RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-04303 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20090831

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Recruiter, medically separated for “low back pain with evidence of disk degeneration at two levels of the lumbar spine and continued low back pain despite micro-diskectomy with still continual radicular symptoms on the right side” with a disability rating of 20%.

CI CONTENTION:  Review of all conditions requested.  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 - 20081125	VARD - 20091019	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP…	5237	20%	Spondylosis and Degenerative Arthritis, Thoracolumbar Spine, Status Post (S/P) Back Surgery	5239-
5242	10%	20081106	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

LBP… According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent a spinal level L4-L5 and L5-S1 diskectomy in August 2007. The 5 June 2008 MEB NARSUM examination, 14 months prior to separation, noted complaints of persistent LBP and intermittent pain extending down his right leg. The physical examination (PE) revealed a normal gait. Spinal range of motion (ROM) noted forward flexion to 70 degrees (normal 90), extension to 15 degrees (normal 30), right lateral flexion of 20 degrees (normal 30) and normal left lateral flexion.  The rotary component of spinal motion was not documented.     Mild tenderness about

the low back was present. Spinal X-rays performed on 6 November 2008, 15 months post-surgery and 9 months prior to separation, noted diffuse degenerative disc disease (DDD) of the lumbar spine.

At the VA Compensation and Pension (C&P) examination the CI reported a burning, aching, sharp, and cramping pain in the lower back that traveled up the back and down the legs, occurring 4 times per day with a 2-hour duration each episode. The CI further endorsed that his symptoms were relieved by rest and his condition has not resulted in any period of incapacitation. The PE revealed a normal gait. Tenderness and muscle spasms were present about the lumbar spine and spinal contour was normal. Thoracolumbar ROM was painful and measured forward flexion to 78 degrees and a combined ROM of 211 degrees (normal 240). Repetitive movement did not cause any further degree of limited spinal motion.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the low back condition 20%, coded 5237 (lumbosacral strain). The VA rated the condition as spondylosis and degenerative arthritis, thoracolumbar spine, s/p back surgery condition 10%, dual coded 5239-5242 (spondylolisthesis or segmental instability - degenerative arthritis of the spine), based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees.

Panel members first discussed the lack of clinical documentation during the last 9 months prior to separation and therefore, placed near exclusive probative value on the VA examination due to its closeness to separation. The degree of limited spinal motion coupled with tenderness and muscle spasms does not support a VASRD impairment rating greater than the PEB’s current 20%. The panel’s precedence is that its final impairment rating recommendation may not produce a lower rating than that of the original PEB; therefore, 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’s adjudication for the low back condition. Any pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. Therefore, after due deliberation, the panel additionally concluded this condition could not be recommended for additional disability rating.

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:

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

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) PDBRltr

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 of no 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.