RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-02697 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20080531

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Aviation Communications Systems Technician, medically separated for “spondylolisthesis at L4-5” with a disability rating of 20%.

CI CONTENTION: “The conditions which rendered me unfit exclude me from employment in the field for which I had training and experience which required me to invest the time to retrain in a new field, seek treatment at VA facilities, and ultimately to utilize GI Bill benefits to survive.” 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 - 20080220	VARD - 20081103	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spondylolisthesis At L4-5	5237	20%	Lumbar DDD L4-L5, Right Lateral Recess Stenosis and Disc Protrusion at T9-T10…	5299-5239	10%	20080908	
Spondylosis	Cat II					
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 10%	

ANALYSIS SUMMARY:

Spondylolisthesis at L4-5 (Back Pain). According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back pain began in 2004 after he lifted heavy equipment. An MRI revealed a single disc bulge at L4-L5 and degenerative changes about the lumbosacral spine. His treatment modalities included physical therapy (PT) and medication. Surgical intervention was not recommended.

The 14 January 2008 MEB NARSUM examination, 4 months prior to separation, noted complaints of back pain. Physical examination (PE) of the lumbar spine revealed flexion to 70 degrees (normal 90) with pain.  Sensory, motor and peripheral strength were normal.

At the 8 September 2008 VA Compensation and Pension examination, 4 months after separation, the CI reported back pain aggravated by prolonged sitting and heavy lifting. The PE of the lumbar spine revealed normal but painful range of motion (ROM).  His gait and posture were normal.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 20%, analogously coded 5237 (lumbosacral strain). The PEB’s Category II diagnosis of spondylosis is intrinsic to the rated condition and a separate rating cannot be supported without pyramiding (VASRD §4.14); thus, it is appropriately subsumed under the primary rating. The VA rated the back condition 10%, analogously coded 5299-5239 (spondylolisthesis or segmental instability), based on the C&P examination, citing flexion to 60 degrees but not greater than 85 degrees.

The panel concluded there was no evidence to support a rating higher than that adjudicated by the PEB. 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. After due deliberation, considering all 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 low back condition.

BOARD FINDINGS:     In the matter of the spondylolisthesis; L4-5 back condition and IAW VASRD
§4.71a, the panel recommends no change in the PEB adjudication. There are no other conditions within the panel’s scope of review for consideration. Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20170327, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

2	PD-2017-02697

DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUN IL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD, DC 20374-5023

IN   REPLY   REFER  TO,
1850
CORB: 003 20May20

From: 

Director, Secretary of the Navy Council of Review Boards 

Subj:  PHYSICAL DISABILITY  BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr <ltd 28 Oct 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy on 5 Mar 2020 for appropriate  action.

2.	On 20 March 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR of no change to your characterization of separation or disability rating assigned  by the Department of the Navy's Physical Evaluation Board.

3.	The Secretary's decision on your PDBR application is final and is not subject to appeal or additional review by the Board for Correction of Naval Records.