RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE: PD-2017-05388
BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20090315

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Cryptologic Technician Technical, medically separated for “lumbar degenerative disk disease [DDD]” with a disability rating of 10%.

CI CONTENTION: “I developed scoliosis while on active duty with no signs or symptoms before enlistment. No one [in my family], to the best of my knowledge, has ever had scoliosis.” 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 - 20090130	VARD - 20090702	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar DDD	5237	10%	
Thoracolumbar Spine Strain…	
5236-5237	
20%	
20090423	
Facet Pain	Cat II					
Low Back Pain						
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

Lumbar DDD. According to the service treatment record and MEB narrative summary (NARSUM), the CI had a 3-year history of low back pain (LBP) that was treated conservatively without surgical indication.   A lumbar spine MRI performed in October 2007 showed  mild DDD at L4-5.   The   11 August 2008 MEB NARSUM, 7 months before separation, noted complaints of LBP and DDD. Physical examination (PE) revealed lumbosacral area tenderness and back flexion to 40 degrees (normal 90) with a combined range of motion (ROM) of 180 degrees (normal 240). Painful motion, gait, posture, spinal contour and muscle spasms were not addressed. The 20 August 2008 NARSUM addendum noted the CI was pain-free after a lumbar facet block. A back X-ray in October 2008 showed moderate lumbar scoliosis. The 13 January 2009 MEB physical therapy (PT) evaluation, 2 months prior to separation, noted complaints of LBP, and flexion was to 45 degrees with a combined ROM of 170 degrees; painful motion was not addressed.

At the 23 April 2009 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported persistent LBP with flare-ups. The PE showed an antalgic gait with use of a cane, and there was tenderness and guarding at the right para-lumbar region and over the right sacroiliac joint. Flexion was to 45 degrees and combined ROM was 160, with painful motion, but no motion loss following repetition. The examiner noted mild scoliosis.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the low back condition 10%, coded 5237 (lumbosacral strain), and listed facet and low back pain as Category II (contribute to the primary condition but not separately ratable) conditions. Panel members agreed that these related diagnoses could not be reasonably justified as separately unfitting; nor would separate ratings be achievable without violation of VASRD
§4.14 (avoidance of pyramiding). The VA rated the low back condition 20%, dual coded 5236- 5237 (sacroiliac injury and weakness-lumbosacral strain), based on the C&P examination, citing limitation of flexion. The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), as reported on the MEB NARSUM, MEB PT, and VA ROM examinations. There was no evidence of intervertebral disc syndrome with incapacitating episodes to support 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 20% for the low back condition, coded 5237.

BOARD FINDINGS: In the matter of the low back condition, the panel recommends a disability rating of 20%, coded 5237 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; 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	
Lumbar Degenerative Disk Disease	5237	20%	

The following documentary evidence was considered:

2	PD-2017-05388

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 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 26 Dec 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 7 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 (PEE) from 10% to 20% 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 Navy Personnel Command for appropriate changes to your personnel records and notification to you upon completion.