RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:	CASE: PD-2017-02631
BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20090330

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Helicopter Airframe Mechanic, medically separated for “degenerative disk disease [DDD] at L4-L5, L5-S1 s/p [status post] fusion L5-S1 and L4-S1” with a disability rating of 20%.

CI CONTENTION: “Issue had gotten worse with more complications. Limited movement in legs and back.” 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 - 20081229	VARD - 20090515	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DDD	5241	20%	S/P Lumbar Fusion, L4-S1 with Scar	
5243-5237	
10%	
20090319	
L4-L5 Spondylolysis	Cat II					
Postlaminectomy Syndrome	Cat II					
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

DDD. According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition was reported as “pain in the lower back for the past year” following a neck injury that occurred while deployed in 2003. An MRI revealed DDD at L5-S1 and a small central bulging disk, and he subsequently underwent a spinal fusion of L5-S1 and L4-S1 in March 2008.

At a physical therapy visit on 23 October 2008, 5 months prior to separation, the CI’s major complaint was stiffness after being in one position for prolonged periods, and the examiner recorded flexion to 25 degrees (normal 90). At the MEB NARSUM examination 5 days later, he reported localized back pain which increased with extension, standing, bending, and driving. Physical examination showed a normal gait and modest lower thoracic spine tenderness. Straight leg raise (SLR) testing to elicit radicular symptoms was negative and muscle tone and bulk were normal as were sensation and deep tendon reflexes. Range of motion (ROM) was “limited in flexion.” A lumbar spine CT showed well-placed intact hardware from L4-S1 and adequate bone graft healing. Lumbar spine flexion and extension films showed no instability.

At the 19 March 2009 VA Compensation and Pension (C&P) examination, 2 weeks before separation, the CI reported symptoms of stiffness and numbness. Pain was located in the back and was intermittent (3 times a day, lasting up to one hour). He was able to function without medication and had no incapacitating episodes in the previous 12 months. Physical examination showed normal gait and posture with no evidence of muscle spasm, tenderness, or radiation of pain, and negative SLR tests bilaterally. Lumbar ROM revealed pain-limited flexion to 70 degrees, and remaining ROM measurements within normal limits. After repetition, there was evidence of pain, fatigue, and lack of endurance, with no additional limitation in degrees. The VA examiner noted no evidence of intervertebral disk syndrome (IVDS) with nerve root involvement at the examination. Lumbar spine X-rays showed posterior spinal fusion with intact hardware.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the low back condition 20%, coded 5241 (spinal fusion), and listed “postlaminectomy syndrome” and “L4-L5 spondylolysis” as Category II conditions (contribute to the primary unfitting condition but not separately ratable). In this case, these diagnoses were aspects of the same disability and not separately unfitting or ratable IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited). The VA rated the low back condition 10%, analogously coded 5243-5237 (IVDS-lumbosacral strain), based on the C&P examination, and citing evidence showing painful motion, limitation of motion as a result of pain, and thoracolumbar forward flexion greater than 60 degrees but not greater than 85 degrees. Panel members agreed that a 10% rating was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as reported on the VA examination, which was closest to separation. There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis. There was no evidence to support a rating higher, and IAW DoDI 6040.44, the panel may not recommend a rating lower than that adjudicated by the PEB. 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 §4.71, 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:

DEPARTMENT   OF   THE    NAVY SECRETARY OF 11-{E NAVY co�:CIL OF REVIEW BOARDS
720  ,:n;-:;QN  STREET  SE  STE  309
WASHINGTON NAVY YARD, DC 20374-5023

1850
CORB: 003
10 Sep 20

From: Director, Secretary of the Navy Council of Review Boards To:

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) Ref:	(a) DoDI 6040.44
1.	

Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department ofthe Navy on 13 Aug 2020 for appropriate action.

2.	

On 27 August 2020, the Assistant Secretary ofthe Navy (Manpower & Reserve Affairs) accepted the recommendation ofthe PDBR ofno change to your characterization ofseparation or disability rating assigned by the Department ofthe 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 ofNaval Records.