RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2019-00210 BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20060615

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Advanced Machinery Repairman, medically separated for “low back pain secondary to degenerative disc disease (DDD)” 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 - 20060106	VARD - 20060809	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain Secondary to DDD	5237	20%	Lumbar Spondylosis with History of L4-5 Left Nerve Root Compression	5299-5242	40%	20060123	
Leg Pain	Cat II					
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 60%	

ANALYSIS SUMMARY:

Low Back Pain Secondary to DDD. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in 1999 with no specific injury or accident and her low back pain (LBP) was under control until approximately July 2003. Lumbar spine MRI in January 2004 showed mild congenital narrowing of the central spinal canal and moderate focal narrowing at the L4-5 level due to DDD and facet joint arthropathy with neuroforaminal stenosis (area through which the spinal nerves exit), left greater than right. There was evidence of anterior listhesis of L4 on L5 (slippage of the L4 vertebra relative to the L5 vertebra).

The 8 June 2004 second limited duty (LIMDU) MEB examination (performed by the treating neurosurgeon), 24 months prior to separation, noted complaints of pain occurring in the left lower back with radiation into the buttocks. Physical examination recorded thoracolumbar range of motion (ROM) measurements of flexion to 60 degrees (normal 90) and extension 10 degrees (normal 30). A second period of LIMDU was recommended for 8 months. A lumbar spine MRI

on 1 April 2005, 15 months prior to separation, was not significantly changed from prior MRIs and showed degenerative changes of the lumbar spine worse at L4-5 with likely left-sided contact with both the L4 and L5 nerve roots and moderate central spinal canal stenosis. At the time of the third LIMDU MEB examination (by the same neurosurgeon) on 7 October 2005, 8 months prior to separation, the CI reported LBP and bilateral lower extremity (LE) pain. The LBP was 85% of her pain and the LE pain was 15%. On examination the CI’s gait was normal and LE strength, sensation and reflexes were normal. Surgery for fusion at L4-5 was discussed, but the CI had obtained some relief with radiofrequency ablation (RFA) of the facet joints and a second RFA treatment was going to be performed first, with consideration of surgery in mid-November if it failed. A third 6-month period of LIMDU was requested. At the time of the MEB NARSUM examination (by the neurosurgeon) on 1 December 2005, 7 months prior to separation, the CI reported LBP and right LE pain which went down the back of her LE to the posterior calf, and occasional left LE pain. Physical examination showed a normal gait. Strength and reflexes of the LEs were normal. “Musculoskeletal examination” was described as “unremarkable.” The MEB NARSUM examiner indicated the CI had failed non-surgical treatment.

At the 23 January 2006 VA Compensation and Pension (C&P) examination, 5 months before separation, the CI reported having frequent episodes of symptoms flaring up with significant incapacity. She reported frequent daily radicular symptoms in both LEs radiating to the calf. Physical examination revealed no indication of spasm or weakness, but there was “definite tenderness” across the low back at the lumbosacral level. Back ROM was active flexion to 20 degrees (normal 90) and combined ROM of 90 degrees (normal 240), with “marked painful limitation of low back motion.” Lower extremity strength, sensation, and reflexes were normal and straight leg raise (SLR) testing caused increased LBP, but no radicular symptoms. The VA examiner commented that the CI had evidence of “significant disability” due to DDD and spinal arthritis and the anterior movement of L4 on L5 raised the possibility of mild instability at this level.

The 27 January 2006 MEB neurosurgery consult examination (by another neurosurgeon, for the formal PEB), 5 months prior to separation, noted complaints of LBP, which led to leg pain. Physical examination showed an antalgic gait, significantly favoring the right leg. Low back ROM was described as “significantly limited” (no measurements given), “especially on flexion and extension, but also to some degree with lateral bending, due to pain.” Testing for radicular symptoms with SLR was significantly limited by the CI’s inability to lie flat on her back due to back pain, though no radicular symptoms were noted during limited leg extension. Strength, sensation, and reflexes of the LEs were normal. An addendum written on 30 January 2006 indicated the CI’s symptoms were consistent with neurogenic claudication (impingement or irritation of nerves due to spinal stenosis) at L4-5 and the surgical option of L4-5 decompression was offered. The CI was advised that surgery would only be for the LE symptoms and they may be only partially alleviated and LBP may not respond at all. The CI considered surgery.
and the consult was completed. There is no evidence in record that this ROM was performed.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 20%, coded 5237 (lumbosacral strain). The VA rated the back condition 40%, analogously coded 5299-5242 (degenerative arthritis of the spine) based on the C&P examination, citing forward flexion of the spine to 20 degrees. The panel agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees as reported on the VA examination proximate to separation and supported by the January 2006 neurosurgery examination, as well as examinations in the STR and imaging results. Although the December 2005 MEB NARSUM noted an “unremarkable” musculoskeletal examination, the panel concluded it did not provide ratable evidence to overcome the VA ROM reported in degrees and other evidence in the STR as noted. There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition. The panel noted

the PEB also adjudicated leg pain as a Category II condition, a diagnosis related to the primary unfitting diagnosis and not separately ratable (IAW VASRD §4.14, avoidance of pyramiding). The CI reported radiating LE pain, but neurological examination of the LEs was normal and electrodiagnostic studies showed no evidence of radiculopathy. Pain, whether or not it radiates is properly subsumed in the panel’s VASRD §4.71a rating recommendation for the low back condition. 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 back condition, coded 5242-5243.

BOARD FINDINGS: In the matter of the low back pain secondary to degenerative disc disease, the panel recommends a disability rating of 40%, coded 5242-5243 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; 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	
Low Back Pain Secondary to Degenerative Disc Disease	5242-5243	40%	

The following documentary evidence was considered:

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: 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 23 Mar 20
(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 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 Navy Personnel Command, for correction of your records as stated above.	You will be notified once those changes are complete.