RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE: PD-2017-04273 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20080430

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Scout Sniper, medically separated for “chronic discogenic low back pain” with a disability rating of 20%.

CI CONTENTION: He referenced his low back condition and also requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). 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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20080128	VARD - 20080528	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Discogenic Low Back Pain [LBP]	5237	20%	Lumbar Spine Intervertebral Disc Syndrome [IVDS] with Degenerative Disc Disease [DDD]	5243	20%	20080305	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:

Chronic Discogenic LBP. According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent an intradiscal electrothermal annuloplasty procedure at L4-5 and L5-S1 in May 2007. Despite physical therapy, he was unable to perform his military duties and reasonably declined further surgery. An MRI revealed disc degeneration of L4-5 and L5-S1. The 19 November 2007 MEB NARSUM examination, 5 months prior to separation, noted complaints of significant LBP with radiation into the legs. Physical examination showed normal gait and stance, but paraspinal muscle tenderness in the lumbar area. Range of motion (ROM) revealed

flexion to 90 degrees (normal) and a combined ROM of 165 degrees (normal 240) with significantly pain-limited motion. During the 27 November 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported constant back pain, the inability to stand still, and use of a back support. The examiner noted decreased ROM and pain at L4-5 and L5-S1.

At a MEB NARSUM addendum examination on 22 January 2008, 3 months before separation, the CI complained of LBP. Physical examination revealed an antalgic gait and stance favoring the right leg. There was paraspinal muscle tenderness and significant pain-limited ROM with flexion to 90 degrees and a combined ROM of 165 degrees.

At the 5 March 2008 VA Compensation and Pension (C&P) examination, 1 month prior to separation, the CI reported constant LBP with stiffness and weakness. The pain, rated at 4/10, was brought on by stress and physical activity, and described as aching, cramping, sharp, and burning. He had difficulty standing, walking, bending and lifting heavy objects, and required complete bed rest at times, but denied any incapacitation. The examiner noted mild difficulty getting on and off the examining table and changing positions. Gait and posture were normal, but there was paraspinal spasm and lumbar lordosis straightening. Goniometrically measured ROM showed flexion to 45 degrees with a combined ROM of 155 degrees, and pain in all planes.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 20%, coded 5237 (lumbosacral strain). The VA rated the back condition 20%, coded 5243 (IVDS), based on the C&P examination, citing “objective evidence of painful motion of the thoracolumbar spine with limited motion in forward flexion (45/90 degrees) along with fatigue and lack of endurance, a paraspinal muscle spasm with straightening of lumbar lordosis.” Panel members agreed that a 20% rating, but no higher, was justified for muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, or limited ROM as reported on the most probative VA examination. There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate formula. Thus, there was no evidence to support a rating higher than that adjudicated by the PEB. 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.

2	PD-2017-04273

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

IN REPLY REFER TO:
1850
CORB: 003
10 Sep 20

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

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) Ref:	(a) DoDI 6040.44
1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department of the Navy on 13 Aug 2020 for appropriate action.

2.	On 27 August 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.