RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXXXXXX	CASE: PD-2017-03010
BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20060715

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

CI CONTENTION:  No specific contention was made. 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 - 20060526	VARD - 20070810	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5243	10%	
Lumbar Spondylosis; L5-S1	
5242	
20%	
20070605	
S1 Radiculopathy	Category II					
Lumbar Spondylosis at the L5-S1 Region with Herniated Disk at that Level						
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 20%	

ANALYSIS SUMMARY:

Low Back Pain. According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back pain began in February 2004 of unknown cause. Physical therapy (PT), rest and medication failed to improve the condition enough to allow performance of her military specialty. A low spine MRI in December 2004 revealed a left L5-S1 herniated disc and small L3-4 and L4-5 bulges; surgery was no indicated. The 18 October 2005 neurosurgery examination, 9 months prior to separation, noted CI complaints of low back pain that radiated to

the left leg. Physical examination showed a normal gait and stance, and spinal tenderness present. Motor strength, sensory, and reflex tests were normal. Range of motion (ROM) and painful motion were not addressed.

During the 1 May 2006 MEB NARSUM examination, 2 months before separation, the CI reported low back pain that radiated into her left leg, calf, and ankle, and was aggravated by prolonged standing, sitting, bouncing, and bending forward. Physical examination showed a normal gait and lower extremity motor strength except for the left calf muscle at 4/5. Thoracic spine ROM was “normal” and lumbar ROM was “excellent overall,” except for painful motion during flexion.

At the 5 June 2007 VA Compensation and Pension (C&P) examination, 11 months after separation, the CI reported low back pain that radiated to the right leg, but no longer to the left, and was aggravated by prolonged sitting or standing. Physical examination showed bilateral lower extremity motor strength at 5/5 and sensation intact to light touch. Lumbar spine flexion was to 90 degrees and combined ROM was 220 degrees, with painful motion.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the low back condition 10%, coded 5243 (intervertebral disc syndrome (IVDS)). The Navy PEB also listed “S1 radiculopathy” and “lumbar spondylosis at the L5-S1 region with herniated disk at that level” as related Category II conditions that contributed to the primary unfitting condition but were not separately ratable. The panel first considered the radiculopathy impairment, and agreed although the CI reported radiating back pain into the left lower extremity, this pain is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” The panel agreed there was no objective evidence of a radiculopathy with functional impairments (such as weakness) nor performance-based evidence from the record that this condition significantly interfered with satisfactory duty performance at separation. The panel next considered the L5-S1 lumbar spondylosis impairment and determined it was properly subsumed under the overall rating for the LBP condition IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited). The VA rated the low back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing limitation of combined ROM and functional loss due to pain.

The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the VA ROM examination. Alternatively, a 10% rating is warranted with application of painful motion IAW VASRD 4.59, as reported on the MEB NARSUM and VA ROM examinations. 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 of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition. 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 §4.71a, 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:

Exhibit A. DD Form 294, dated 20170317, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

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 20May20

From: 

Director, Secretary of the Navy Council of Review Boards 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW  (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr <ltd 1 May 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy on 5 Mar 2020 for appropriate action.

2.	On 20 March 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.