankle reflexes, or other pronounced neurological deficit resulting in recurrent severe attacks.  The Board considered rating the condition under the 5292 code and agreed there was insufficient evidence in the record to support a higher rating under the 5292 code.  There was no recorded ratable limitation in ROM in any of the treatment records prior to separation.  The Board considered the rating under 5295, lumbosacral strain, and agreed there was insufficient evidence to support a rating higher than the minimal compensable rating under this code.  The record in evidence did not record the presence of back spasms.  The Board opined that the sciatica condition was an integral part of the back pain pathology and could not be recommended for an additional rating IAW VASRD 4.14 (Avoidance of pyramiding).  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 LBP with sciatica condition.  The Board was unable to find any pathway to a higher rating under any applicable VASRD code.
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 low back 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	
Lower Back Pain With Right Greater Than Left Sciatica S/P Bilateral L4-5 Hemilaminectomy With Excision Of Herniated Disc	5293	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120929, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	xx
	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 20 Aug 13

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

- former USN 
- former USMC
- former USMC
- former USMC
- former USMC
- former USN 
- former USMC
- former USN 

						  xx
	     					  Assistant General Counsel
						     (Manpower & Reserve Affairs)