RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXXXXXXXXX	CASE: PD-2019-00167
BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20070615

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Engineer Equipment Mechanic, medically separated for “degenerative disc disease (DDD), L5/S1…producing…right leg pain” with a disability rating of 20%.

CI CONTENTION: Review of all conditions requested. 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 - 20070406	VARD - 20070716	
Condition	Code	Rating	Condition	Code	Rating	Exam	

DDD, 5/S1… Producing…Right Leg Pain	
5237	
20%	Herniated Nucleus Pulposus at L5-S1	5243	40%	
20070501	
			Radiculopathy of the Right
Lower Extremity	8620	20%		
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 90%	

ANALYSIS SUMMARY:

DDD, L5/S1 Producing Right Leg Pain. According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back pain began as early as June 2006 with no specific precipitating injury or trauma identified. Radiographic studies performed in September 2006 showed a large herniation of an intervertebral disc in the lower back (L5-S1). The 12 March 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of continued low back pain that radiated down his right leg to his right foot. The CI denied any muscle weakness, numbness, and bowel or bladder dysfunction. Physical examination showed a balanced, non- antalgic gait, and range of motion (ROM) was recorded as thoracolumbar flexion to approximately 85 degrees (normal 90) with combined ROM of 225 degrees (normal 240), with no painful motion. Motor strength of the lower extremities, sensation, and reflexes were all normal. Testing for possible nerve root impingement was positive on the right.

At the 1 May 2007 VA Compensation and Pension (C&P) examination, one month before separation, the CI reported constant low back pain that radiated to his right foot and occasionally

also to the left foot. Physical examination showed significant loss of normal spinal curvature (lordosis) and mild kyphosis (hunching of the back). The examiner recorded lumbar ROM as flexion to 30 degrees with combined ROM of 110 degrees with pain noted.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back and leg pain at 20%, coded 5237 (lumbosacral strain). The VA rated the back at 40%, coded 5243 (intervertebral disc syndrome [IVDS]), based on the C&P examination, citing forward flexion of 30 degrees or less. The panel agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees) as reported on the VA examination, which was most proximate to the date of separation. There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.

While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty. The panel therefore concluded that an additional disability rating was not justified on this basis. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the DDD, L5/S1 producing right leg pain, coded 5243.

BOARD FINDINGS: In the matter of the degenerative disc disease, L5/S1 producing right leg pain, the panel majority recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a. The single voter for dissent recommends no change or re-characterization, and did not elect to submit a minority opinion. 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	
Degenerative Disc Disease, L5/S1 Producing Right
Leg Pain	5243	40%	

The following documentary evidence was considered:

2	PD-2019-00167

DEPARTMENT OF THE NAVY
SECRETARY OF nm 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 18 Jun 20

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 7 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 40 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.