RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXX                   BRANCH OF SERVICE:  marine corps
CASE NUMBER:  PD201100007                  SEPARATION DATE:  20080830
BOARD DATE:  20111206


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered  individual  (CI)  was  an  active  duty  member,
SSgt/E-6 (6116 / Tilt Rotor Mechanic), medically separated for  degenerative
disk disease (DDD).  The CI’s low back pain (LBP) began in 2004 while  doing
physical training and was not attributed to any specific trauma  or  injury.
The CI failed conservative measures  of  physical  therapy,  medication  and
chiropractor care.   The  option  of  surgery  was  discussed,  but  the  CI
declined (considered reasonable).  The CI  did  not  respond  adequately  to
perform within his military occupational specialty (MOS)  or  meet  physical
fitness standards.  He was placed on his  third  limited  duty  (LIMDU)  and
referred for a Medical Evaluation Board (MEB).  “Other and unspecified  disc
disorder of lumbar region  and  lumbago”  were  forwarded  to  the  Physical
Evaluation Board (PEB) as medically  unacceptable  IAW  SECNAVINST  1850.4E.
No other conditions appeared on  the  MEB’s  submission.   Other  conditions
included in the Disability Evaluation System (DES) packet will be  discussed
below.  The Informal PEB (IPEB) adjudicated  DDD  as  unfitting,  rated  20%
with  application  of  the  Veterans  Administration  Schedule  for   Rating
Disabilities (VASRD).  The CI made no appeals, and was  medically  separated
with a 20% disability rating.


CI CONTENTION:  The CI contends for a higher rating  for  his  lumbar  spine
condition (disc) due to worsening of  his  disability  over  time.   The  CI
states: “I was  discharge  [sic]  for  a  back  condition  which  my  doctor
diagnose [sic] as a full annular tear to the L5-S1 disc. As  anyone  with  a
back problem can tell you some days are better than others.  In  my  case  I
need to constantly  take  pain  killer  just  to  be  able  to  do  everyday
functions. Some days I feel better and I only have to take  a  minimal  dose
of my pain killer but others I have to max out on them.   My  physical  exam
for my Medieal [sic] Evaluation Board only took a snapshot of  my  condition
at the time I took the exam and  it  was  not  at  all  and  [sic]  accurate
representation of my condition. The VA also used  the  same  method  for  my
evaluation. In order for me to had [sic] attended my physical exam for  both
the VA and Medical Board I had to take my  pain  kiIIers.  This  reduced  my
pain level therefore allowing me to have a greater range of  motion  that  I
would not have without those pain killers.  Taking  my  pain  medication  as
prescribed reduce my pain level but if for some reason or  another  I  would
miss a doze [sic]  I  could  barely  move  once  my  pain  killer  wore  off
completely. When my condition worsen [sic] in December of 2006 I was  taking
only two pain killers. Shortly after discharge the number  of  pain  killers
required to keep my pain level down was up to three. This  has  only  gotten
worse and it is taking more and more pain medication  to  keep  me  function
[sic] so I can hold a regular job. The highest  number  of  pain  killers  I
have been on is 5 and thanks to acupuncture I'm now down to  4.  This  is  a
combination of pain killer [sic] that have allowed my pain level  to  remain
at a range of 4 to 6 on a 1 to 10 scale. Whenever I do miss a doze [sic]  my
pain level increases to 7 or 8 on a good  day.   I'm  unable  to  find  good
paying jobs because of my condition and I have already lost two  job  offers
because the companies [sic] doctors will not take the  liability  of  having
someone in  my  condition  in  their  payroll  is  good  for  business.  The
financial  problems  my  back  have  [sic]  cause  [sic]  could  greatly  be
alleviated with a  change  in  my  disability  rating.  Thank  you  for  the
opportunity to be heard and I look forward to your reply.”


RATING COMPARISON:

|Service IPEB – Dated 20080606  |VA (1 Mo. Pre-Separation) – All Effective|
|                               |20080831                                 |
|Condition                      |Code                              |Rating |
|Combined:  20%                 |Combined:  50%                           |


ANALYSIS SUMMARY:  The Board acknowledges the  sentiment  expressed  in  the
CI’s application regarding the significant impact that his  service-incurred
condition has had on his current earning ability and quality  of  life.   It
is a fact, however, that the DES has neither the role nor the  authority  to
compensate Service members for  anticipated  future  severity  or  potential
complications of conditions resulting  in  medical  separation.   The  Board
evaluates  Department  of  Veterans’  Affairs  (VA)  evidence  proximal   to
separation in arriving at its recommendations, but its authority resides  in
evaluating the fairness of DES fitness decisions and  rating  determinations
for disability at the time of separation.

