RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-04638 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20061130

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Combat Engineer, medically separated for “low back pain (LBP)” with a disability rating of 0%.

CI  CONTENTION:	The current condition continues to affect daily activities. 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 - 20060830	VARD - 20070207	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP	5243	0%	DDD, L4-L5 With Stenosis and L4-5 Annular Bulge	5243-5242	10%	20060823	
L4-L5 Herniated Disk Without Neural Compression	Cat II					
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: 30%	

ANALYSIS SUMMARY:

LBP. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered from back pain for approximately 6 years with no specific injury or trauma. Lumbar spine MRI studies dated 1 September 2005 showed an L4-5 annular bulge with protrusion resulting in central spinal canal and left lateral recess stenosis (may cause nerve impingement) and minimal L5-S1 annular disc bulge without focal protrusion or stenosis.

At the 18 April 2006 orthopedic examination, 7 months prior to separation, the CI reported LBP with radiating symptoms down the left leg to the knee with temporary relief from epidural steroid injections (ESIs). Thoracolumbar range of motion (ROM) was full and pain was not elicited. There was tenderness but no muscle spasms. Gait was normal.

The 24 May 2006 MEB NARSUM examination, 6 months prior to separation, noted complaints of back and occasional left lateral thigh pain. The CI reported no relief from physical therapy and only temporary relief from ESIs. Physical examination showed the CI was able to forward bend reaching to within 5 inches of his toes (the examiner stated this was approximately 90 degrees of flexion), 20 degrees of extension and 40 degrees of side bending bilaterally. No rotation measurements were provided. Lower extremity strength, sensation, and reflexes were normal.

The 8 June 2006 spine surgery examination, 6 months prior to separation, noted the CI had been offered surgery at another facility and was seeking a second opinion. The CI reported worsening symptoms, both in frequency and intensity, with muscle spasms involving the buttocks and hamstring muscles, with pain radiating to the knees, left greater than right. Physical examination showed a normal gait. He was able to flex to the ankle before being limited by pain. Extension was mild and lateral bend bilaterally was normal. The surgeon noted MRI (date not noted) showed a large disc rupture at L4-5 with spinal stenosis at that level. Surgical options were discussed.

At the 23 August 2006 VA Compensation and Pension (C&P) examination, 3 months before separation, the CI reported pain on a daily basis with left leg pain down to the knee. Pain was rated at 4/10. Lumbosacral spine ROM was flexion to 70 degrees and combined ROM of 155 degrees. After repetition, flexion increased to 80 degrees (combined ROM 165). The CI reported he was incapacitated for 50 days over the previous 12 months while in service. Gait was normal. Lumbar spine X-rays showed degenerative disc disease (DDD) at L4-5.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 0%, coded 5243 (intervertebral disc syndrome [IVDS]). The Navy PEB also listed L4-L5 herniated disk without neural compression as a related Category II condition (contributed to the primary unfitting condition but was not separately ratable). The impairment from the Category II condition was properly subsumed under the overall rating for the LBP IAW
§4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited). The VA rated the back condition 10%, analogously coded 5243-5242 (IVDS- 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 greater than 125 degrees but not greater than 235 degrees.

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the MEB and VA examinations. Although not reported as goniometric measurements, the MEB NARSUM examination demonstrated the CI flexed reaching fingers past the knees which exceeds 60 degrees of thoracolumbar flexion. Additionally the examiner did not provide rotation measurements, but based on the available measurements, the combined ROM exceeded 120 degrees. 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. Although the CI had IVDS, there was no documentation of 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 low back condition, coded 5243.

BOARD FINDINGS: In the matter of the low back condition, the panel recommends a disability rating of 10%, coded 5243 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	
Low Back Pain	5243	10%	

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:
1850
CORB:003 12 Oct 20

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

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)
Ref:	(a) DODI 6040.44
(b) PDBR ltr of 9 Sep 19

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

2.	On 5 October 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) took action in your case by accepting the recommendation of the PDBR. Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Department of the Navy Physical Evaluation Board (FEB) from 0% to 10% without re-characterization of your discharge.

3.	For your information, since all disability ratings from 0% to 20% qualify for disability severance pay, the above stated increase will not result in your entitlement to additional compensation.

4.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, has been forwarded to the office of the Deputy Commandant, Manpower and Reserve Affairs, for appropriate changes to your personnel records and notification to you upon completion.