RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:	CASE: PD-2017-02916
BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20060731

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Ground Communications Organizational Repairer, medically separated) for “low back pain” with a disability rating of 10%.

CI CONTENTION: “Continued care, pain management, E.D, and employment effected by spinal condition.” 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 - 20060602	VARD - 20070424	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5243	10%	Status Post Insertion of Disc Space Prosthesis of L4-5	5299-5237	20%	20070111	
Status Post Artificial Disc Replacement	Cat II					
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

Low Back Pain (LBP). According to the service treatment record and the MEB narrative summary (NARSUM), the CI underwent L4-5 total disc replacement surgery in September 2005 (11 months prior to separation). At the 30 March 2006 primary care clinic visit, 4 months prior to separation, the examiner noted the CI wore a back brace. The range of motion (ROM) evaluation showed flexion of 90 degrees (normal) and combined ROM of 235 degrees (normal 240). Lumbar spine discomfort was present with resistance to flexion and extension. The CI was able to touch the toes but experienced pain with extension of the lumbar spine.

The 5 April 2006 MEB NARSUM examination, 4 months prior to separation, noted complaints of LBP with occasional wear of a back brace. Physical examination repeated the findings from the 30 March 2006 examination (above). During the 13 April 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, physical examination showed tenderness of the lumbar spine. The ROM measurements were equivocal with flexion of 80 degrees (or possibly 80 percent; approximates 70 degrees) and extension of 5 degrees (normal 30).

At the 11 January 2007 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported symptoms of pain, stiffness and weakness. Pain was noted to travel and was elicited by physical activity and stress. The CI had not been on bed rest in the past year. Functional impairment included prolonged standing, walking, lifting, pushing or pulling. Physical examination showed a normal gait. The thoracolumbar spine was without tenderness, radiation of pain or muscle spasms. Spinal ROM testing showed flexion of 60 degrees and combined ROM of 210 degrees. Limitations were noted to be secondary to pain after repetitive motion.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10%, analogously coded as 5243 (intervertebral disc syndrome). The PEB also listed status post artificial disc replacement as a related Category II condition (contributed to the primary unfitting condition but was not separately ratable). It is first clarified that the PEB’s Category II diagnosis (post artificial disc replacement) is intrinsic to the rated condition and a separate rating cannot be supported without pyramiding (VASRD §4.14); thus, it is appropriately subsumed under the rating for the unfitting back condition. The VA rated the back condition 20%, analogously coded as 5299-5237 (lumbar spine strain), based on the C&P examination, citing 60 degrees of flexion.

The panel deliberated the probative value of the examinations in evidence and adjudged that the MEB and NARSUM examinations had the highest probative value for rating at separation. The VA examination was after separation and adjudged to include post-separation worsening. The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as reported on the MEB and NARSUM examinations. The panel noted 10% equally applied for combined ROM (greater than 120 degrees but not greater than 235 degrees) as reported on the NARSUM examination, as well as tenderness on the MEB examination. While the CI may have experienced radiating pain from the back condition, this 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 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 intervertebral disc syndrome 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 back condition.

BOARD FINDINGS: In the matter of the 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:

DEPARTMENT OF THE NAVY
SECRETARY OF TIIB NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD, DC 20374-5023

I N REP LY 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 ofno 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.