IN REPLY REFER TO

12 Feb 20

From: To:

Director, Secretary of the Navy Council of Review Boards 
PD-2017-02024 

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr of 22 Feb 19

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 Oto	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 Navy Personnel Command 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:  XXXXXXXXXX	CASE: PD-2017-02024
BRANCH OF SERVICE:  NAVY	SEPARATION DATE: 20050815

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, SH-60B/HH-60H System Organizational Maintenance Technician, medically separated for “chronic mechanical low back pain secondary to degeneration of the disk at L5-S1” with a disability rating of 0%.

CI CONTENTION:  “Review all conditions.”  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 Physical Evaluation Board (PEB) to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the Medical Evaluation Board (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 - 20050503	VARD - 20060505	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mechanical Low Back Pain…	5237	0%	Herniated Disc at L4-L5 Levels with Associated Left Lower Extremity Radicular Symptoms	5243	40%	20051026	
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: 70%	

ANALYSIS SUMMARY:

Chronic Mechanical Low Back Pain (LBP). According to the service treatment record and the MEB narrative summary (NARSUM), the CI’s LBP condition began in early 2002 while carrying a motor aboard ship. Spine X-rays performed on 23 September 2003 showed a transitional lumbosacral vertebra with sacralization of the right transverse process (congenital condition) with no other pathology. An MRI on 20 August 2004 revealed a far left lateral disc protrusion at the L4-5 level which  was  in  contact  with  the  exiting  L4  nerve  root.    Treatments  with  physical   therapy,

chiropractic, activity modification, electrical stimulation, nerve root injections, and epidural steroid injections (ESI) did not provide lasting relief, and surgery was not indicated at the time.

The 18 February 2005 MEB NARSUM examination, 6 months prior to separation, noted complaints of progressively increasing LBP with intermittent episodes of pain radiating to the left leg and foot. The CI reported “60%” improvement with ESI, but symptoms worsened with prolonged sitting or driving. Physical examination showed lumbar spine range of motion (ROM) measurements of flexion to 90 degrees (normal), extension to 10 degrees (normal 30), and right and left lateral flexion to 10 degrees (normal 30) [combined greater than 115 and less than 185 of normal 240]. An MRI was reported as showing L5-S1 disc degeneration, but the examiner did not comment on gait, painful or pain-limited motion, tenderness, spasm, contour, or any additional limitation after repetition. During the 13 April 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported back pain with left sciatica. The examiner noted decreased, guarded spine ROM, but did not quantify measurements.

The 19 May 2005 pain management evaluation, 3 months before separation, noted complaints of increased back pain rated up to 9/10, following good relief from an ESI on 25 January 2005. Left leg radiating pain had returned, and the CI was taking narcotic pain medication. Back flexion was 30 degrees, and extension was 10 degrees, both with pain. The specialist assessed that discogram was not indicated and the CI had a herniated disc at left L4 contacting the nerve root.

At the 26 October 2005 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported continued LBP. Physical examination showed the CI’s gait as markedly abnormal and very slow with equal distribution on both sides, but in a very guarded fashion. There was back tenderness, and ROM was recorded as “flexion of his lumbar spine at 25 degrees, further limited by pain,” with combined ROM of 110 degrees. Pain was the predominant factor IAW DeLuca (repetition). Remote VA records indicated the CI underwent back surgery (hemilaminotomies and subtotal facetectomy) on 9 January 2007 (17 months after separation).

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the low back condition 0%, coded 5237 (lumbar strain). The VA rated the low back condition 40%, coded 5243 (intervertebral disc syndrome (IVDS)), based on the C&P examination 2 months after separation, citing “loss of motion in forward flexion to 25 degrees with objective evidence of pain on motion.” Members deliberated over the probative value of the somewhat disparate examinations in evidence. Both the NARSUM and C&P ROM measurements indicated lumbar rather than thoracolumbar ROM. However, the C&P examination was closest to separation, included DeLuca criteria and gait assessment, and aligned with the pre-separation pain management ROMs. Thus, the panel adjudged it to have the highest probative value for rating at separation, and agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees, as reported on the pain management and VA examinations. Radiating pain from the back condition is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” 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 low back condition, coded 5237-5243.

BOARD FINDINGS: In the matter of the low back condition, the panel recommends a disability rating of 40%, coded 5237-5243 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	
Chronic Mechanical Low Back Pain Secondary to Degeneration of the Disc at L4-S1	5237-5243	40%	

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20170308, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record