RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01209
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20040915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E-3, Rifleman, medically separated for “grade 1 spondylolisthesis” with a disability rating of 10%.  

CI CONTENTION:  “My injury is with me every day.  It will never be fixed, just kept in check so I can function in life…”  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’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for the unfitting medical condition(s) at the time of separation.  The panel 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, which operates under a different set of laws.  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 - 20040712	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Grade 1 Spondylolisthesis	5239	10%	No VA Examination Proximate to Separation in Evidence	
Left L5 and S1 Radiculopathy	Cat II		
Bilateral L5 Pars Defects	Cat II		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Grade 1 Spondylolisthesis.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began on 17 May 2001 during a training exercise.  An MRI on 23 May 2001 showed spinal stenosis at L4-5, likely congenital, and a minimal disc bulge at L5-S1 with no nerve impingement.  At a neurology appointment on 17 September 2001, there was symmetric give way weakness and sensation was reduced over the right L4, L5, and S1 distributions and also crossed multiple dermatomes on the left; reflexes were intact. The CI was noted to have subjective symptoms, but no clinical or radiographic evidence of a radiculopathy.  His pain persisted and he was referred to neurosurgery.  An MRI indicated a possible pars (part of the bone) defect of L5 bilaterally.  He was placed on two periods of limited duty without resolution of symptoms.  

The 8 June 2004 MEB NARSUM examination, 3 months prior to separation, was prepared by treating neurosurgeon, and noted CI complaints of progressive low back pain associated with left leg pain and numbness over several years.  However, he denied  right leg symptoms, incontinence or sexual dysfunction.  On physical examination, flexion and extension were reduced by 30% combined (to 65 and 20 degrees, respectively, with normal values of 90 and 30) and by 15% in the lateral plane (to 25 degrees with 30 being normal).  Rotation was not recorded.  The left lower leg showed motor function of 4+ for muscles primarily innervated by L4 and L5 and sensory loss for S1.  The reflexes were normal and the CI was thought to have a left L5 and S1 radiculopathy.  No comment was made regarding the gait which had previously been noted to be normal.  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5239 (spondylolisthesis).  The PEB also listed left L5 and S1 radiculopathy and bilateral L5 pars defects as related Category II conditions (contribute to the primary unfitting condition but not separately ratable).  The impairment from the bilateral L5 pars defects was properly subsumed under the overall rating for the grade 1 spondylolisthesis to avoid pyramiding IAW §4.14.  Members considered whether the left lower extremity radiculopathy was separately unfitting and ratable.  In the evaluation most proximate to separation, the CI was noted to have motor weakness by the neurosurgeon.  The panel determined this was separately unfitting and best described by an incomplete paralysis of the tibial neve, analogously coded 8599-8524 and rated 10% at the mild level.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the grade 1 spondylolisthesis condition, but does recommend an additional disability rating of 10% for the L5/S1 left radiculopathy, coded 8599-8524.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends no change in the PEB adjudication.  In the matter of the left lower extremity radiculopathy, the panel determined that it was unfitting and recommends a disability rating of 10%, coded 8599-8524 IAW VASRD §4.124a.  In the matter of the bilateral L5 pars defects, the panel recommends no change in the PEB adjudication.  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	
Grade 1 Spondylolisthesis	5239	10%	
Left L5 and S1 Radiculopathy	8599-8524	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160928, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs} COMMANDER, NAVY PERSONNEL COMMAND

Subj:		PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS 
Ref:	(a)	DoDI 6040.44

1.	Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (h) are approved.	The official records of the following individuals are to be corrected as follows:

a.	XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge.

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

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

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

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

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

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

3.	Please take action to implement these decisions and provide notification
to the above individuals once thoseact

XXXXXXXXXXXXXXXXXX 
Acting