Degenerative Disk Disease Condition.  The  CI’s  had  onset  of  severe  LBP
during a PT test in 2006 with pain radiating  to  the  right  thigh.   There
were three spine examinations in evidence, two  with  goniometric  range-of-
motion (ROM) measurements, which  the  Board  weighed  in  arriving  at  its
rating recommendation.  The exams were the MEB exam,  the  physical  therapy
(PT) range of motion evaluation and the VA compensation  and  pension  (C&P)
exam.  All three of these exams are summarized in the chart below.

|Goniometric ROM|MEB ~ 7 Mos.   |PT ~3 Mos. Pre-Sep|VA C&P ~ 1 Mo.    |
|- Thoracolumbar|Pre-Sep        |                  |Pre-Sep           |
|Flex (0-90)    |“Full ROM”     |0-60⁰             |0-40⁰             |
|COMBINED (240) |               |165⁰              |190⁰              |
|Comment        |Normal posture |Difficulty rising |Normal posture and|
|               |and gait; no   |from positions    |gait.  No muscle  |
|               |muscle spasm;  |secondary to pain;|spasm; Neg SLR;   |
|               |painful ROM; no|+ SLR on right    |Painful ROM;      |
|               |documentation  |                  |+Deluca; normal   |
|               |of             |                  |motor but decr    |
|               |incapacitating |                  |sensory R leg;    |
|               |episodes       |                  |erectile          |
|               |               |                  |dysfunction       |
|§4.71a Rating  |10%*           |20%               |20%               |


      *With application of §4.59

The narrative summary (NARSUM) exam and the C&P exam  noted  normal  posture
and gait with the absence of  muscle  spasm.   All  three  exams  documented
painful motion, with both  the  physical  therapy  and  the  C&P  exam  also
documenting  limited  range  of  motion.   The  MEB  exam  did  not  include
goniometric range of motion measurements.   The  CI  was  found  to  have  a
positive straight leg raise (SLR) test on the right at the physical  therapy
exam.  The VA exam noted normal motor function with  negative  SLR  testing,
but documented numbness in the lateral aspect of the  right  leg  and  right
foot.  Additionally, the VA examiner found that repetitive use of the  lower
back resulted in pain, fatigue, weakness and lack of endurance, but did  not
result in further decrease in  range  of  motion.   A  lumbar  MRI  noted  a
central focal disk bulge at L5-S1 without narrowing of the neural  foramina.
 That study also noted two benign Tarlov cysts  at  the  S2  and  S3  level,
which  were  felt  to  be  developmental  in  nature,  but  which  may  have
contributed to the CI’s radicular symptoms.  A CT diagnosed a central  large
full-thickness annular  tear  at  L5-S1  with  mild  disc  degeneration  and
associated broad-based disc extrusion which was central  and  asymmetric  to
the right.  The L5-S1 discogram performed  the  same  date,  reproduced  the
CI’s pain symptoms.

The PEB and  the  VA  utilized  identical  coding  for  intervertebral  disc
syndrome and both rated at 20% based upon limitation of motion.   There  was
no documentation of incapacitating episodes to justify rating based on  that
criteria.  The degree of limitation of lumbar spine  flexion  documented  at
the physical therapy exam and the C&P exam meets the criteria  for  the  20%
rating’s “forward  flexion  of  the  thoracolumbar  spine  greater  than  30
degrees but not greater than 60 degrees.”

Finally, the Board noted that there was no evidence of a ratable  peripheral
nerve impairment.  The CI did report complaints of periodic  pain  radiating
into his right thigh and he also complained of erectile dysfunction  due  to
his lumbar spine condition.  A positive SLR test was documented  at  the  PT
ROM exam, however, there were no associated motor findings and  the  CI  had
normal posture and gait.  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
that were  reflected  in  the  permanent  profile  or  the  NMA.   No  motor
impairment  was  recorded  that  can  be  linked  to  significant   physical
impairment.  Since no evidence  of  functional  impairment  exists  in  this
case, the Board cannot support a recommendation for additional rating  based
on nerve impairment.  All  evidence  considered,  there  is  not  reasonable
doubt in the CI’s favor supporting  a  change  from  the  PEB’s  20%  rating
decision for the degenerative disk disease condition.

Other PEB Conditions.  The condition of low back pain was adjudicated  as  a
related  Category  2  diagnosis.   The  pain  component  of  the  CI’s  back
condition is subsumed  in  the  General  Rating  Formula  for  Diseases  and
Injuries of the Spine and  was  included  in  the  overall  rating  for  the
unfitting degenerative disk disease condition as discussed above.

Remaining Conditions.  The conditions of  tinnitus,  right  ankle  pain  and
right knee tendonitis were noted in  the  VA  rating  decision  proximal  to
separation.  Several additional non-acute conditions or  medical  complaints
were also documented at  the  MEB  history  and  physical.   None  of  these
conditions were significantly clinically  or  occupationally  active  during
the MEB period,  none  were  the  basis  for  limited  duty  and  none  were
implicated in the non medical assessment.  These  conditions  were  reviewed
by the action officer and considered by the Board.  It was  determined  that
none could be argued as unfitting and subject  to  separation  rating.   The
Board, therefore, has no reasonable basis for  recommending  any  additional
unfitting conditions for separation 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 degenerative  disk  disease  condition  and
IAW VASRD §4.71a, the Board unanimously recommends  no  change  in  the  PEB
adjudication.  In the matter of the tinnitus, right  ankle  pain  and  right
knee tendonitis conditions or any  other  medical  conditions  eligible  for
Board consideration; the Board unanimously agrees that it  cannot  recommend
any findings of unfit for additional rating at separation.


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  |
|Degenerative Disk Disease                         |5243        |20%     |
|COMBINED    |20%     |

____________________________________________________________________________
__

The following documentary evidence was considered:

Exhibit A.  DD Form 294 dated 20101227 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans' Affairs Treatment Record




                                        XXXXXXXXXXXX
                                                                   President
                             Physical Disability Board of Review
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