RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-03214 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20070915

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Rifleman, medically separated for “structural and discogenic 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 - 20070302	VARD - 20080201	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	Lumbar Spine Degenerative Disc Disease with Left Leg Radiculopathy	
5243	
20%	
20071115	
L4-L5, L5-S1 Central Disk Protrusion	Cat II					
L3-L4 Disk Degeneration						
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 50%	

ANALYSIS SUMMARY:

Low Back Pain (LBP). According to the service treatment record and MEB narrative summary (NARSUM), the CI’s low back condition began in October 2006 during training when he slipped while attempting to pull another Marine through a window. He was seen in the emergency room (ER) on 2 November 2006 for LBP and was treated with a narcotic and muscle relaxer since previously prescribed nonsteroidal anti-inflammatory drugs (NSAIDs) had not relieved the pain. A thoracic spine MRI on 23 February 2007 was unremarkable.

The CI had additional ER visits in late February and mid-March 2007 and was treated with prednisone, a muscle relaxer, and a NSAID on 19 March 2007. A lumbar spine MRI performed in March 2007 showed L3-L4 disc desiccation (degeneration) and L4-L5 and L5-S1 disc bulges without neural compression or compromise. Despite rest, multiple medications, and chiropractic therapy, the LBP did not subside. A neurosurgical spine evaluation on 15 May 2007 revealed moderate muscle spasm and moderate to severe tenderness. Lumbar (not thoracolumbar) flexion was 30 degrees (normal 60); extension was 5 degrees; and lateral extension was 5 degrees. Straight leg raising to determine nerve root irritation was negative. Painful motion, gait, and posture were not addressed. Surgical options were not indicated.

During the 1 June 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported severe recurrent LPB, numbness, and tingling that shifted down his leg. Physical examination recorded “limited” spine flexion and extension; painful motion was not addressed. The 14 June 2007 MEB NARSUM examination noted CI complaints of middle LBP which radiated into the back of the left thigh to knee. The physical examination incorporated the neurosurgical visit findings.

At the 15 November 2007 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported LBP with muscle spasms. Physical examination revealed an abnormal gait with use of a cane that favored the left leg. Spinal posture was normal, and tenderness was present but with no muscle spasm. Thoracolumbar ROM measurements showed flexion to 45 degrees (normal 90) and a combined ROM of 145 degrees (normal 240), with painful motion, but no ROM loss following repetition. Lumbar spine X-rays on 16 November 2007 showed lumbar intervertebral disc spaces were maintained with no spondylolysis, spondylolisthesis or acute bone injuries. An MRI on 11 December 2007 showed mild degenerative changes anteriorly in the mid lumbar spine and posteriorly in the lower lumbar spine. No focal disc herniation or significant acquired stenosis was noted.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the LBP 10%, coded 5237 (lumbosacral strain), and also listed “L4-L5, L5-S1 central disk protrusion” and “L3-L4 disk degeneration” as related Category II conditions (contribute to the primary unfitting condition but not separately ratable). The panel considered these impairments and determined they were properly subsumed under the overall rating for the LBP IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited). The VA rated the LBP 20%, coded 5243 (intervertebral disc syndrome (IVDS)), based on the C&P spine examination, citing limitation of flexion. 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 at the neurosurgery examination (30 degrees lumbar flexion converts to 60 degrees thoracolumbar flexion) and at the VA spine ROM examination where flexion was 45 degrees. There was no evidence 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 20% for the low back condition, coded 5237.

BOARD FINDINGS: In the matter of the low back condition and IAW VASRD §4.71a, 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	
Structural and Discogenic Low Back Pain	5237	20%	

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 20%. 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.