RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-04643 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20070630

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

CI CONTENTION: “Because the disabilities were more serious and disabling than what the Marine Corps awarded me.” 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 - 20070323	VARD - 20070829	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP	5243	0%	
Low Back Strain	
5242	
10%	
20070417	
Myalgias and Myositis	Cat II					
Lumbar Spondylosis	Cat II					
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: 10%	

ANALYSIS SUMMARY:

LBP. According to the service treatment record and MEB narrative summary (NARSUM), the CI’s LBP began in 2001 without any specific injury or trauma, and became worse over time. Radiograph imaging from August 2005 showed moderate L4-5 disk bulge, slightly eccentric to the left with minimal canal and neuroforaminal narrowing and no changes in a repeat MRI. There was no surgical indication. The 16 February 2007 MEB NARSUM examination, 4 months prior to separation, noted complaints of LBP with occasional numbness in the soles of both feet. Physical examination showed a normal gait and back tenderness. Range of motion (ROM) measurements

of the back showed flexion of 90 degrees (normal), and combined ROM of 180 degrees (normal 240). Painful motion was noted with flexion.

At the 17 April 2007 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported the back pain flared up when dressing himself. It became 6/10 when lifting, going up and down the stairs, running for one block, and bending. He reported no incapacitating episodes over the last 12 months. Physical examination showed a normal gait and tenderness. ROM measurements were flexion to 90 degrees and combined ROM of 240 degrees with painful motion present for all movements. The examiner noted function and ROM of the lumbar spine or were not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination during the flare-ups.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the LBP condition 0%, coded 5243 (intervertebral disc syndrome [IVDS]). The Navy PEB also listed “myalgias and myositis,” and “lumbar spondylosis” as related Category II conditions (contributed to the primary unfitting condition but were not separately ratable). The myalgias and myositis (of the back - as no other joints/body areas were implicated), and lumbar spondylosis were different aspects and underlying causes of the CI’s LBP and were 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 LBP condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing the criteria of “flexion greater than 60 degrees but not greater than 85 degrees and combined ROM greater than 120 degrees but not greater than 235 degrees.”

The panel agreed that a 10% rating, but no higher, was justified for tenderness and/or painful motion as reported on all examinations proximate to separation, or alternatively for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the NARSUM 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 LBP condition, coded 5243.

BOARD FINDINGS: In the matter of the LBP 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
72 0 KENNON STREET SE STE 30 9
WASHINGTON NAVY YARD, DC 20374-5023

IN REPLY REFER TO:
1850
CORB:003 12 Oct 20

From: To:

Subj:

Ref:

Director, Secretary of the Navy Council of Review Boards 

PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)
{a) DoDI 6040.44
(b)	PDBR ltr of 9 Sep 19
(b)	

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 (PEB) 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.