RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE: PD-2019-00129 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20070215

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Motor Vehicle Operator, medically separated for “lumbago” with a disability rating of 10%.

CI CONTENTION: Review requested of the unfitting back condition, radiating pain, and mental health issues as well as additional conditions not identified by the Medical Evaluation Board (MEB) and/or Physical Evaluation Board (PEB). 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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20061221	VARD - 20070328	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbago	5237	10%	Residuals, Post Operative Lumbar Spine with Osteoarthritis L3-4 and L4-5	5243-5242	20%	20060418	
Sciatica	Cat II	No VA Placement	
PTSD	Cat III	PTSD	9411	70%	20060424	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 80%	

ANALYSIS SUMMARY:

Lumbago. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back pain (LBP) began in November 1997 with no history of trauma or injury. He had a microdiscectomy and laminectomy at L5-S1 on 21 December 2000, but later re- injured his back in a motor vehicle accident in Iraq in January 2005, with complaints of low back and recurrent right leg pain afterwards. A CT scan and MRI in early 2006 showed a L4-5 central herniated disc, with slight right lateral recess stenosis and L5-S1 postoperative changes. Epidural steroid injections helped the right leg pain, but not the LBP; surgery was not recommended.

At the 18 April 2006 VA Compensation and Pension (C&P) examination, 10 months before separation, the CI complained of constant, non-radiating LBP as well as stiffness. Pain was elicited by stress and sitting, and relieved by rest, with no incapacitation. He had difficulty walking, sitting, and standing, and missed approximately one month of work. Physical examination

showed him to be in no acute distress with a normal posture and gait. Muscle spasms were present, but there was no tenderness or radiating pain on movement. Straight leg raise testing was negative bilaterally, and thoracolumbar range of motion (ROM) showed flexion to 90 degrees (normal) and a combined ROM of 240 degrees (normal). Pain was elicited with all measurements and repetition, and joint function was additionally limited by pain, but there was no further limitation of motion in degrees. There was no evidence of intervertebral disc syndrome (IVDS).

On 23 May 2006, measured ROM at a sports medicine visit showed “lumbosacral spine motion was abnormal” with flexion to 60 degrees and a combined ROM of 200 degrees, and painful flexion and extension. There was diffuse tenderness but no muscle spasm, and gait and stance were normal as were lower extremity strength, sensation, and reflexes. At a sports medicine examination on 28 September 2006, 5 months prior to separation, the CI reported dull LBP that radiated to the right calf in the past, but not since epidural injection. The pain was constant with intermittent exacerbations, and the provider noted “lumbosacral spine motion was normal. Flexion was 60 degrees. There was no pain with flexion and extension.”

At the 7 November 2006 MEB physical therapy (PT) ROM study, 3 months before separation, lumbar spine ROM was measured with an inclinometer and revealed, in degrees: flexion to 45, extension to 5, right lateral flexion to 15 (normal 30), and left lateral flexion to 10. The examiner noted “rotation unable to assess with one inclinometer.” No muscle spasm was noted, but painful motion was elicited by flexion and extension. Gait and stance were normal as were lower extremity neurological findings. During the MEB NARSUM examination a week later, the CI reported continuous LBP with occasional sciatica, and that he was unable to successfully perform military duties to include lifting more than 25 pounds. Physical examination showed no signs of scoliosis or kyphosis and normal neurological findings. At a primary care visit on 26 November 2006, the CI reported LBP with numbness and tingling down the right leg for the past week, and the provider noted spasms, but no post-operative change in ROM or neurological deficits.

At a VA neurosurgical examination on 4 May 2007, the CI reported symptom improvement for approximately 6 months after an epidural injection, but recent worsening and radiation down the right leg posteriorly to just below the knee. The pain was sharp and burning with some calf numbness. On examination, gait as well as lower extremity strength, sensation, and reflexes were normal. The CI was employed at the time and given a note to maximally restrict physical labor. An MRI on 4 June 2007 showed significant degenerative disease at L4-5 and L5-S1 with substantial stenosis around the L5 nerve root and evidence of instability. At a neurosurgical follow-up on 13 July 2007, the CI reported he recently had to quit his job. The provider recorded radiating pain in an L5 dermatomal distribution with “slightly diminished sensation” and normal strength. On 8 August 2007, 6 months after separation, he underwent an L3-S1 surgical fusion.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the low back condition 10%, coded 5237 (lumbar spine strain). The VA rated the low back condition 20%, dual coded 5243-5242 (intervertebral disc syndrome (IVDS)-degenerative arthritis of the spine), based on the C&P examination, citing thoracolumbar flexion greater than 30 degrees but not greater than 60 degrees as measured by PT on 7 November 2006. The VA increased the back rating to 60% in the 14 August 2007 VARD, based on post-separation treatment notes, citing the back condition precluded employment prior to surgery. Panel members noted that while STR ROM measurements seemed to reference lumbar instead of thoracolumbar measurements, the inclusion of VASRD thoracolumbar ROM plates at the initial sports medicine evaluation resolved reasonable doubt in favor of a 20% rating, but no higher, for limitation of flexion. Although the CI’s back condition worsened after separation, there was no evidence to support a higher rating prior to separation, and no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed to warrant consideration of rating under that alternate 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 5243. The PEB also adjudicated “sciatica” as a Category II condition (related and contributes to the primary unfitting condition), and panel members assessed whether it could be reasonably justified as separately unfitting for rating consideration. Two limited duty (LIMDU) reports documented lumbar pain with radiculopathy, and the non-medical assessment (NMA) noted the CI’s back ailment limited successful duty performance. The panel concluded that the sciatica was reasonably considered separately unfitting and eligible for disability rating consideration. At examinations proximate to separation, neurological evaluation of the right lower extremity was normal and leg pain had also improved proximate to separation following epidural steroid injection. Pain, whether or not it radiates, is subsumed in the panel’s VASRD §4.71a rating for the low back above, and there was no evidence of motor or sensory deficit until 5 months after separation, with “slightly diminished” sensation noted at that time. The panel agreed that a 0% rating, but no higher, was supported for sciatica at separation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 0% for the sciatica, coded 8520.

Contended PEB Condition: PTSD. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting. The contended condition was not noted on LIMDU forms or implicated in the NMA, and did not fail retention standards. There was no performance-based evidence from the record that the condition 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 the contended condition, so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the low back condition, the panel recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a. In the matter of the sciatica, the panel recommends a disability rating of 0%, coded 8520 IAW VASRD §4.124a. In the matter of the contended PTSD, the panel recommends no change from the PEB determination 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, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Lumbago	5243	20%	
Sciatica	8520	0%	
	COMBINED	20%	

The following documentary evidence was considered:

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: 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 Apr 20
(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 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 (PEB) 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 office of the Deputy Commandant, Manpower and Reserve Affairs, for appropriate'changes to your personnel records and notification to you upon completion.