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AF | PDBR | CY2012 | PD2012 01457
Original file (PD2012 01457.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XX         CASE: PD1201457
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20130509
SEPARATION DATE: 20011231


SUMMARY OF CASE: Data extracted from the available evidence of record reflect that this covered individual (CI) was an active duty SGT/E-5 (6317/Aircraft Communications/Navigation Radar Systems Technician, F/A-18) medically separated for a low back condition. Since 1998, the CI had recurrent episodes of lower back pain secondary to strenuous physical activities and an injury due to a fall from a static aircraft (landing on his buttocks). He was initially diagnosed as having a strain and mechanical lower back pain, but was later found to have disc herniation on a magnetic resonance imaging (MRI) scan. He underwent multiple non-surgical treatments; however the CI’s 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 and referred for a Medical Evaluation Board (MEB). The low back condition, characterized as “diffuse disk changes and facet degenerative joint disease” was forwarded to the Informal Physical Evaluation Board (IPEB). The MEB also identified and forwarded four other diagnoses – related to the primary low back condition (see rating chart below) for IPEB adjudication. The IPEB found the CI fit for duty. The CI requested a reconsideration of the IPEB findings after which the IPEB found the CI unfit for his low back condition, rated 10%. The IPEB also found the CI to have asymptomatic thoracic scoliosis, which it determined to have existed prior to service. Finally, the IPEB determined the remaining related back conditions to be Category II, contributing to the unfit lower back condition. The CI then requested a formal hearing. The Formal PEB (FPEB) affirmed the later findings of the IPEB, but changed the thoracic scoliosis condition to Category III, not unfitting. The CI made no further appeals, and was medically separated with a 10% disability rating.


CI CONTENTION: “The pain and condition in my back is severe enough to where I need regular steroid injections… I have had to pay for these out-of-pocket. Also, I lost employment with a previous employer due to limitations from my injury.”


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 as well as the Category II conditions as noted. Given the CI’s contention, the Category III thoracic scoliosis condition is within the purview of the board and is addressed as well. 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 respective Service Board for Correction of Naval Records.








RATING COMPARISON:

Service FPEB – Dated 20010829
 VA - (8 Mos. Post-Separation)*
Condition
 Code Rating Condition Code Rating Exam
Diffuse Disk Changes and Facet Degenerative Joint Disease
 5295 10% Degenerative Disc Disease, Lumbar Spine 5293 0%** 20020814
Disk Dehydration without Loss of Disk Height at L4-5
 Cat II
Disk Dehydration with Loss of Disk Height at L5-S1
 Cat II
Herniated Disk at the L3-4 Level
 Cat II
L4-5 Herniated Disk, Central Right Paramedian Associated with Annulus Tear and Moderate Central Spinal Stenosis
 Cat II
Thoracic Scoliosis, Asymptomatic
 Cat III
No Additional MEB/PEB Entries
 Other x 14 20080812
Combined: 10%
 Combined: 0%
* Derived from VA Rating Decision (VA RD ) dated 200 21007 (most proximate to date of separation [ DOS ] ).
** Decision Review Officer (DRO) decision 20030602 increased 5293 (degenerative disc disease, lumbar spine) to 40% from 20020101 citing incapacitating episodes , based on treatment records at VA (within 12 months post separation ).


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him, but must emphasize that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code). Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Low Back Condition. The CI incurred a contusion to the tailbone and buttocks in a fall off a static aircraft in January 1998. The CI sought care on 7 July 2000 for a one week history of low back pain (LBP) without antecedent trauma, and the CI received a diagnosis of back strain. The CI was treated with physical therapy, medications, and activity restriction, which led to some improvement in his discomfort. Another provider visit on 14 November 2000 reported chronic LBP “for some years,” related to heavy equipment work; there were no radicular symptoms/findings, range-of-motion (ROM) loss, or sensory/motor deficits. The CI was again treated with multiple conservative measures, but continued to be bothered by LBP, worsened with movement and prolonged sitting/standing. Several physical therapy and orthopedic evaluations carried out in 2000 demonstrated essentially normal examination findings including normal strength, reflexes, sensation and negative straight leg-raising (SLR) for radicular signs. The MEB narrative summary (NARSUM), 29 December 2000, noted that the CI reported ongoing LBP, without any radicular symptoms. MEB physical exam demonstrated scoliosis, but no tenderness to palpation, spasm, restriction of motion, or neurologic compromise. There was “mild degree of pain with extension and rotation of the back.” The NARSUM noted that a recent MRI showed multi-level degenerative disc disease (DDD) of the lumbar spine, with some bulging and canal stenosis, but no focal herniation or nerve root impingement. The IPEB,
24 April 2001, determined the CI to be fit and recommended return to duty. The CI disagreed and demanded a FPEB. A physical therapy evaluation of 3 July 2001 documented normal gait, no restriction of spine motion (flexion reaching finger tips to the floor, extension 20 degrees, and lateral flexion normal), and normal strength, reflexes and sensation. SLR was negative for radicular signs. The Formal PEB 29 August 2001 determined the back pain condition to be unfitting rated 10%. A medical evaluation performed on 20 December 2001, 11 days prior to separation, showed full ROM, without any significant findings. At the VA Compensation and Pension (C&P) exam performed 14 August 2002, 8 months post separation, the CI reported ongoing LBP, rated 5 out of 10, with some radiation to the left leg. The CI had not had any significant exacerbations, did not require facet injections, surgery, or use of assistive devices for ambulation, and was able to carry out his usual activities, although with frequent discomfort. There was no indication of gait disturbance, spasm, or tenderness on palpation. Spinal contour was normal, except for scoliosis as previously noted. ROM was within the normal range (flexion 115 degrees, extension 25 degrees, lateral bending 25 degrees to both sides, left rotation 35 degrees and right rotation 40 degrees). There were no sensory or motor deficits and SLR was negative for radicular signs. Subsequent multiple VA physical therapy records ranging to the end of 2002, within the 12-month window specified in DoDI 6040.44 regarding VA evaluations for Board consideration, did not demonstrate any deterioration in the CI’s condition, although the Board noted that the CI continued to have ongoing low back pain that was being treated with non-steroidal anti-inflammatory medication and other modalities.

