RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01597
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20041115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Combat Illustrator, medically separated for “grade 1 L5-S1 lumbar spondylolisthesis” with a disability rating of 0%.   

CI CONTENTION:  She was pain-free at service entry but had significant pain upon discharge.  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 PEB, but determined 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.  Furthermore, the panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating 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 the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040819	VARD - 20060306	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Grade 1 L5-S1 Lumbar Spondylolisthesis	5239	0%	Degenerative Disease L4-5 and L5-S1 Lumbosacral Spine	5242	10%	20060214	
Low Back Pain	Cat II					
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10% 	

ANALYSIS SUMMARY:  

Grade 1 L5-S1 Lumbar Spondylolisthesis.  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began during basic training in August 2001.  X-rays revealed an L5-S1 grade 1 retrolisthesis and an MRI showed degenerative disk disease and bulge at L4-L5, with L5-S1 left disk protrusion causing stenosis.  

At the 20 April 2004 MEB NARSUM examination, 7 months prior to separation, the CI complained of low back pain.  The examiner noted she received no spine care between August 2003 and April 2004.  Physical examination showed a normal gait and heel-toe walk, mild tenderness in the bilateral perilumbar region, and normal strength and reflexes with sensation intact.  Range of motion (ROM) measurements were not recorded, however, the examiner noted pain at the extreme of flexion.  Electromyography studies on 12 July 2004 were negative for radiculopathy.    

The 14 February 2006 VA Compensation and Pension (C&P) evaluation, 15 months after separation, noted CI complaints of “numbness and pins and needles in the lateral side of the left thigh on and off” without functional impairment.  Physical examination revealed normal lumbar lordosis, posture, and gait; and no spasm, weakness, tenderness, or pain.  Sensory and motor tests were within normal limits.  ROM measurements showed flexion to 80 degrees (normal 90) with a combined ROM of 230 degrees (normal 240).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5239 (spondylolisthesis), citing interference with adequate performance of required military duties.  “Low back pain” was listed as a related Category II condition (contributes to the primary unfitting condition but not separately ratable), but the impairment from the low back pain was properly subsumed under the overall rating for the “grade 1 L5-S1 lumbar spondylolisthesis” IAW §4.14 (avoidance of pyramiding).  The VA rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), citing limited motion. Although there was insufficient limitation of motion to support a 10% rating, the panel agreed a 10% rating was justified for the presence of painful motion and tenderness.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the grade 1 L5-S1 lumbar spondylolisthesis condition, coded 5239.  

BOARD FINDINGS:  In the matter of the grade 1 L5-S1 lumbar spondylolisthesis condition, the panel unanimously recommends a disability rating of 10%, coded 5239 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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Grade 1 L5-S1 Lumbar Spondylolisthesis	5239	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161022, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment 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
	(b) PDBR ltr dtd 12 Feb 18 ICO XXXXXXXXXXXXXXXXXX 
	(c) PDBR ltr dtd 17 Feb 18 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 18 Feb 18 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 12 Feb 18 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 17 Feb 18 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 17 Feb 18 ICO XXXXXXXXXXXXXXXXXX    
	(h) PDBR ltr dtd 17 Feb 18 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 12 Feb 18 ICO XXXXXXXXXXXXXXXXXX

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

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

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

     c. XXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 0 percent) effective date of discharge.     

     d. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 percent rating (increased from 20 percent) effective date of discharge.   

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

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

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

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

     e. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Temporary Disability Retired List at time of discharge for six months with a 50 percent rating followed by a permanent rating of 10 percent with entitlement to disability severance pay. 
     
3.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.

XXXXXXXXXXXXXXXXXX
                                  Acting