RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX		CASE: PD-2017-04456 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20060115

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E2, Basic Engineer, medically separated for “status post [s/p] L5-L6 fusion for congenital spondylolisthesis and bilateral pars defects,” with a disability rating of 20%.

CI CONTENTION: “Please review my VA treatment records for evidence to support this request.” 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 - 20051128	VARD - 20060419	
Condition	Code	Rating	Condition	Code	Rating	Exam	
S/P L5-L6 Fusion for Congenital Spondylolisthesis and Bilateral Pars Defects	5241	20%	Lumbosacral Spine, S/P 5th to 6th Lumbar Posterior Interbody Fusion	5241	40%	20051110	
Benign Epididymal Lesion	Cat III	Cyst of Right Epididymis	7599-7525	10%	20051110	
Depression	Cat III	Major Depressive Disorder with
Panic Disorder	9499-9434	50%	20051110	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 80%	

ANALYSIS SUMMARY:

S/P L5-L6 Fusion for Congenital Spondylolisthesis and Bilateral Pars Defects. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI, with a history of six lumbar vertebral bodies and bilateral L5-L6 pars defects (spondylolysis), underwent back surgery with an L5-6 posterior lumbar interbody fusion in June 2005 for Grade I spondylolisthesis (a vertebra sliding over the one below it) at L5 and L6 that occurred or was exacerbated after a fall. Lumbar spine X-rays dated 1 September 2005 showed intact hardware with no evidence of listhesis. Postoperatively, he had one scan and MRI in September 2005, which showed the hardware was in a good position, but right leg pain continued despite surgery. Treatment consisted of Neurontin (for nerve pain), but the pain continued in the right leg to the toe.

The 28 September 2005 MEB NARSUM examination, 4 months prior to separation, noted complaints of some right L5 pain into the right big toe with prolonged sitting. Physical examination showed motor function was 5/5 in the upper and lower extremities except for 4/5 weakness in the right extensor hallucis longus and tibialis anterior muscles. Sensory examination demonstrated hypesthesia in the right L5 and S1 distribution and was worse at the L5 distribution. Upper and lower extremities were moderately hyperreflexic with 3+ reflexes and two beats of clonus bilaterally. Specific range of motion (ROM) measurements were not recorded and there was no mention of painful motion or tenderness of the spine. The 12 October 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, revealed the CI ambulated with a cane. Motor strength of the right lower extremity was 4/5 and sensation was decreased on the right in the L5/S1 distribution.

At the 10 November 2005 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported intermittent back pain and some right lower extremity radiculopathy. Physical examination showed evidence of limited motion with flexion to 30 degrees (normal 90) and combined ROM of 110 degrees (normal 240). Bilateral lower extremity deep tendon reflexes were 2+ and symmetrical. Motor strength was 5/5 in all groups of both lower extremities, but sensation was slightly decreased on the right in the L5-S1 distribution. He ambulated with a cane, but did not use any other assistive device or a back brace. X-rays of the lumbar spine were s/p L4-5 posterior laminectomy interbody fusion without complication or acute changes.

The panel directed attention to its rating recommendation based on the above evidence. The PEB coded the back condition 5241(spinal fusion) citing the condition existed prior to service and rated 20%, with a 0% deduction. The VA used the same coding and rated 40%, based on the C&P examination, citing limited motion with flexion to 30 degrees, extension to 0 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally, with a combined ROM of the thoracolumbar spine of 110 degrees; and evidence of slightly decreased sensation to the right lower extremity.

The panel noted the CI had congenital changes of the lumbar spine, but as a result of the fall, there was evidence of service aggravation. Therefore, the panel agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees as reported on the VA examination. There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the back condition, coded 5241.

Contended PEB Conditions: Benign Epididymal Lesion and Depression. The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting. The contended conditions were not noted on limited duty forms, or the non-medical assessment. There was no performance-based evidence from the record that the conditions significantly interfered with satisfactory duty performance at separation. After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended conditions, so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the status post L5-L6 fusion for congenital spondylolisthesis and bilateral pars defects condition, the panel recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a. In the matter of the contended benign epididymal lesion and depression conditions, the panel recommends no change from the PEB determinations as not unfitting. 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Status Post L5-L6 Fusion	5241	40%	

The following documentary evidence was considered:

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

IN REPLY REFER TO
6040
CORB:003 14 May 21

From: Director, Secretary of the Navy Council of Review Boards To:	XXXXXXXXXXXXXX

Subj:	Physical Disability Board of Review Determination Ref:	(a) 6040.44(Series)
1.	The Physical Disability Board of Review (PBDR) reviewed your case in accordance with reference
(a) and forwarded their recommendation for action.

2.	On 23 April 2021 the Assistant Secretary of the Navy (Manpower and Reserve Affairs) accepted the PDBR’s recommendation of an increase in disability rating to 40% and placement on the Permanent Disability Retired List. This decision was then sent to Navy Personnel Command for appropriate action.

3.	The PDBR determination is final and not subject to appeal or review.