RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX 	CASE:  PD-2013-02265
BRANCH OF SERVICE:  MARINE CORPS 	BOARD DATE:  20140930
SEPARATION DATE:  20040831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPL/E-4 (6153/Air Framer) medically separated for discogenic lower back pain.  The back 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 [LIMDU] and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “discogenic low back pain” and “L4/L5 herniated nucleus pulposus” (HNP), by the MEB were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated discogenic low back pain (LBP) as unfitting rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “The PEB which was set up to determine my ability to continue in the USMC was dated January 2003.  This PEB documentation did not include the IDET performed on April 2003 nor does it contain the subsequent year of medical visits and treatment.  The determination was made without the full facts and missing almost a years’ worth of information. Also, while I know you are unable to correct this, the VA determination letter states that the rating for the back injury is for a lower back strain while the documentation from the physicians and the MRI show that it is disk derangement and not a simple strain.  This derangement should be taken into consideration in the final decision.” 

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 back 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 IPEB – Dated 20040511	VA - (2 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Discogenic Low Back Pain	5237	10%	Thoracolumbar Spine Strain	5237	10%	20040628	
L4/L5 HNP	Category 2	No VA Entry	
Other x 0 (Not is Scope)	Other x 11	
Rating:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20041013 (most proximate to date of separation)

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.  

Discogenic Low Back Pain.  The service treatment record indicated the CI sought treatment for LBP of one year’s duration in November 2001.  There was no history of trauma or a precipitating event.  Treatment was with medication and physical therapy that afforded no improvement.  A magnetic resonance imaging (MRI) obtained on 31 October 2002, of the lower back showed desiccant disk space disease (degenerative disc disease) at L4-5 with a central disk bulge and protrusion through an annular tear (tough outer layer of the disc) without nerve root compromise.  The CI underwent epidural steroid injections in November and December 2002, without relief.  Subsequently, he had imaging studies (diskogram and CT scan) in February 2003 which also revealed an annular tear.  He then underwent minimally invasive treatment by an intradiscal electrothermal annuloplasty procedure on 29 April 2003 with some improvement, but pain persisted.  However, there was no radiculopathy.

The MEB narrative summary (NARSUM) dated 3 March 2004 noted the CI had two periods of LIMDU beginning in May 2002 and January 2003 for a total of 14 months.  The CI had full range-of-motion (ROM) of flexion/extension, rotation, side bending at the waist.  Strength and deep tendon reflexes were normal.  Testing of the sacroiliac joint, part of the pelvis, was abnormal.  The CI’s gait was not addressed by the examiner nor was there any mention of incapacitation.  

The non-medical assessment dated 2 April 2004 indicated that the CI was non-deployable and was unable to satisfy the Marine Corps standard for physical fitness.  

At the MEB examination dated 21 April 2004, the CI reported had “lower back problems” with a “bulging and torn disk at L4-L5, L5-S1 and he could “not sit, stand or bend at [the] waist without pain”.  The MEB physical examination noted a full ROM of the spine with normal strength and reflexes, but did not address gait or incapacitation.

At the VA Compensation and Pension (C&P) examination dated 28 June 2004 (performed 2 months prior to separation), the CI reported a history of LBP for a duration of 2 years and 5 months.  The pain was brought on by physical activity, stress, “by itself,” and by prolonged sitting and standing.  It was relieved by “rest and taking it easy.”  There was no incapacitation, but he could not lift heavy objects.  Examination revealed no radiation of pain on movement, no muscle spasm and no tenderness.  ROM was normal with pain on extremes and gait was normal.  There was no ankylosis (bony fusion) of the spine and no signs of the intervertebral disc syndrome.  Neurological examination was normal.  X-ray images of the lumbar and thoracic spine were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both assigned a rating of 10% using the code 5237 (lumbosacral strain).  Absent limited ROM, spasm resulting in an abnormal contour or gait, or incapacitation, the Board found no route to a rating higher than the 10% assigned by both the PEB and VA.  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 discogenic back 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 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.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131108, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			

XXXXXXXXXXXXXXX
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 26 Mar 15

      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:

- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC

						  XXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)