RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01371
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20140514
SEPARATION DATE:  20041231

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LCPL/E-3 (5711/Nuclear, Biological and Chemical Defense Specialist) medically separated for chronic lumbar pain.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic lumbar pain,” was forwarded to the Physical Evaluation Board (PEB).  The Informal PEB (IPEB) adjudicated “chronic lumbar pain” as unfitting, rated 20%, with likely application of VA Schedule for Rating Disabilities (VASRD).  The CI requested a Formal PEB, but a Reconsideration PEB was held and affirmed the IPEB finding and rating.

CI CONTENTION:  “The VA AWARDED me a higher percentage at the time of Discharge which would qualify me for Military Retirement.”  [sic]

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 chronic lumbar pain condition is addressed below; 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 Recon IPEB – Dated 20040913	VA* - (12 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Lumbar Pain	5237	20%	Lumbar Spine Strain	5237	20%**	20060104	
Other x 0 (Not in Scope)	Other x 2	20060104	
Rated:  20%	Combined:  30%	
* Derived from VA Rating Decision (VARD) dated 20060315 (most proximate to date of separation (DOS))
**20060915 VARD increased rating to 40% effective DOS based on De Novo Review

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation. The Board considers VA evidence within 12 months only to the extent that it reasonably reflects the disability at the time of separation. 

Chronic Lumbar Pain Condition.  The CI’s condition, which began during deployment in April 2003, was not associated with a surgical indication.  Multi-modality treatment including medication, physical therapy, chiropractic care and injections failed to sufficiently improve the pain.  A magnetic resonance imaging (MRI) study in January 2004 was remarkable only for swelling of uncertain significance in the left lumbar paraspinal area.  At a primary care clinic visit on 25 May 2004 (7 months prior to separation) the CI reported that the back pain was worsening.  He had recently tripped and felt pain shooting into the left thigh.  Examination showed a normal gait.  Left paraspinal muscle tenderness was present, but spasm was absent.

The narrative summary on 23 June 2004 (6 months prior to separation) noted that the CI complained of continuous lumbar pain which was exacerbated by certain movements.  Physical examination showed no visible spine abnormality and no spine tenderness.  Lumbar extension, flexion and left rotation was limited due to pain.  A repeat MRI was performed on 1 July 2004 due to intensifying symptoms that corresponded clinically to the area of swelling noted on the prior MRI.  It showed that the previously identified swelling reflected a hematoma (collection of blood) which had increased in size and was likely the result of an identified paraspinal lumbar muscle tear.  The MRI also noted disc bulges from L3-L4.  A follow-up exam on 27 August 2004 (4 months prior to separation) noted that the CI stood in a position of 5 degrees forward lumbar flexion.  Range-of-motion (ROM) was limited and accompanied by mild to moderate pain in all directions.  Severe pain occurred if he tried to exceed the ROM limits.

At the VA Compensation and Pension exam on 23 November 2005 (11 months after separation) the CI reported quitting a job that required prolonged, intolerable standing.  His back pain prevented him from working out or playing with his children.  He did not use assistive devices for his back.  An incapacitating episode requiring physician-directed 48 hours of bed rest reportedly occurred one-year prior.  Examination showed that pain occurred during ROM testing at the end range of all motions.  Repetition did not result in a reduction in ROM.

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PC ~ 7 Mos. Pre-Sep	DD2808 ~ 6 Mos. Pre-Sep	MEB ~ 4 Mos. Pre-Sep	VA C&P ~ 11 Mos. Post-Sep	
Flexion (90 Normal)	80	30*	10	45	
Extension (30)	5	0	0	0	
R Lat Flexion (30)	30 (45)	20	10	10	
L Lat Flexion (30)	30	20	10	15	
R Rotation (30)	Not reported	Not reported	Not reported	30	
L Rotation (30)				30	
Combined (240)	> 145	-	-	130	
Comment	+painful motion	+painful motion	+painful motion	+painful motion	
§4.71a Rating	10%	40%	40%	20%	
	*“Pain free to 30 degrees, then limited by pain”

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under the 5237 code (lumbosacral strain).  The VA’s initial 20% rating under the same code was founded on lumbar flexion of 45 degrees.  However, based on a later exam, the VA increased the rating to 40% effective the day after separation.  Under the §4.71a spine formula, forward flexion of 30 degrees or less justifies a 40% rating and flexion greater than 30 degrees but not more than 60 degrees, combined ROM not greater than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour justifies a 20% rating.  The 30 degrees of flexion measured on the separation exam may have supported a 40% rating, but the examiner’s language suggested the possibility of motion beyond that.  However, the Board agreed that flexion as measured by the MEB exam (10 degrees) was consistent with the presence of a lumbar muscle tear with hematoma and supported a 40% rating.  The Board also considered whether a higher rating could be achieved under the formula for rating intervertebral disc disease based on incapacitating episodes.  However, criteria for the minimum 10% rating under that formula were not present.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the chronic lumbar pain 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 chronic lumbar pain condition, the Board unanimously recommends a disability rating of 40%, coded 5237 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Lumbar Pain	5237	40%	
RATED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
		   DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:   (a) DoDI 6040.44
       (b) PDBR ltr dtd 8 Dec 14 ICO XXXXXXXXXXXXXXX
	 (c) PDBR ltr dtd 15 Dec 14 ICO XXXXXXXXXXXXXXX 
	 (d) PDBR ltr dtd 10 Dec 14 ICO XXXXXXXXXXXXXXX
	 (e) PDBR ltr dtd 24 Dec 14 ICO XXXXXXXXXXXXXXX
       (f) PDBR ltr dtd 18 Dec 14 ICO XXXXXXXXXXXXXXX
       (f) PDBR ltr dtd 18 Dec 14 ICO XXXXXXXXXXXXXXX
	 (h) PDBR ltr dtd 12 Feb 15 ICO XXXXXXXXXXXXXXX
          
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (h).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 40 percent disability rating effective date of discharge.

     b. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 percent disability rating effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USMC:  Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge. 

     e. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a disability rating of 40 percent effective date of discharge.

     f. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a disability rating of 40 percent effective date of discharge.

     f. XXXXXXXXXXXXXXX, former USMC: Disability separation with final disability rating of 20 percent (increased from 10%) effective date of discharge.

3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are completed.

	XXXXXXXXXXXXXXX
	Assistant General Counsel
	  	                           (Manpower & Reserve Affairs)