The Board directs attention to its rating recommendation based on the above evidence. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the Veterans Affairs Schedule of Rating Disabilities (VASRD) in effect at the time of separation. The Board notes that the 2001 VASRD standards for the spine, which were in effect at the time of separation, were modified in September 2002 and changed again to the current §4.71a rating standards in 2004. The Board must correlate the above clinical data with the 2001 rating schedule (applicable diagnostic codes include: 5292 limitation of lumbar spine motion; 5293 intervertebral disc syndrome; and 5295 lumbosacral strain). The PEB rated the CI’s condition at 10%, citing absence of positive exam findings (except scoliosis, which was not deemed to be an unfitting condition), and pain on motion consistent with rating using the lumbar strain code 5295. In its original 2002 decision, the Department of Veterans Affairs (DVA) rated the condition at 0%, citing no evidence of pain or other findings on exam (coded 5293). The Board considered the rating under the code 5295, lumbosacral strain. All members agreed that there was characteristic pain on motion supporting the 10% rating adjudicated by the PEB. Board members concurred that the evidence did not support the 20% or higher ratings under this code. There was no loss of lateral spine motion (recorded as normal on an exam 20 December 2001, 11 days prior to separation). There was also no documented muscle spasm on forward bending, or gait irregularity. The Board therefore concluded that the 10% rating was appropriate under this code. The Board further considered whether a higher rating was warranted under the guidelines for intervertebral disc syndrome, code 5293. At the time of separation, the 5293 rating guidelines were based on severity and frequency of symptoms. The Board acknowledged that the CI had intervertebral disc disease with chronic pain and some radicular symptoms, but without objective neurologic findings. Board members agreed the absence of objective neurologic findings did not support the 60% rating under the 5293 diagnostic code. The Board deliberated whether the CI’s back condition more nearly approximated mild (10%), moderate with recurring attacks (20%), or severe with recurring attacks with little intermittent relief (40%). There was no documentation in the service treatment record (STR) or the VA records in the year following separation to indicate that the CI was treated for moderate or severe exacerbation of his chronic LBP. Board members concluded that using the guidelines under 5293, the CI’s back condition more nearly approximated the mild rating (10%). The Board considered the VA's rating of 40% under 5293, but based on the foregoing discussion, the Board did not find sufficient evidence to support consideration of a higher rating. The Board also considered the rating under the VASRD diagnostic code 5292 in effect at the time of the CI separation. The Board agreed that the essentially normal ROM documented in the MEB NARSUM and several other examinations performed in the months prior to separation did not support a 10%, let alone higher, rating under the VASRD diagnostic code 5292 in effect during the PEB process. All four Category II conditions noted by the PEB constituted various components of the CI’s lumbar DDD, already captured by the 5295 code, and would therefore not be considered separately ratable under VASRD §4.14 (avoidance of pyramiding). All Board members agreed the asymptomatic thoracic scoliosis was not unfitting. 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 LBP 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 LBP condition, 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
Chronic Low Back Pain with Degenerative Disc Disease
 5295 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120813, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         XX
         Director of Operations
         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 12 Jun 13

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandum, 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:
- x former USMC
- x former USN
- x former USMC
- x former USMC
- x former USMC
- x former USMC
- x former USMC
- x former USN



                                                      xx
                                            Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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