RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:	CASE: PD-2017-02763
BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20060510

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Machinist's Mates, medically separated for “radiculopathy” with disability rating of 20%.

CI CONTENTION: The rating should have been higher. 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 - 20060131	VARD - 20060531	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Radiculopathy	5241-8720	20%	
Degenerative Disc Disease, Lumbar Spine, Status Post Transforaminal Lumbar Interbody Fusion	
5242	
20%	
20060217	
Lumbar Disc Degeneration	Cat II					
Status Post Lumbar Interbody Fusion	Cat II					
Low Back Pain	Cat II					
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 20%	

ANALYSIS SUMMARY:

Radiculopathy. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back pain returned in March 2005 after a previous operation in 1998, with extension of symptoms into his right lower extremity. Conservative treatments, consisting of physical therapy (PT), water therapy, medications and activity modification, did not provide relief, and on 20 September 2005, he underwent a second operation to include a spinal

decompression and a segmental lumbar fusion. The 21 December 2005 MEB NARSUM examination, 5 months prior to separation, noted CI complaints of continued severe low back pain with intermittent extension into the right buttock and back of the right thigh. The physical examination (PE) revealed a normal gait and lumbar spine tenderness. Thoracolumbar range of motion (ROM) showed forward flexion to 90 degrees (normal), but decreased ROM in all other directional components for a combined ROM of 150 degrees (normal 240). There was slightly decreased right lower extremity strength (4/5) compared to the left (5/5), and peripheral sensation was intact. Spinal X-rays revealed significant lumbosacral degenerative changes, and the diagnoses was lumbar disc degeneration, low back pain, and radiculopathy.

At the 17 February 2006 VA Compensation and Pension (C&P) examination, 3 months before separation, the CI reported low back pain and weakness upon maneuvering stairs, bending or rising from a sitting position. There was no comment with regard to adverse symptoms extending outside of the back, but he endorsed the inability to run or perform pull-ups or sit-ups. He denied any incapacitating episodes over the last 12 months or having lost time from work. The PE revealed lumbar muscular tenderness as well as painful thoracolumbar spine motion with flexion to 50 degrees and a combined ROM of 125 degrees. The ability to ambulate on his heels or tiptoes was preserved, and spinal function was not additionally limited by pain, fatigue, weakness or lack of endurance following repetitive use or during the flare-ups.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the radiculopathy 20%, dual coded 5241-8720 (spinal fusion-neuralgia, sciatic nerve). The PEB also listed lumbar disc degeneration, status post lumbar inter-body fusion and low back pain conditions as related diagnoses (Category II) contributing to the disability in this case. The VA rated the low back pain condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing VASRD spinal impairment criteria. Panel members carefully reviewed the chronological dates of the CI’s surgeries, and after comparing their associations to worsening of physical symptoms, concluded that this case was very consistent with post-surgical scarring, with such findings medically plausible and expected, especially after a second revisional surgical procedure. After extensively discussing all the conditions listed by the PEB, the panel agreed that given a normal gait and peripheral sensation as well as motor function (evidenced by performing heel and toe walk), coupled with the absence of either subjective complaints or adverse objective peripheral findings, the radiculopathy symptoms would not support a positive rating impairment. After due deliberation, considering all the evidence and mindful of VASRD
§4.3 (reasonable doubt), the panel recommends a disability rating of 0% for the radiculopathy, coded 5241-8720.

Panel members then assessed whether any of the PEB’s listed Category II conditions could be reasonably justified as separately unfitting for rating consideration. The panel’s threshold for such determinations is reasonably unfitting and remains adherent to the DoDI 6040.44 “fair and equitable” standard. Panel members agreed that the Category II condition of “low back pain”’ was reasonably justified as separately unfitting given the limited spinal flexion to 50 degrees nearest to the time of separation, and that the lumbar disc degeneration and status post lumbar interbody fusion conditions were properly subsumed under the low back pain condition. After due deliberation, the panel agreed that the preponderance of evidence with regard to the functional impairment of the low back condition favors its recommendation as an additionally unfitting condition which meets the VASRD §4.71a impairment criteria for a 20% rating, coded 5241. However, because neither the PEB’s rating nor panel’s combined recommendation was higher than 20%, there was no additional benefit to recommending a change to the PEB’s original adjudication.

BOARD FINDINGS: In the matter of the radiculopathy, the panel recommends a disability rating of 0%, coded 5241-8720 IAW VASRD §4.71a and §4.124a. In the matter of the contended low back pain condition, the panel agrees it was unfitting and recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a. In the matter of the contended lumbar disc degeneration and status post lumbar interbody fusion, the panel recommends no change from the PEB determinations as Category II conditions. There were no other conditions within the panel’s scope of review for consideration. However, as previously stated, having no additional rating benefit to the CI, the panel’s final recommendation is for no modification or re-characterization of the disability and separation determination.

The following documentary evidence was considered:

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
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 of the Navy on 13 Aug 2020 for appropriate action.

2.	On 27 August 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.