IN REPLY REFER TO

12 Feb 20

From: To:

Director, Secretary of the Navy Council of Review Boards 
PD-2017-02084

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr dtd 7 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: XXXXXXXXXXXXXXXXXXXXXXXX	CASE: PD-2017-02084
BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20050331

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Engineer Equipment Operator, medically separated for “lower back pain with radicular symptoms and spasm” with a disability rating of 0%.

CI CONTENTION:  “Conflicting findings.”  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 (Medical Evaluation Board), but determined by the Physical Evaluation Board (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 - 20050131	VARD - 20050517	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lower Back Pain…	5237	0%	Residuals of Lumbosacral Strain	5237	0%	20050308	
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: 30%	

ANALYSIS SUMMARY:

Lower Back Pain. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI injured his lower back on three separate occasions: jumping out of rack to avoid a missile attack in Iraq; rear-end accident in July 2003 while on the flight line in Iraq; and a motor vehicle accident after deployment. He was treated conservatively with physical and chiropractic therapy, and surgery was not indicated. A lumbar spine MRI in February 2004 was normal.

During the 15 September 2004 MEB NARSUM examination, 7 month prior to separation, the CI reported low back pain. Physical examination revealed lumbar spine tenderness, 4/5 lower extremity motor strength, and normal reflexes. Lumbar spine flexion was 90 degrees and combined range of motion (ROM) was incomplete; painful motion not addressed.

At the 8 March 2005 VA Compensation and Pension (C&P) examination, less than 1 month before separation, the CI reported daily intermittent low back pain that lasted 2 hours approximately 10 times each day. He was able to function with medication, which decreased the pain. He reported he lost about 11 work days during the past year due to the problem. Physical examination showed a normal gait and posture without spinal tenderness or spasm. There was no radiating pain with movement. Thoracolumbar spine flexion was 90 degrees (normal) and combined ROM was 240 (normal). Painful motion was absent. There was no additional loss of ROM due to pain, weakness, incoordination or lack of endurance after repetition.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the low back condition 0%, coded 5237 (lumbosacral strain). The VA also rated the low back condition 0%, coded 5237, based on the C&P examination, citing a non-compensable evaluation unless forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees. Members agreed the VA examination was more proximal to separation, detailed and complete and therefore, more probative. The panel agreed there was no limitation of thoracolumbar spine motion or painful motion (VASRD §4.59) evidence, proximate to separation, to support a 10% rating. There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus a higher rating was not justified on this basis. There was no documentation of intervertebral disc syndrome with incapacitating episodes that 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 low back condition.

BOARD FINDINGS: In the matter of the low back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. There are no other conditions within the panel’s scope of review for consideration. Therefore, the panel recommends no modification or re- characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20170301, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

	PD-2017-02084