RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX		CASE:  PD-2014-00633
BRANCH OF SERVICE:  NAVY		SEPARATION DATE:  20070105

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Seaman) medically separated for a back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty [LIMDU] and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “acquired spondylolisthesis” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated acquired spondylolisthesis as unfitting, rated 20% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB (FPEB) which adjudicated acquired spondylolisthesis as unfitting but rated 40% with a 20% deduction determining the condition existed prior to service (EPTS).  The FPEB also adjudicated irritable bowel syndrome as Category III (a condition that not separately unfitting and does not contribute to the unfitting condition).  The CI made no further appeal and was medically separated.

CI CONTENTION:  His service-connected continue to have a negative impact on 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 condition 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 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:

Service FPEB – Dated 20060916	VA* - (6.5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Acquired Spondylolisthesis	5239-5241	20%	Spondylolisthesis, status post L5-S1 Lumbar Fusion and Post-Operative Scar	5241	0%	20070723	
Other x 1 (Not in Scope)	Other x 1	20070723	
Combined:  20%	Combined:  0%	
*Derived from VA Rating Decision (VARD) dated 20071001 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Lumbar Spine Condition.  The service treatment record (STR) documents that the CI sustained a back injury in a fall on a ship at sea.  Lumbar spine and sacrum X-rays were unremarkable.  A lumbar spine MRI showed bilateral L5 spondylolysis (deficient development or degradation of a vertebral component [pars interarticularis]) without evidence of spondylolisthesis (forward displacement of vertebra after a fracture).  There was no disc herniation or spinal stenosis (narrowing).  An orthopedic surgery evaluation noted moderate pain with flexion and moderate tenderness in the lumbar spine.  Flexion was 40 (90 normal) degrees with full range-of-motion (ROM) in all other directions.  Strength, sensation, and deep tendon reflexes (DTRs) were normal.  The CI underwent serial, bilateral, L2-L5 spinal injections (medial branch block [MMB]) and a right L2-L5 radiofrequency neurolysis (radiofrequency ablation [RFA]) by pain management without significant relief.  A lumbar spine X-ray showed bilateral L5 spondylolysis (L5 pars interarticularis defects) without evidence of spondylolisthesis and L5-S1 degenerative disc disease.  An orthopedic surgery encounter documented “Magnetic resonance imaging of the lumbar spine showed the following:  there is evidence of intervertebral space spondylolisthesis, narrowing, dessication, annular bulging, facet hypertrophy at the L4-L5 level.  Radiographs of the lumbar spine showed the following:  there is evidence of intervertebral space spondylolisthesis at the L4-L5 level.”  The assessment listed spondylolisthesis, status post RFA on right side and MBB on left side, with no improvement.  The plan was for physical therapy (PT) and a PEB.  The MEB narrative summary (NARSUM) was completed 10 months before separation and 4 months pre-operatively.  It cited a back exam the examiner had performed 13 months pre-operatively and additionally documented “Most Recent Exam Findings: persistent stiffness.”  The diagnosis listed acquired L5-S1 spondylolisthesis that “Existed Prior To Enlistment.”  The CI underwent an L5-S1 minimally invasive lumbar interbody fusion (MiLIF) procedure.  A PT examination, 4 months prior to separation and 57 day post-operatively, performed thoracolumbar spine ROM measurements for the PEB.  It documented flexion of 25 (90 normal), extension of 5 (30 normal), left lateral flexion of 15 (30 normal), right lateral flexion of 10 (30 normal), left lateral rotation of 15 (30 normal), and right lateral rotation of 22 (30 normal) degrees.  The therapist observed “moving very cautiously, gait is mildly antalgic, holds spine rigid … s/p lumbar spine fusion, now with pain, decreased endurance, decreased strength secondary to lack of exercise.”  Spine X-rays showed an unremarkable cervical, thoracic, and lumbosacral spine except for the L5 and S1 posterior stabilization hardware.

The VA Compensation and Pension (C&P) exam, performed 7 months after separation, recounted the history and interventions.  It documented “Current symptoms include stiffness and pain…located in the lower back…on a constant basis and occasionally radiates to both lower extremities.  The pain is described as ‘aching’ and occasionally ‘sharp’ with a severity level of 10/10.” Pain was exacerbated by activity and relieved with rest or medication.  There was no physician recommended incapacitation, other types of treatment, prosthesis, or significant functional impairment.  The physical exam revealed a normal posture and gait without use of an ambulatory device.  The lumbar spine exam revealed no deformity, ankylosis, muscle spasm, tenderness, or radiation of pain on movement.  Straight leg raise tests (assesses sciatic nerve root compression by a herniated disc) were negative in the supine and sitting positions.  There was full ROM with flexion of 90 (90 normal), extension of 30 (30 normal), left and right lateral flexion of 30 (30 normal), and left and right lateral rotation of 30 (30 normal) degrees.  After repetitive motion, the lumbar spine ROM was not further limited by pain, fatigue, weakness, lack of endurance or incoordination.  Strength, sensation, and DTRs were normal.  There was no evidence of a sensory or motor peripheral neuropathy.

