RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:XXXXXXXXXXXXXXXXXXXXX	CASE: PD-2017-04442
BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20060131

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Radio Chief, medically separated for “status post L5-S1 fusion” with a disability rating of 10%.

CI CONTENTION: The chronic and persistent lower back pain and the status post L5-S1 fusion should have been rated higher noting the VA increased the rating for both of these 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 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 - 20051129	VARD - 20060914	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post L5-S1 Fusion	5241	10%	Degenerative Disc Disease Lumbar Spine	5243	10%	20060331	
Chronic and Persistent Lower Back Pain	Cat II					
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 10%	

ANALYSIS SUMMARY:

Status Post L5-S1 Fusion. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in July 2002 during martial arts training. Initial X-rays, bone scans and MRI were negative for fracture or disc disease. Following 2 years of physical therapy, improvement was minimal and the CI was diagnosed with spondylosis and left-sided radiating pain. In June 2003, electrodiagnostic (EMG) studies were normal. In April 2004, the CI underwent an L5-S1 spinal fusion with posterior instrumentation, but the pain persisted. CT studies revealed significant disk herniation at L5, S1. In April 2005, the CI underwent an anterior lumbar interbody fusion revision surgery to correct a failed fusion; however, lower back pain and stiffness persisted.

During the 18 October 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported pain levels at 3/10. Physical examination revealed tenderness with full range of motion (ROM). The 2 November 2005 MEB NARSUM examination noted complaints of daily back pain that increased with activities; the CI denied weakness,

paresthesias or imbalance. Physical examination showed full ROM of the back and extremities and there were no obvious gait or postural abnormalities. Pain was noted with straight leg raise testing. Neurologic examination was intact with gait and heel to toe testing normal. Muscle tone and deep tendon reflexes were normal.

At the 31 March 2006 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported frequent pain in the left lumbar region with occasionally radiation into the left buttock and/or thigh. A cane was used once or twice a week. Physical examination showed posture and gait were normal, no palpable spasm, and normal spine curvature. Back flexion was noted at 75 degrees (normal 90) and combined ROM at 230 degrees (normal 240), with pain at the extremes of flexion and extension. There was no DeLuca (decreased function on repetition) nor incapacitating episodes. Motor and sensory response were normal with negative straight leg testing.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the status post L5-S1 fusion condition 10%, coded 5241 (spinal fusion). The PEB also listed “chronic and persistent lower back pain” as related Category II conditions that contributed to the primary unfitting condition but were not separately ratable. The impairment from this condition was properly subsumed under the overall rating for the “status post L5-S1 fusion” IAW
§4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited). The VA also rated the degenerative disc disease lumbar spine condition 10%, coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees. Increased VA ratings were noted beginning in 2012 (6 years after separation), but did not represent the CI’s disability picture at separation.

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion as reported on the VA examination, or alternatively for tenderness on the MEB 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 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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the status post L5-S1 fusion condition.

BOARD FINDINGS: In the matter of the status post L5-S1 fusion condition and IAW VASRD §4.71, 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:

2	PD-2017-04442

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 REPER TO:
1850
CORB: 003
10 Sep 20

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

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.