RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00528
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20061015

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Military Policeman) medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and eventually referred for a Medical Evaluation Board (MEB).  “Lumbago” and “acquired spondylolisthesis,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “spondylolisthesis” as unfitting, rated 10%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition (lumbago) was determined to be Category II (contributing to the unfitting condition).  The CI made no appeals and was medically separated.  

CI CONTENTION: His condition continues to worsen and negatively impact his daily activities.  His complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited 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 PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:  

IPEB – Dated 20060828	VA* - (~1 Month Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spondylolisthesis	5239	10%	Back Injury, Status Post L5-S1 Intervertebral Disk Spondylolisthesis and L5-S1 Posterior Lumbar Interbody Fusion	5210-5239	20%	20060907	
Lumbago	Cat II					
Other ME/PEB Conditions x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20061220 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  Back Condition.

The CI sustained a back injury secondary to a fall in August 2005.  Radiographic evaluation demonstrated anterior translation of L5 on S1 (Grade II anterolisthesis).  On 13 January 2006 the CI underwent reduction of the slippage with lumbar inter-body fusion.  Postoperatively his radicular symptoms resolved, but he continued to report 6/10 lower back pain.  The narrative summary (NARSUM) physical examination demonstrated pain-limited motion, a normal gait, and a normal neurologic examination.  At the VA Compensation and Pension (C&P) examination performed a month before separation, the CI reported 7/10 lower back pain.  The physical examination demonstrated a slow, but normal gait and pain-limited motion.  There was no lower back tenderness or muscle spasm.  The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~2 Mo. Pre-Sep	VA C&P ~1 Mo. Pre-Sep	
Flexion (90 Normal)	45	35	
Extension (30)	30	20	
R Lat Flexion (30)	30	30	
L Lat Flexion (30)	30	25	
R Rotation (30)	75 (30)	25	
L Rotation (30)	90 (30)	25	
Combined (240)	195	160	
Comment			
§4.71a Rating	20%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the lower back condition at 10%, coded 5239 (spondylolisthesis).  VA rated the condition at 20%, coded 5239.  Board members agreed that the MEB ROM measurements met the criteria for a 20% rating recommendation.  Board members agreed that the preponderance of the evidence did not support an unfitting radiculopathy for additional ratings.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the lower back condition.  

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that lumbago (lower back pain) contributed to the unfitting condition.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Board members determined that the lumbago was a symptom of the unfitting condition and not a separate condition; therefore, there was insufficient cause to recommend a change in the PEB Category II designation and so no additional disability rating is recommended.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the spondylolisthesis condition, the Board unanimously recommends a disability rating of 20%, coded 5239 IAW VASRD §4.71a.  In the matter of the contended lumbago condition, the Board unanimously recommends no change from the PEB determination.  

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Spondylolisthesis	5239	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140121, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
	         DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 16 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 22 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 28 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 21 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 16 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX 

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (f) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.
       
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)