The Board directed attention to its rating recommendation based on the above evidence.  The Board does not challenge service EPTS determinations, but does exercise the prerogative of assessing the Presumption of Service Aggravation (PSA) element IAW DoDI 1332.38 (E3.P4.5.2.3. - Presumption of Aggravation).  The FPEB rated the lumbar spine condition at 40% coded 5239-5241 (Analogous for spinal fusion).  The PEB applied an EPTS deduction of 20% for a resultant total of 20%.  The PEB recorded that spondylolisthesis has a propensity to be congenital and warranted consideration of an existence prior to service (EPTS) reduction.  Citing pain, ROM, EPTS, and military service aggravation, the acquired spondylolisthesis was most appropriately rated at 40%, with reduction by 20% for EPTS.  The VA, cited the C&P exam 7 months after separation, rated the lumbar spine condition at 0% (5241).  The VA cited normal ROM and absence of pain, radiation, spasm, guarding, tenderness, abnormal gait, or abnormal spinal contour.  Board majority agreed that, based on the limitation of motion in evidence on the respective exams, the corresponding ratings by the PEB and VA were appropriate.  The thoracolumbar spine ROM measured by PT 4 months prior to separation for the FPEB was performed 57 days post-operatively.  The decreased ROM, strength, and endurance, plus residual pain, were the expected sequelae in the immediate post-operative period.  Once the CI had an appropriate period of recovery, he had near complete resolution of symptoms, and restoration of full ROM.  These findings are evident in the C&P exam, 12 months post-operatively.  Recognizing the temporal relationship, the Board majority assigned higher probative value to the C&P exam because it occurred after surgery and an appropriate period of convalescence.  Other routes to a rating higher than the PEB’s 20% were considered, but there was no evidence of additional functional loss from repetitive use to warrant application of VASRD §4.45; and no evidence of incapacitating episodes that would justify a minimum rating under the alternative formula for rating intervertebral disc disease.  After due deliberation, considering all of the evidence, and mindful of VASRD §4.3 (Reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lumbar spine condition.

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 lumbar spine condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication.  The single voter for dissent, submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration. 

The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140131, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	

MINORITY OPINION: Based on VASRD §4.3 (Reasonable doubt), the minority finds the CI’s spine condition at the time of separation supports a 40% rating versus the majority vote 20% recommendation.

The range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at the majority and minority rating recommendations, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT exam for FPEB
~4 Mo. Pre-Sep	Post FPEB &
PT Exam	VA C&P General
~7 Mo. Post-Sep	
Flexion (90 Normal)	25 = 40%	No other ROM exam performed 
Before separation	90	
Extension (30)	5		30	
R Lat Flexion (30)	10		30	
L Lat Flexion (30)	15		30	
R Rotation (30)	22		30	
L Rotation (30)	15		30	
Combined (240)	90		240	
§4.71a Rating	40% PEB rating without EPTS deduction		0%	

It is the minority member’s position that the FPEB’s existed prior to service (EPTS) deduction should have not been applied.  Based on provisions found DoDI 1332.38, the FPEB did not cite accepted medical principles detailing how the CI’s back condition merited a 20% deduction.  The evidence showed that on 16 January 2005, the CI injured his back when he fall on a ship during 30 foot seas.  Additionally, the CI’s service entry exams and prior to the “fall” service treatment records are all silent to “any” back condition.  Therefore, the PEB did not reach a level of “virtual certainty” (a standard higher than the preponderance of evidence) to conclude the CI merited an EPTS deduction.

The minority member concedes the CI did not have a stable back and was still recovering from surgery; therefore, he could have been placed on the Temporary Disability Retirement List for further evaluation, but this action was not taken.

The minority member also concedes the CI’s back condition showed improvement 7 months after separation as documented by the VA C&P exam; however, two subsequent VA C&P exams document a deterioration of the CI’s back condition.

Lastly, the minority member finds the PT ROM exam most probative in value as it is most proximate to the date of separation.  There was no other examination performed until the VA C&P exam 7 months after separation.  Hence, there is not “objective” means to determine a different rating at the time of separation.  Accordingly, the minority finds it speculation to conclude the CI’s back condition was anything but 40% on the date of separation.

RECOMMENDATION:  The Board minority, therefore, recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  acquired spondylolisthesis 5241 (Spinal fusion) at 40%.

 
MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 1 Feb 16

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN   
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 

			XXXXXXXXXXXXXXX
	     		Assistant General Counsel
			(Manpower & Reserve Affairs)