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AF | PDBR | CY2012 | PD2012 01933
Original file (PD2012 01933.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xx         CASE: PD1201933
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20130618
SEPARATION DATE: 20030831


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Cpl/E-4 (0311/Rifleman) medically separated for a low back condition. The CI first complained of low back pain (LBP) in 2002 following a forced march during which he assisted another Marine. The back pain could not be rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards so he was placed on limited duty and referred for a Medical Evaluation Board (MEB). The degeneration of lumbar or lumbosacral intervertebral disc condition was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The PEB adjudicated lumbar degenerative disc disease (DDD) as unfitting and rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “When they discharged me and gave me a 10% rating, they informed me that I would have no problems rating 40% in the future. At that time they assessed a rating of 10% would be sufficient to provide for my out processing from Military Service. I was offered surgery however accepted epidermal Steroid Injections instead of surgery due to the fact that I was very young. I was concerned about the fact of having disk in my spine fused together. Currently my back still goes out from time to time and my left leg can also go numb. Additionally, I was informed by my doctor in Okinawa, Japan that I also have prominent bone spurs in my spine. I used the Department of Veterans Affairs to upgrade the status of my disability however, I was denied due to insufficient medical evidence. As a result I got frustrated and I did not pursue the matter any further.”


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; 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.

The Board acknowledges the CI’s information regarding the significant impairment with which his PEB condition continues to burden him; but, must emphasize that the Disability Evaluation System 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 Veteran Affairs, operating under a different set of laws.



RATING COMPARISON:

Service PEB – Dated 20030619
 VA* - (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Lumbar DDD
 5295 10% Retrolisthesis at L5-S1 5239 10% 20031027
No Additional MEB/PEB Entries
 Other x 3 20031016
Combined: 10%
 Combined: 10%
* Derived from VA Rating Decision (VA RD ) dated 20040303 (most proximate to the DOS)


ANALYSIS SUMMARY:

Low Back (Lumbar Degenerative Disc Disease) Condition. The narrative summary notes the CI experienced back pain after lifting a heavy weight during a long march in June 2002. He experienced localized LBP with occasional radiation to the left leg, with some numbness and tingling. Lumbar spine X-rays showed DDD at L5-S1. Lumbar magnetic resonance imaging (MRI) dated 15 May 2002 showed a bone spur at L5-S1 without spinal canal stenosis or nerve root encroachment. A neurosurgical consult in July 2002 diagnosed mechanical LBP and recommended non-surgical treatment. The CI’s LBP persisted despite conservative treatment and he was referred for a second neurosurgical opinion. At the evaluation the CI reported intermittent LBP with occasional left leg numbness and tingling. The lumbar spine exam was normal except for noted “limited flexion and extension.” A repeat lumbar MRI reportedly showed DDD at L5-S1, with a disc herniation to the left. However, surgery was again not recommended because of no objective findings of radiculopathy. At the MEB examination performed on 9 April 2004, approximately 5 months prior to separation, the CI reported sharp, mostly midline LBP that occasionally radiated to the left back and leg, with numbness and tingling into the left thigh. Activities such as running and lifting more than 30 pounds increased the pain. The MEB physical exam noted lumbar flexion and extension caused pain. Lumbar range-of-motion (ROM) was flexion of approximately 80 degrees (normal 90) and extension of 30 (normal 30). The lumbar spine exam was otherwise unremarkable with no muscle spasm or tenderness to palpation noted, and normal sensation, strength, and reflexes. On the DD Form 2807 medical history the CI noted he was taking no medications.

At the VA Compensation and Pension (C&P) examination performed on 27 October 2003, approximately 2 months after separation, the CI reported having some central LBP pain all the time that was aggravated by prolonged sitting, standing, or walking, with occasional radiation to the left leg. He reported not taking any medications. There was no history of any muscle weakness, sensory changes or other neurological problems. The VA exam noted normal gait and balance. The examiner noted lumber ROM was normal; the CI was slow on forward bending; but was “able to almost touch the floor with his fingertips.” No pain with motion or muscle spasm was noted. Lower extremity sensation, strength, reflexes and straight leg raise were normal bilaterally. Lumbar X-rays showed normal spinal alignment except for a noted minimal retrolithesis at L5-S1.

The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the lumbar DDD condition as 5295 (lumbosacral strain) at 10%. In March 2004 the VA coded it as 5239 (spondylolisthesis or segmental instability) at 10% in accordance with current VA disability rating guidelines for the spine, effective 26 September 2003. The Board must recommend a disability rating in accordance with VA rating guidelines in effect on the date of the CI’s separation and the Board did so. The Board deliberated the rating of the CI’s lumbar DDD condition. Records support that at the time of separation the CI was experiencing LBP pain with occasional pain, numbness and tingling in the left leg. The MEB and C&P exams both noted nearly normal lumbar ROM with normal sensation, strength, and reflexes in the lower extremities. The MEB exam noted painful motion with flexion and extension and the VA exam noted the CI moved slowly when flexing his back. Neither exam noted the presence of lumbar muscle spasm. The Board agreed that this met the 10% rating IAW VASRD §4.71a, coded as 5295 for “characteristic pain on motion.” There was no evidence of ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication. The Board considered a rating based under 5293, but this was not applicable in the absence of documentation of any incapacitation in the record. 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 back 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 DDD 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 Disc Disease
 5295 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121107, 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 11 Sep 13

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



         xx
         Assistant General Counsel
         (Manpower & Reserve Affairs)

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