Author: JOHN J. D'ORAZIO
Last saved by: julie.raveau
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xx	CASE:  PD1300058
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20130718
SEPARATION DATE:  20080731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (3531/Motor Vehicle Operator) medically separated for a low back condition.  Her back pain began in October 2004 with additional right leg pain.  In October 2007 she underwent an anterior and posterior two level lumbar fusion at L4/5 and L5/S1.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The low back condition, characterized as “degeneration of lumbar or lumbosacral intervertebral disc” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The PEB adjudicated the “lumbar degenerative disease status post two level lumbar fusion” as unfitting, rated 20%.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in her 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 rating for the unfitting low 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 Navy Records.

RATING COMPARISON:

Service IPEB – Dated 20080506 | VA - (3 Mos. Pre -Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Lumbar Degenerative Disease S/P 2-Level Lumbar Fusion | 5241 | 20% | S/P Lower Back Surgery for Stabilization of L4-S1 | 5241 | 10%* | 20080415
No Additional MEB/PEB Entries | Other x 9 | 20080415
Combined:  20% | Combined:  40%
Derived from VA Rating Decision (VARD) dated 20080815 (most proximate to date of separation [DOS]).
* Rating increased to 20% per 20100806 VARD effective 20100406.

ANALYSIS SUMMARY:

Low Back Condition.  The CI initially presented with reports of lower back pain in 2005.  There was no history of trauma.  Her back pain continued to worsen despite chiropractic care, physical therapy, medication, and nerve blocks.  A magnetic resonance imaging study in May 2007 demonstrated moderate protrusion of the L4/L5 disk with mild central spinal stenosis and slight bulging of the L5/S1 disk.  In October of 2007, the CI underwent an anterior block diskectomy and L4/L5 and L5/S1 stabilization; posterior lateral fusion L4/L5 and L5-S1; bilateral facet fusion; hemilaminectomy and facetectomy; and posterior spinal fusion.  Three months postoperatively the CI reported resolution of her leg pain and significant improvement of her lower back pain The narrative summary 4 months prior to separation notes no complaints of back or leg pain, she was not taking any medications, and continued physical therapy.  The physical examination documented healed surgical incisions and normal motor and neurologic evaluations.  Radiographic evaluation demonstrated excellent positioning of the lumbar instrumentation.  At the VA Compensation and Pension exam performed 3 months prior to separation, the CI reported lower back stiffness, weakness, and pain.  The pain was rated at a 3 on a scale from 1 to 10 and occurring twice daily for approximately 2 hours.  The CI reported that she was able to function without medications.  The physical examination demonstrated normal posture and gait with lumbar muscle spasms.  There was pain with thoracolumbar flexion and extension.  Straight leg raise was negative bilaterally.  Motor and neurologic evaluations were normal.

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and VA coded the lumbar degenerative disease status post two level lumbar fusion condition 5241, spinal fusion.  The PEB assigned a disability rating of 20% and the VA a rating of 10%.  At the time of separation, the CI was not taking any pain medications and did not report any further incapacitating episodes after her surgery.  Physical evaluations demonstrated intermittent tenderness to palpation, spasms not resulting in abnormal spinal contour, and pain limited range-of-motion. After due deliberation, considering all of the evidence and mindful of Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lumbar degenerative disease status post two level lumbar fusion condition.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

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 lumbar degenerative disease status post two level lumbar fusion 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
Lumbar Degenerative Disease S/P 2-Level Lumbar Fusion | 5241 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 2012, 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 5 Nov 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:

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

						      xx
	     					       Assistant General Counsel
						         (Manpower & Reserve Affairs)

PD1300058