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

IN PtrLY P ftll.  TO:
1850
CORB:003
27 Feb 20

From:
To:

Director, Secretary of the Navy Council of Review  Boards

PD-2017-02979

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)
Ref:	(a) DoDI 6040.44
(b) PDBR ltr of 1 May 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department of the Navy for appropriate  action.

2.	On 21 February 2020, the Assistant General Counsel of the Navy (Manpower & Reserve  Affairs) took  action in  your case by    accepting  the recommendation of  the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Department of the Navy Physical Evaluation Board (PEB) from 10% to 20% without re-characterization of your discharge.

3.	For your information, since all disability ratings from 0% to 20% qualify  for disability severance pay, the above stated increase will not result in your entitlement to additional compensation.

4.	The Assistant Secretary's determination,  which  represents  final action  in your case by the Department of the Navy, has been forwarded to the office of the Deputy Commandant, Manpower and Reserve Affairs for appropriate changes to your personnel records and notification to you upon completion.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-02979 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 E4, Light Armored Vehicle Repairer, medically separated for “back pain secondary to lumbar degenerative disk disease [DDD]” with a disability rating of 10%.

CI CONTENTION: Rating should be changed from 20% to retirement. 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 - 20090109	VARD - 20090624	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain Secondary to Lumbar DDD	5237	10%	Lumbar DDD	5237	20%	20090529	
Chronic Right L5 Radiculopathy and Facet Syndrome	Cat II	No VA Placement	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 30%	
	
ANALYSIS SUMMARY:

Back Pain Secondary to Lumbar DDD. According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in August 2006 after wearing protective gear while deployed.  MRI showed broad based disk bulges at T12-L1 and L4-5.  The  5 August 2008 neurology examination showed lumbosacral muscle spasms, abnormal range of motion (ROM) and painful motion. The 12 August 2008 MEB NARSUM examination, 7 months prior to separation, noted complaints of moderate to severe midline low back pain with radiation and numbness into the right lower extremity.  Physical examination showed normal heel-to-toe

walk and gait. The lumbosacral spine had moderate to marked paraspinal muscle tenderness and spasm and the examiner noted moderate flattening of the normal lumbar curvature on forward flexion. There was decreased ROM of the lumbar spine on extension and lateral flexion bilaterally. Straight leg raise testing increased lower back pain bilaterally with radiation into the right buttock.

At the 17 August neurosurgery examination, 7 month prior to separation the CI reported pain exacerbation with all physical activities. The physical examination showed lumbosacral tenderness and an antalgic gait, but there were no muscle spasms. At the 17 September 2008 MEB NARSUM neurosurgical addendum, 6 months prior to separation, the examiner noted the CI was not a surgical candidate. Physical examination showed an antalgic gait and tenderness over the lumbosacral region. The examiner noted no significant muscle spasm and the CI was able to bend over and touch his toes (normal flexion). Other thoracolumbar ROM measurements showed extension of 10 degrees (normal 30), lateral flexion of 10 degrees (normal 30) and full rotation (normal 30).  Combined ROM was approximately 180 degrees.

At the 29 May 2009 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported chronic sharp burning pain in the lower back. Physical examination showed muscle spasm and loss of normal lordotic curvature. Straight leg raise testing produced right sciatic pain at 45 degrees on the right and lower back pain at 50 degrees on the left. Gait and heel-to-toe walk was normal. The thoracolumbar ROM study, after repetition, showed flexion of 60 degrees (normal 90) with painful motion, and combined ROM of 200 degrees (normal 240).

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10%, coded 5237 (lumbosacral strain). The PEB also listed intervertebral lumbar disk bulging with chronic right L5 radiculopathy and facet syndrome as a category II condition (related to the primary unfitting diagnosis and not separately ratable). However, there was no motor impairment from the radiculopathy that directly impacted fitness for duty. The impairment from pain associated with the intervertebral disc bulging, right lower extremity radiculopathy and facet syndrome, was properly subsumed under the overall rating for the back condition to avoid pyramiding (VASRD §4.14). The VA rated the back condition 20%, coded 5237 (lumbosacral strain), based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.

The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as reported on the VA examination proximate to separation. It was also noted that muscle spasm associated with an abnormal spinal contour was present on the MEB NARSUM and VA examinations, which would support an alternate 20% rating for evidence of muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition, coded 5237.

BOARD FINDINGS: In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a. 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, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Back Pain Secondary to Lumbar Degenerative Disk Disease	5237	20%	

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20170329, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record