RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD1300046
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE: 20130814
SEPARATION DATE: 20080715

SUMMARY OF CASE:   Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (0311/Squad Leader) medically separated for “significant back pain/lumbago and disk degeneration.”  The CI developed back pain after a forced march in late 1999, with recurrent episodes of back pain between 2000 and 2008. Despite non-operative treatment with non-steroidal anti-inflammatory drugs, periods of limited duty (LIMDU) and light duty, physical therapy (PT), and epidural steroid injections (ESI), the CI’s condition could not be adequately rehabilitated to continue to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.   He was referred for a Medical Evaluation Board (MEB) which forwarded lumbago and degeneration of lumbar or lumbosacral intervertebral disk conditions to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.    The PEB adjudicated significant back pain/lumbago, and disk degeneration to be unfitting, and rated 20% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION: “Review for fairness.”

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 pain/lumbago and disk degeneration 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 20080514	VA - (8 Days Post Separation) Effective 20080716
Condition	Code	Rating	Condition	Code	Rating	Exam

5243	20%

Back Pain/Lumbago and
Disk Degeneration

Lumbar Spine Intervertebral Disk Syndrome with Involvement of Left Sciatic Nerve

5243	60%	20080723

No Additional MEB/PEB Entries	Other x4	20%	20080723
Rating: 20%	Combined: 70%
Derived from VA Rating Decision (VARD) dated 20080822 (most proximate to date of separation [DOS])

documentation  were  unsuccessful.    While  missing  evidence may be  referenced in  context below, the Board concluded the missing evidence would likely not have altered the Board’s recommendations.

Significant Back Pain/Lumbago and Disk Degeneration Condition.  There were two goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation as summarized in the chart below.

Thoracolumbar ROM (Degrees)	MEB ~ 5 Mos. Pre-Sep	VA C&P 8 days Post Sep	
Flexion (90° Normal)	>50°	60°	
Combined (240°)	200°	180°	

Comment	No pain with internal rotation of hips; motor/sensation/reflexes nml; straight leg raise (SLR) Neg.; cross straight leg raise Neg.	ROM   limited   by   pain;   Gait-normal;   Pos.   painful motion; Pos. paraspinal muscle spasm; no tenderness or weakness; SLR Neg.; Neg. Deluca criteria; motor/sensory/reflexes were nml	
§4.71a Rating	20% (PEB 20%)	20% (VA 60%)	

After a forced march in November 1999, the CI noted that he had difficulty standing up straight due to hip pain.   After evaluation of his left hip pain was negative, a lumbar spine magnetic resonance imaging (MRI) scan performed in January 2000 revealed bulging discs at L3-4, L4-5 and L5-S1 with moderate canal stenosis.  The CI was referred to a pain clinic for left radicular pain and L4-5 disk disease. The pain management specialist noted an antalgic gait, heel and toe pain, and bilateral straight leg raise limited to 30 degrees.  The CI received his initial ESI at that visit and a PT consult was submitted.  The CI was also granted 8 months of LIMDU beginning
17 January 2000 (which was curtailed on 3 March 2000 and the CI returned to full duty).  The CI underwent two more ESIs with fair results.  On 28 March 2000, the CI was placed on 14 days of light duty for sharp, moderate low back pain (LBP) that radiated to the left hip and caused limited ROM.  In April 2000 he was again placed on light duty for 10 days due to a LBP flare. The CI was seen in follow-up with orthopedics in July 2000 for LBP and had physical findings of normal motor activity and sensation.  Another follow-up evaluation in March 2004 revealed physical findings of normal motor strength however, there was decreased ROM.   A pain management evaluation, also in March 2004, noted that the CI had subtle weakness involving the proximal left lower extremity and pain that primarily involved the left lumbar region and radiated down the lateral aspect of the left leg to the shin and ankle and normal sensory testing,  however,  motor  testing  was  5/5  except  for  some  subtle  weakness  involving  the iliopsoas muscle at 4+/5.   The narrative summary examination performed 5 months prior to separation indicated the CI had his most significant back flare during that past year.  It was described as 80% back and 20% left leg pain with the left leg pain radiating down the lateral aspect of his thigh and leg down to his calf with numbness and tingling in the lateral left foot. The chronic pain was exacerbated by prolonged sitting, standing, bending lifting and twisting, and temporary relief was provided by medications and shifting positions.  The examiner opined that the pain was severe enough that it affected the CI’s ability to do his military duties, leisure activities and activities of daily living.  The physical exam findings are summarized in the chart above.  The commander’s statement indicated the CI’s condition required he be away from his duties 12 to 16 hours per week and the CI was unable to perform his MOS duties because of the functional limitations that resulted from his back pain.   The VA Compensation and Pension (C&P)  examination  accomplished  8  days  after  separation  noted  the  CI  had  chronic  LBP associated with stiffness, weakness and intermittent sharp, sticking pain that radiated to the left lower extremity.  The pain occurred twice daily and lasted for an hour.  The examiner noted that the CI reported he had 160 days of incapacitation with some instances requiring complete bed rest in the past year (this could not be corroborated in the available evidence).  The examiner referenced a lumbar spine MRI performed in January 2008 which showed central disc

protrusion at L3-4 and L4-5 with an annular tear and disc bulging with central disc protrusion at L5-S1, contributing to moderate effacement of the subarachnoid space; disc protrusion in contact with the right S1 nerve root; and moderate inferior recess foraminal stenosis on the right secondary to asymmetric bulging of the disc at L5-S1.  The VA C&P physical exam findings are summarized in the chart above.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA chose the same disability code 5243 (intervertebral disc syndrome), however, the PEB rated the condition 20% and the VA rated it 60%.  The VA apparently based their 60% rating on the CI’s report that he sometimes required bed rest and had had 160 days of incapacitation within a year.  The Board noted the relevant criteria: “Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.”  There was no evidence the CI required bed rest prescribed by a physician, despite the commander’s statement the CI was away from his duties 12 to 16 hours per week for evaluation and treatment.  These absences from duty hours were not further elaborated.   Additionally, there was no post-separation evidence that the CI had sought treatment from a physician.  The Board agreed that the totality of the record did not approach the threshold for a rating higher than 20% because there was insufficient evidence to support a conclusion there were at least 4 weeks of incapacitation within the year before separation. The general rating formula for diseases and injuries of the spine considers the CI’s pain symptoms “With or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area  of  the  spine  affected  by  residuals  of  injury  or  disease.”    Both  exams  proximate  to separation met the 20% rating criteria based on ROM of the thoracolumbar spine for forward flexion of greater than 30 degrees but not greater than 60 degrees.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  Additionally, the pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case had no functional implications.  The motor impairment was relatively minor and cannot be linked to significant functional impairment.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  After due deliberation, considering all of the available 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 significant back pain/lumbago and disk degeneration 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 significant back pain/lumbago and disk degeneration condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.

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	
Back Pain/Lumbago and Disk Degeneration	5243	20%	
	COMBINED	20%	

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130128, 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)