RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-01924
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20140819
Separation Date:  20080929

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-2 (0311/Infantryman) medically separated for a back condition.  The back condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) 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 “displacement of lumbar intervertebral disc without myelopathy,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “lumbar degenerative disk disease (DDD)” as unfitting, rated 10%, with application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes: “Please consider all conditions”.

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; 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 20080711 | VA - based on Service Treatment Records (STR)
Condition | Code | Rating | Condition | Code | Rating | Exam
Lumbar DDD | 5237 | 10% | Lumbar DDD with Radiculopathy | 5242 | 20% | STR
Other X 0 (Not in Scope) | Other x 1
Combined:  10% | Combined:  30%
Derived from VA Rating Decision (VARD) dated 20090124 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VASRD standards, based on ratable severity at the time of separation.

Lumbar DDD Condition.  The CI initially presented with a soft palpable nodule along his spine, which was painful with activity that developed in October 2006.  A thoracic spine X-ray was normal.  The CI was evaluated in Sports Medicine clinic for chronic mid back pain with paresthesias, back stiffness, buttock pain, tingling in the anterior thighs and numbness in the legs.  The physical exam findings were tenderness to palpation (TTP) in the right paraspinal region, TTP in the T9 region of the left paraspinals, minimal tenderness throughout the range-of-motion (ROM), TTP at the spinous process of L5, right leg straight leg raise (SLR) was positive with back pain at 50 degrees, left leg SLR was positive for back pain and tightness at 30 degrees and a Patrick-Faber test was positive on the right side.  The hip flexion was 4/5 strength, however sensory and reflexes were normal.  A lumbar spine X-ray performed for bilateral numbness and back pain was normal.  A repeat lumbar spine X-ray was normal.  The CI was evaluated by orthopedics who documented that the CI reported pain across the low back as well as left side of the upper back, some numbness and tingling and radiating pain to left lower extremity greater than right lower extremity and weakness of the bilateral lower extremities.  The neurologist documented that the CI reported constant back pain, worse when supine, better when sitting/standing.  Pain was worse with walking, running or any activity using back muscles; and there was constant tingling along the posterior left thigh and calf extended into the foot with intermittent numbness and tactile dysesthesias.   Both legs were weaker.  The physical exam findings were TTP in the left hip region with referred pain to the left foot; however, the motor, sensory and reflex exams were normal.  There were no ROM measurements done at this exam.  An electromyelogram (EMG) performed on 5 September 2007 was normal.  The CI was placed on LIMDU from 8 October 2007 to 8 April 2008 for lumbago.  Despite extensive physical therapy treatment modalities, along with a lumbar corset, the CI continued with chronic back pain and radicular symptoms.  A lumbar spine magnetic resonance imaging (MRI) performed on showed L5-S1 DDD.  A pain management exam approximately 7 months prior to separation documented that the CI reported severe back pain rated at 6-7/10 with spiking episodes about once per day.  Nearly all activities increased the pain and sitting intolerance of greater than 30 to 60 minutes with sleep significantly interrupted.  The physical exam findings are summarized in the chart below.  A repeat MRI showed L4-5 mild annular bulge, L5-S1 DDD, mild annular bulge and bilateral facet disease.  The MEB narrative summary (NARSUM) exam approximately 5 months prior to separation documented constant left leg numbness in the S1 distribution and paresthesias in the right leg when seated and occasional heel numbness, which would radiate up the back into the gastrocnemius area with 5-10/10 daily lower back pain with radiation into both legs.  The examiner opined that the CI had very advanced DDD at L5-S1 for his age which caused the radiculopathy.  He further opined that the synovial cyst was not of significance, as it did not enhance on MRI and there was no treatment recommended.  The MEB NARSUM physical exam findings are summarized in the chart below.  The MEB history and physical exam performed 5 months prior to separation documented tenderness to palpation lower back, decreased hip flexor strength and an inability to walk without cane assistance.  The Non-Medical Assessment indicated that the CI’s back problems interfered with his MOS duty performance.  A VA Compensation and Pension exam was not performed as the CI did not report for the scheduled exams.

There were two ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the following chart:

Thoracolumbar ROM (Degrees) | MEB 5 Mos. Pre-Sep | Pain Management 5 Mos. Pre-Sep
Flexion (90 Normal) | 45 | 40
Combined (240) | 195 | -
Comment | Normal strength & reflexes; Decreased sensation lateral aspect both feet; Straight leg raises (SLR) elicits back & leg pain | Pos. painful motion; Normal strength & reflexes; Decreased sensation left calf & foot; Equivocal SLR
§4.71a Rating | 20% | 20%

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the lumbar DDD condition as 5237 (Lumbosacral or cervical strain) and rated it 10%.  The VA coded the lumbar DDD with radiculopathy condition as 5242 (degenerative arthritis of the spine) and rated at 20%, based on the STR.  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.”  The Board considered the criteria for a 20% rating “Forward flexion of the thoracolumbar spine greater than 15 degrees but not greater than 60 degrees.”  Both exams proximate to separation document that thoracolumbar flexion was measured at 45 or 40 degrees, both consistent with the 20% rating.  The Board reviewed the findings documented on the MEB physical exam and was unable to identify any supporting documentation that the CI required assistance walking or had demonstrable leg weakness.  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.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no functional implications and if motor impairment was present, it was relatively minor and cannot be linked to significant physical impairment.  An EMG was normal, with no evidence of a lumbosacral radiculopathy.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the lumbar DDD condition without the addition of a peripheral neuropathy 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 lumbar degenerative disc disease condition, the Board unanimously recommends a disability rating of 20%, 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Lumbar Degenerative Disc Disease | 5237 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140501, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXX
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 29 Mar 15 ICO XXXXXXXXXXXXXX  
	 (c) PDBR ltr dtd 29 Mar 15 ICO XXXXXXXXXXXXXX
	 (d) PDBR ltr dtd 29 Mar 15 ICO XXXXXXXXXXXXXX  

1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (d).

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

     a. XXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a 20 percent (increased from 10 percent) disability rating effective date of discharge.

     b. XXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a 20 percent (increased from 10 percent) disability rating effective date of discharge.

     c. XXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a 20 percent (increased from 10 percent) disability rating 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.

	XXXXXXXXXXXXXX
	Assistant General Counsel
                                      (Manpower & Reserve Affairs)