RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-03620 BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20091218

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Outboard Engine Mechanic, medically separated for “chronic back pain” and “degenerative disk disease [DDD], thoracolumbar spine” with a combined disability rating of 0%.

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 - 20090908	VARD -20100416	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	Overall Effect	Thoracolumbar Spine	5237	20%	20100121	
DDD, Thoracolumbar Spine						
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

Chronic Back Pain and Thoracolumbar Spine DDD. The PEB combined the chronic back pain and thoracolumbar spine DDD under a single disability rating for “overall effect” as permitted by DoDI 1332.38 (E3.P3.4.4). The combination of multiple conditions as a single disability reflects the PEB’s determination that each condition was not separately unfit, but the functional impairment resulting from the conditions when considered together was unfitting. The panel’s initial charge in this case was therefore directed at determining if the PEB’s single overall effect rating was justified in lieu of separate unfit determinations and ratings. If the panel judges that two or more

separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself as shown by a preponderance of evidence. The panel’s recommendations may not produce a lower combined rating than that of the PEB. The evidence for the chronic back pain and thoracolumbar spine DDD are presented together with separate fitness determinations and rating recommendations if indicated.

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in July 2007. He tried to open a door and turned awkwardly when his name was called; he felt immediate middle and lower back pain. There was no surgical indication. At the comprehensive/interventional pain medicine consultation on 3 March 2008 the CI noted chronic thoracolumbar pain. The physician reported, “Normal range of motion [ROM] of the cervical spine and lumbar spine.” There was tenderness over the thoracic and lumbar spine. The comprehensive/interventional pain medicine consultation 8 months later noted complaints of thoracic pain. Physical examination showed a normal ROM of the “lumbar spine.” The primary care clinic examination on 25 March 2009 noted complaints of intra-scapular pain, but no leg or arm pain. Physical examination reported normal strength, reflexes, and ambulation.

During the 23 June 2009 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported he “couldn’t lift enough.” Physical examination revealed a normal gait and no tenderness. The term “back” was utilized and did not specify whether ROM measurements were thoracolumbar or lumbar. ROM was 20 degrees flexion, 10 degrees extension, and 30 degrees lateral flexion. There was no rotation without pain. The examiner recorded where pain began and not where motion stopped. The 20 July MEB NARSUM examination, 5 months prior to separation, noted complaints of weakness and inability to walk for prolonged periods of time (greater than one mile) and inability to flex his thoracic or lumbar spine, which meant he could not bend down to do any work. Physical examination showed a normal gait along with the ability to heel and toe walk. His muscle strength was 5/5. Neurovascular examination was within normal limits. ROM measurements were not provided.

At the 21 January 2010 VA Compensation and Pension (C&P) examination, one month after separation, the CI reported he had limitation in walking because of his spine condition. Physical examination showed a normal gait and posture with tenderness. There was no guarding, spasm, or weakness and straight leg raise tests were negative, bilaterally. ROM measurements showed flexion of 50 degrees (normal 90) with combined ROM of 195 degrees (normal 150) with pain. The thoracic and lumbar spine X-rays were within normal limits.

The panel directed attention to its rating recommendation based on the above evidence. As noted above, the PEB bundled the chronic back pain with thoracolumbar spine DDD and applied a single 0% rating for overall effect. The VA rated the thoracolumbar spine (claimed as 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; or, combined ROM of the thoracolumbar spine not greater than 120 degrees. The panel noted the PEB bundled intertwined diagnoses, which upon review, is a single condition case. The overall back impairment from all listed diagnoses was subsumed under the ratings for the back by both the PEB and VA. More than one rating based on the same impairment is prohibited, IAW §4.14 (avoidance of pyramiding).

The panel placed greater probative value on the VA examination which was more detailed and compliant with VASRD rating guidelines. Also, the C&P examination was more proximate to the date of separation. 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 C&P examination. 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 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	
Chronic Back Pain, Degenerative Disc Disease of the Thoracolumbar Spine	5237	20%	

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
6040
CORB:003 14 May 21

From: Director, Secretary of the Navy Council of Review Boards To:	XXXXXXXXXXXXXXX

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.