DEPARTMENT  OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
720 KENNON STREET SE STE 309
WASHINGTON  NAVY  YARD  DC 20374-5023

IN REPLY REFER TO

1850
CORB:003
12 Feb 20

From: To:

Subj: Ref:

Director, Secretary of the Navy Council of Review Boards 
  PD-2017-00152

PHYSICAL DISABILITY BOARD OF REVIEW  (PDBR)

(a) DoDI 6040.44
(b)	PDBR ltr of 21 Sep 18

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy for appropriate
·action.

2.	On 31 January 2020, the Assistant Secretary of the Navy took action in your case by accepting the correct recommendation of the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Physical Evaluation Board from 20 to 40 percent with assignment to the Permanent Disability Retired List.

3.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, was sent to the office of the Deputy Commandant, Manpower and Reserve Affairs, for correction of your records as stated above.	You will be notified once those changes are complete.

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00152
BRANCH OF SERVICE:  Marine Corps	SEPARATION DATE:  20041031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Weather Observer, medically separated for “degenerative disc disease [DDD] status post lumbar fusion” with a disability rating of 20%.  

CI CONTENTION:  In addition to his back condition, the CI requested review of an additional condition not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned to those conditions determined by the PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the MEB, but determined by the PEB to be not unfitting or non-compensable.  Any conditions outside the panel’s defined scope of review, and any contention not requested in this application, may remain eligible for future consideration by the Board for Correction of Military Records.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for the unfitting medical condition(s) at the time of separation.  The panel has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions; that role and authority is granted by Congress to the Department of Veterans Affairs, which operates under a different set of laws.  The panel gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of disability at the time of separation.

RATING COMPARISON:

SERVICE PEB - 20040830	VARD - 20050121	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DDD S/P Lumbar Fusion	5237	20%	Lumbar Spine Post-Operative Residuals	5243-5241	40% 	20040805 	
Lumbar Stenosis with Resultant Discogenic Back Pain	Cat II					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

DDD S/P Lumbar Fusion.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent an L3-L5 multilevel lumbar fusion and decompression in February 2004.  

The 28 June 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of constant throbbing back pain with occasional numbness and tingling in his feet.  Physical examination showed normal gait, reflexes, and sensation, but there was tenderness.  There was “restricted” range of motion (ROM) due to pain.  During the 13 July 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported back pain with numbness and tingling.  Physical examination showed “decreased ROM with forward flexion to the mid-thigh” (somewhere less than 45 degrees) and extension to 5 degrees; painful motion was not addressed.  

At the 5 August 2004 VA Compensation and Pension (C&P) examination, 3 months before separation, the CI reported low back pain with intermittent episodes of pain radiating to his feet and periodic numbness and tingling.  Physical examination showed normal posture and gait, but there was spinal tenderness and muscle spasm.  Straight leg raise testing (for radicular signs) was positive bilaterally and there was radiation of pain on movement of his lower back.  Lower extremity motor strength, sensation, and reflexes were normal.  Thoracolumbar ROM was flexion to 15 degrees limited by pain and combined ROM was 120 degrees; painful motion was present in all planes.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5237 (lumbosacral strain).  The Navy PEB also listed “lumbar stenosis with resultant discogenic back pain” as a related Category II condition that contributed to the primary unfitting condition.  The panel agreed that the “lumbar stenosis with resultant discogenic back pain” was related to the Cat I unfitting back pain condition; and therefore, this impairment was properly subsumed under the overall rating for the back condition without violating §4.14 (pyramiding; more than one rating based on the same impairment is prohibited).  The VA rated the back condition 40%, dual coded 5243-5241 (intervertebral disc syndrome (IVDS)-spinal fusion), based on the C&P examination, citing severely limited and painful back ROM.  

The panel agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees, as reported on the VA examination and reasonably corroborated by the MEB examination’s “decreased ROM with forward flexion to the mid-thigh” and underlying fission pathology.  Additionally, the C&P ROM examination had the highest probative value because it was most proximate to separation, comprehensive, and VASRD compliant.  There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the back condition, coded 5243-5241.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 40%, coded 5243-5241 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Degenerative Disc Disease Status Post Lumbar Fusion	5243-5241	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170117, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record