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

From: To:

Director, Secretary of the Navy Council of Review Boards
 PD-2017-03789

IN REPLY REFER TO

1850
CORB:003
19 Feb 20

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr of 1 Jul 19

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

2.	On 12 February 2020, the Assistant Secretary of the Navy took action in your case by accepting the correct recommendation of the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Physical Evaluation Board from Oto	30 percent with assignment to the Permanent Disability Retired List.

3.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, was sent to the Navy Personnel Command, for correction of your records as stated above.	You will be notified once those changes are complete.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXX	CASE: PD-2017-03789
BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20061120

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Hull Technician, medically separated for “lumbago” and “cervicalgia,” rated 0% each, with a combined disability rating of 0%.

CI CONTENTION:  “Review all conditions.”  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 - 20060817			VARD -	
Condition	Code	Ratin			Conditio	Code	Rating	Exam	
Lumbago	5237	0%			Back and Neck Pain	5237	NSC	20070325	
Cervicalgia	5237	0%							
COMBINED RATING: 0%			COMBINED RATING OF ALL VA CONDITIONS: 0%	

ANALYSIS SUMMARY:

Lumbago. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in approximately 2002 and was exacerbated when he slipped down a ladder while on watch in November 2004.     At an orthopedic clinic visit on       22 September 2005, lumbar flexion was 60 degrees (normal 90) with mild pain at the extreme and spinal tenderness. At the 20 June 2006 othopedic examination, lower extremities strength and sensation were normal, and X-rays showed no significant bonyabnormalities.

During the 26 June 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported chronic back pain.  The clinical evaluation for the spine was

checked as normal. The MEB NARSUM examination 4 days later noted complaints of lower back and right hip pain. Physical examination showed normal motor strength and sensation and intact lower extremity reflexes. The examiner stated it was “unlikely that the pain [was] due to a serious underlying condition.” The 7 July 2006 physical therapy (PT) range of motion (ROM) examination, 4 months prior to separation, showed 60 degrees of forward flexion and 190 degrees of combined ROM (normal 240).

At the 15 March 2007 VA Compensation and Pension (C&P) neurology examination, 4 months after separation, the CI complained of daily back pain worsened by walking or heavy lifting. He also reported “shooting” pain down the right leg, but denied lower extremity weakness, sensory changes, or bowel or bladder symptoms. Physical examination showed his gait was normal and he could forward flex to 70 degrees. Extension was 30 degrees (normal) and he could “turn towards his right and left sides.”  He could also walk on his heels and toes withoutdifficulty.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 0%, coded 5237 (lumbosacral strain), citing “pain not ratable.” The VA did not rate the back condition, but instead found it to be not service connected (NSC), also coded 5237, citing “no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service.”

Panel members considered the somewhat disparate ROM evaluations and agreed the physical therapy ROM held more probative value because it was conducted before separation and included measurements in all six planes of motion as compared to the less than complete measurements at the VA examination. Therefore, a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees). There was no documentation of intervertebral disc syndrome (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 back condition, coded 5237.

Cervicalgia. According to the STR and MEB NARSUM, the CI’s neck condition began during basic training in 2002. An MRI 2002 showed no significant pathology. The neck condition was aggravated after falling down a ladder in 2004 and an MRI in May 2005 showed a spinal bulge at C4-5, but the spinal cord appeared normal. At an orthopedic clinic visit in September 2005, there was no limitation of motion in any plane of motion, but there was moderate pain at the extreme with flexion, and mild tenderness of the cervical spine. At the 20 June 2006 orthopedic examination, 5 months prior to separation, the CI reported “no relief in neck pain despite one year of activity modification and medication.” Physical examination showed normal upper extremity motor strength, reflexes and sensation. X-rays in June 2006 showed no significant abnormality.

During the 26 June 2006 MEB examination, the CI reported chronic neck pain. The clinical evaluation was checked normal for the neck and spinal evaluations. The MEB NARSUM examination noted the CI reported 8/10 neck pain with numbness and tingling down the arms. There was no focal examination of the neck. The July PT ROM evaluation showed 45 degrees of forward flexion (normal) and 235 degrees of combined ROM (normal 340). At the VA C&P neurology examination the CI complained of 4-8/10 neck pain. Physical examination showed no tenderness or spasm, and neck ROM was “full.”

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the neck condition 0%, coded 5237 (cervical strain), citing “pain not ratable.” The VA did not rate the neck condition, but instead found it to be NSC, coded 5237, citing “no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service.”

Panel members considered the somewhat disparate ROM evaluations, and agreed the pre- separation PT evaluation held more probative value because it occurred while the CI was still in service and reflected measurements in all six planes of cervical motion. Therefore, a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 170 degrees but not greater than 335 degrees), as reported on the PT examination. 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 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 10% for the neck 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. In the matter of the neck condition, the panel recommends a disability rating of 10%, 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Lumbago	5237	20%	
Cervicalgia	5237	10%	
	COMBINED	30%	

The following documentary evidence was considered: