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:

Director, Secretary of the Navy Council of Review Boards 
PD-2017-01065 

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr dtd 17 Feb 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy of 15 October 2019 for appropriate action.

2.	On 31 January 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR of no change to your characterization of separation or disability rating assigned by the Department of the Navy's Physical Evaluation Board.

3.	The Secretary's decision on your PDBR application is final and is not subject to appeal or additional review by the Board for Correction of Naval Records.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-01065 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20060531

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Hygiene Equipment Operator, medically separated for “low back pain” with a disability rating of 20%.

CI CONTENTION:  “My disability is becoming more painful as I age.  Within the last year the pain I have in my (l) leg and lower back has progressed to my neck and head.” Review also requested of additional conditions 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 - 20060327	VARD – 20070322	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5243	20%	Multilevel Degenerative Disc Disease w/ HNP, L5-S1…	5243	20%	
20060609	
Herniated Nucleus Pulposus [HNP], L5-S1, w/ Radiculopathy	Cat II	L5-S1 Radiculopathy…Left Leg	8520	10%		
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 70%	
	
ANALYSIS SUMMARY:

Low Back Pain (LBP). According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s LBP began in March 1995 after stepping in a hole while running. Despite long-term conservative treatment, the pain continued and progressed into pain and altered sensation in the left lower extremity.  An MRI demonstrated chronic disc   displacement

with effacement of the left L5 nerve root resulting in a moderate to high grade central spinal canal  stenosis.  Additionally,  there was a  broad-based  disc  bulge  at  spinal  level  L3-L4.   The 1 February 2006 MEB NARSUM examination, 4 months prior to separation, noted CI complaints of LBP aggravated by bending, sitting, standing, or lying flat, and relieved by rest or anti- inflammatory medication. Physical examination revealed normal flexion, extension, and lateral bending of the thoracolumbar spine in both directions. The CI was able to heel and toe walk without any difficulty, there was no tenderness, and straight leg raise (SLR) testing was negative. Spinal rotation, gait description, as well as the presence of painful motion or spasms were not addressed.  Lower extremity strength and reflexes were normal.

At the 9 June 2006 VA Compensation and Pension (C&P) examination, 1 week after separation, the CI reported LBP that did not impede activities of daily living unless the pain flared, in which case, even mild walking was difficult. The examiner noted a normal gait and spinal curvature, and recorded flexion to 45 degrees (normal 90) and a combined range of motion (ROM) of 185 degrees (normal 240) “…with pain.” There was minimal decreased strength documented in the motion of the left knee and ankle at 4/5, “…otherwise, strength in the lower extremities is 5/5.” Sensation (pinprick) was decreased in the left anterior thigh, lateral leg and extending into the top of the left foot.

The panel directed attention to its rating recommendation based on the above evidence. Both the PEB and VA rated the low back condition 20%, coded 5243 (intervertebral disc syndrome [(IVDS]). Members first agreed that the greatest degree of probative value be apportioned to the C&P examination due to its in-depth clinical detail as well as proximity to separation. The panel adjudged that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees). 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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.

HNP L5-S1, With Radiculopathy. The PEB listed “herniated nucleus pulposus, with radiculopathy” as a related Category II condition (related/contributes to primary unfitting condition but not separately ratable). The MEB NARSUM physical examination revealed negative testing for nerve root impingement and the CI was able to heel/toe walk without difficulty. Peripheral strength and reflexes were normal, but sensation was decreased along the outside aspect of the left leg, thigh, and toes. During the 15 February 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), the examiner noted normal sensory and motor components of the lower extremities, with active and symmetrical peripheral reflexes.

At the C&P examination, the CI reported radiating LBP with left foot drop causing ankle and foot drag. Physical examination revealed a non-antalgic gait and normal lower extremity peripheral strength, with the exception of 4/5 strength for left knee flexion, extension and left ankle dorsiflexion. Reflexes remained symmetrical. Sensation was decreased down the left mid- anterior and posterior thigh, and into the lateral aspect of the lower leg and dorsal/lateral foot.

The panel members carefully considered both the pre- and (more probative) post-separation examinations and agreed there was not a preponderance of evidence to overcome the PEB’s consideration of a separately unfitting condition. Therefore, the panel considered the appropriate VASRD rating for the unfitting radiculopathy. Prior X-ray findings correlated well with the area of peripheral sensory deficits of the lower leg and clearly indicated pathology originating from the L5-S1 spinal nerve components. Such distal abnormal sensory deficits from that spinal level were anatomically best attributed to both the superficial and deep peroneal nerves. The VASRD ratings for either of the involved nerves is 0% for “mild,” 10% for “moderate” and 20% for “severe” impairment.          After due deliberation, considering all the evidence and

mindful of VASRD §4.3, the panel concluded that although the sensory deficit was present in the left lower extremity, the CI’s maintenance of a normal gait and near normal strength would not support an impairment greater than that of “mild” for a 0% rating, coded 8522 (superficial peroneal nerve; incomplete paralysis).

BOARD FINDINGS: In the matter of the low back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the herniated nucleus pulposus, L5-S1, with radiculopathy, the panel recommends a disability rating of 0%, coded 8522 IAW VASRD §4.124a. There are no other conditions within the panel’s scope of review for consideration. As the proposed new combined disability ratings result in no change to the disability rating previously assigned, the panel recommends no modification or re- characterization of the CI’s disability and separation determination.

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5243	20%	
HNP, L5-S1, w/ radiculopathy	8522	0%	
	COMBINED	20%