RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-02715 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20070115

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E6, Radio Operator, medically separated for “multiple-level cervical degenerative disc disease [DDD]” and “lumbar DDD,” rated 20% and 0%, respectively, with a combined disability rating of 20%.

CI CONTENTION: The conditions have worsened and negatively affect activities of daily living. The CI also requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) was requested. 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 - 20060822	VARD - 20071003	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Multiple-Level Cervical DDD	5299-5237	20%	Cervical DDD	5243	20%	20070824	
Lumbar DDD	5299-5237	0%	Lumbar DDD	5257	10%		
Anxiety Disorder	CAT III	Mild Mood Disorder	9435	30%	20070916	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:

Multiple-Level Cervical DDD. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s neck condition began in December 2004 after an armor plate from a 7-ton truck fell on his head (he was not wearing a helmet). Radiographic studies in December 2005 showed “slight bulges posterior C5-6, and less so at C4-5 and C6-7, but no impingement.”

The 13 April 2006 MEB NARSUM examination, 9 months prior to separation, noted complaints of significant pain and easy fatigability in the neck area, and pain that radiated from his left trapezius to the wrist. He was unable to carry a radio or wear a flak jacket or helmet. Physical examination showed normal lordosis, but there was tenderness. His range of motion (ROM) was described as able to flex to his chest (indicating normal flexion), full upward gaze (indicating normal extension), left and right rotation at approximately 60 degrees in each direction (normal 80), and right and left bending at 45 degrees each (normal). Provocative tests for cervical radiculopathy were negative. At the 11 August 2006 orthopedics examination, 5 months prior to separation, the CI complained of moderate pain (no specified area) rated 6/10. Physical examination noted normal cervical spine appearance. The ROM study showed 20 degrees of flexion and 150 degrees of combined ROM. There was no annotation with regard to any other ratable comments.

During the 24 August 2007 VA Compensation and Pension (C&P) examination, 7 months after separation, the CI reported constant pain, rated 5-8/10, at the top left of the occipital region radiating to the left shoulder and trapezius. The pain flared during periods of increased activity. Physical examination showed a smooth gait; however, there was cervical flattening, but no spasm or tenderness. Strength and sensation were normal. ROM testing showed forward flexion of 45 degrees (normal) and combined ROM of 155 degrees (normal 340).

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the neck condition 20%, analogously coded 5237 (cervical strain), citing limitation of flexion. The VA rated the neck condition 20%, coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing combined ROM of the cervical spine not greater than 170 degrees. The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 15 degrees but not greater than 30 degrees) and/or combined ROM (not greater than 170 degrees) as reported on the orthopedics and VA examinations. There was no evidence of intervertebral disc syndrome (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 neck condition.

Lumbar DDD. According to the STR and MEB NARSUM, the CI’s back condition began in December 2004 after the incident related previously. Radiographic studies of the thoracic and lumbar spine in December 2005 revealed mild dehydration and degeneration of the L4-5 intervertebral disc space, but no encroachment of the thecal sac or nerve roots. The MEB NARSUM examination noted complaints of significant mid-to-low back pain with easy fatigability. Physical examination showed tenderness and the ROM study showed 75 degrees of flexion (normal 90) and 220 degrees of combined ROM (normal 240). There was pain on right rotation.

At the 2 May 2006 chiropractic appointment, 8 months prior to separation, the CI complained of 6-9/10 back pain that affected his activities of daily living. The pain worsened with prolonged standing and sitting. The dorsolumbar (non-VASRD) ROM examination showed pain limited flexion of 45 degrees and 20 degrees of extension and right and left lateral bending. Physical examination showed diffuse back tenderness. At the 11 August 2006 orthopedics examination, 5 months prior to separation, the CI complained of moderate pain (no specified area), rated 6/10. Physical examination noted normal thoracolumbar spine appearance. The ROM study showed 30 degrees of flexion and 85 degrees of combined ROM. There was no annotation with regard to any other ratable comments.

At the C&P examination the CI complained of constant sharp pain rated 5-8/10 and radiating to the left shoulder. Physical examination showed a smoot gait without spasm or tenderness, and strength and sensation were normal. ROM testing showed 90 degrees of flexion (with pain in the left sacroiliac joint) and combined ROM of 240 degrees.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 0%, analogously coded 5237 (lumbosacral or cervical strain), citing no abnormal findings on physical examination other than a recent complaint of back stiffness. The VA rated the back condition 10%, coded 5010-5243 (traumatic arthritis and IVDS), based on the C&P examination, citing painful or limited movement of a major joint. The panel agreed that a 10% rating was warranted for satisfactory evidence of painful motion as documented on the preponderance of examinations, or for limited motion noted on the single examination not addressing painful motion. The panel deliberated the probative value of the ROM examinations in evidence noting that although the chiropractic ROM might support the higher 20% rating, the non-standard measurements decreased the probative value of the flexion measurement. While the orthopedic evaluation reflected back ROMs which could support a higher evaluation, it was considered an outlier and was not representative of the CI’s disability picture at 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 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 10% for the back condition, coded 5299-5237

Contended PEB Condition: Anxiety Disorder, NOS. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting. The contended condition was not noted on limited duty forms, implicated in the commander’s non-medical assessment or judged to fail retention standards. There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation. After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the neck condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the back condition, the panel recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a. In the matter of the contended anxiety disorder, the panel recommends no change from the PEB determinations as not unfitting. 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	
Multiple-Level Cervical Degenerative Disc Disease	5299-5237	20%	
Lumbar Degenerative Disc Disease	5299-5237	10%	
	COMBINED	30%	

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
6040
CORB:003 14 May 21

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

Subj:	Physical Disability Board of Review Determination Ref:	(a) 6040.44(Series)
1.	The Physical Disability Board of Review (PBDR) reviewed your case in accordance with reference
(a) and forwarded their recommendation for action.

2.	On 23 April 2021 the Assistant Secretary of the Navy (Manpower and Reserve Affairs) accepted the PDBR’s recommendation of an increase in disability rating to 30% and placement on the Permanent Disability Retired List effective the date of your discharge. This decision was then sent to Navy Personnel Command for appropriate action.

3.	The PDBR determination is final and not subject to appeal or review.