RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-04868 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20050701

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Aircraft Mechanic, medically separated for “failed low back surgery syndrome” with a disability rating of 20%.

CI CONTENTION: “Review all 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 - 20050401	VARD - 20070131	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Failed Low Back Surgery Syndrome	5299-5243	10%	Degenerative Disc
Disease, Lumbar Spine	5242	20%	20060620	
	8720	10%	Left Leg Radiculopathy S/P Lumbar Neurosurgery	
8799-8720	
20%	
20060620	
Chronic Low Back Pain	Cat II					
Herniated Lumbar Disc at L4-5	Cat II					
Herniated Disc at L5-S1 Status
Post Laminectomy	Cat II	Right Leg Radiculopathy	8720	10%	20060620	
Hyperlipidemia	Cat III	No VA Placement	
Hypertension	Cat III	NO VA Placement	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:

Failed Low Back Surgery Syndrome. According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent L5-S1 discectomy in June 2002 with revision and radical discectomy in July 2002. However, low back pain with decreased sensation in his left leg and foot persisted, so he underwent lumbar laminectomies at L4-5 and L5-S1 in September 2003. X-rays in January 2004 showed decreased lordosis of the lumbar spine, which could be positional or related to muscle spasm, and moderate disc space narrowing at L3-4. Unfortunately, low back pain and left greater than right radicular symptoms persisted. X-rays in July 2004 demonstrated moderate disc space narrowing at L3-4 and reversed lumbar lordosis, possibly as a result of muscle spasm. Electrodiagnostic studies in September

2004 revealed evidence of bilateral radiculopathies, but a CT scan in November 2004 showed mild L3-4 disc bulging with no evidence of central, subarticular or foraminal compromise.

The 14 December 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, revealed markedly decreased lumbar spine range of motion (ROM) and a slightly ataxic gait favoring the left side. The 15 December 2004 MEB NARSUM examination the next day noted complaints of low back pain. Physical examination showed significantly decreased ROM in the lumbar spine with a slightly ataxic gait. Left lower extremity sensation and bilateral lower extremity reflexes were decreased.

During the 20 June 2006 VA Compensation and Pension (C&P) examination, 12 months after separation, the CI reported constant daily lower back pain with flare-ups caused by prolonged sitting or any type of physical exertion. Left greater than right numbness and weakness were present in both legs, but muscle strength was normal in the right lower extremity and 4/5 in the left lower extremity. Sensation was absent along the lateral aspect of the left foot and leg all the way up to the thigh and there was diminished sensation on the right foot and lower leg. The CI denied having incapacitating episodes in the prior 12 months. Physical examination showed an antalgic gait with a slight limp favoring the left leg, but there were no spasms or evidence of guarding. Flexion was 50 degrees (normal 90), after repetition due to pain, and combined ROM was 120 degrees (normal 240), after repetition with pain on extension and lateral flexion. X-rays showed good bony alignment but slight narrowing of the L3-4 disc.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10%, analogously coded 5243 (intervertebral disc syndrome) at 10% and left lower leg radiculopathy 10%, coded 8720 (sciatic nerve neuralgia). The PEB also listed low back pain, herniated lumbar disc at L4-5 and herniated disc at L5-S1 as related Category II conditions. However, any impairment from these conditions was properly subsumed under the overall rating for the back condition to avoid pyramiding (§4.14). The VA rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined ROM of the thoracolumbar spine is not greater than 120 degrees. The VA also rated the left leg radiculopathy 20%, analogously coded 8720, based on the C&P examination, citing moderate incomplete paralysis below the knee.

The pre-separation STR and MEB ROM evaluations were not VASRD compliant. However, although the VA examination was 12 months after separation, it was VASRD compliant and showed flexion of 50 degrees after repetition. Therefore, a 20% rating is warranted since forward flexion of the thoracolumbar spine was greater than 30 degrees, but not greater than 60 degrees. Furthermore, although muscle spasms and guarding were not explicitly mentioned in physical findings, muscle spasm was suggested in postoperative X-rays prior to separation. Additionally, the CI did have an abnormal gait and reversed lordosis prior to separation, which favor and provide support for an alternative 20% rating for the back condition.

The CI did have decreased sensation of the left leg; however, muscle strength of the foot/ankle was normal, but there was an abnormal gait noted to be ataxic at two examinations prior to separation and antalgic gait with a slight limp favoring the left at the VA examination. Therefore, a rating higher than 10% at the time of separation cannot be achieved. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition and 10% for the left lower leg condition, coded 5299-5243 and 8720 respectively.

Contended PEB Conditions: Hyperlipidemia and Hypertension. The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting. Neither of the conditions were noted in references to limited duty or implicated in the non-

medical assessment. Hyperlipidemia is not a physical disability. Although the CI’s blood pressure was 169/98 at the MEB examination, it was 124/86, 124/84, and 122/86 at the VA C&P examination. There was no performance-based evidence from the record that either of the conditions significantly interfered with satisfactory duty performance at separation. After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for either of the contended conditions, so no additional disability ratings are recommended.

BOARD FINDINGS: In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5299-5243 IAW VASRD §4.71a and a disability rating of 10%, coded 8720 IAW VASRD 4.124a. In the matter of the contended hyperlipidemia and hypertension conditions, the panel recommends no change from the PEB determinations as not unfitting. 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Failed Low Back Surgery Syndrome	5299-5243	20%	
	8720	10%	
	COMBINED	30%	

DEPARTMENT OF THE NAVY
SECRETARY OF TIIB 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: 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 17 Dec 19
(b)	

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

2.	On 5 October 2020, the Assistant Secretary of the Navy took action in your case by accepting the correct recommendation of the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Physical Evaluation Board from 20 to 30 percent with assignment to the Permanent Disability Retired List.

3.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, was sent to the Office of the Deputy Commandant (Manpower and Reserve Affairs), for correction of your records as stated above.	You will be notified once those changes are complete.