RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:	CASE:  PD-2017-0558	8
BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20091212
SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E4, Field Radio Operator, medically separated for “chronic low back pain (LBP) secondary to Grade 1-2 spondylolisthesis” with a disability rating of 20%.
CI CONTENTION: “Since my back fusion in 2014 I have been having daily headaches.” The CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). 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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 – 20090731	VARD - 20120125	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP secondary to Grade 1-2 Spondylolisthesis	5239	20%	Lumbar Strain with Grade I Spondylolisthesis	5242	10%	20101208	
Right Side Sciatica	Cat II	Peripheral Neuropathy, Right Lower
Extremity Involving Sciatic Nerve	8521	10%	20101208	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 20%	

ANALYSIS SUMMARY:

Chronic LBP secondary to Grade 1-2 Spondylolisthesis. According to the service treatment record and MEB narrative summary (NARSUM), the CI injured his back on 4 December 2005 during a hard parachute landing. MRI studies on 11 April 2006 revealed bilateral spondylolysis and bilateral foramina stenosis at L5, right greater than the left. Pain persisted despite physical therapy and medication.

At the 10 November 2008 Spine Institute examination, 14 months prior to separation, the CI reported back pain and right greater than left leg pain. On examination there was no visible para spinal muscle spam, no abnormal kyphosis, lordosis, or scoliosis. Tenderness was noted. Range of motion (ROM) of the lumbar spine was flexion of 60 degrees, extension of 20 degrees (with pain) and side bending of 20 degrees.

During the 18 May 2009 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the examiner noted decreased lumbar spine ROM with extension and right lateral flexion. The 28 May 2009 MEB NARSUM examination noted complaints of persistent back pain and right sided sciatica. Physical examination showed lumbar flexion to the right was decreased; pain was elicited with lumbar extension and flexion to the right. Forward flexion and flexion to the left were normal. There were no palpable muscle spasms and straight leg raise testing was normal bilaterally. Neurologic examination was noted as normal.

At the 29 December 2009 pain specialist examination, the CI reported LBP with radiation to his right lower extremity, but improved from his 17 September 2009 examination. There was tenderness over facet joints with lumbar extension and rotation with “some” para spinous spasms. Decreased ROM with lumbar extension and flexion were noted.

At the 8 December 2010 VA Compensation and Pension (C&P) examination, 12 months after separation, the CI reported pain in the low back area with radiation down the posterolateral aspect of the right lower extremity. Physical examination did not reveal any spasm, guarding or tenderness. Straight leg raise testing was negative and reflexes were normal and equal. Tandem walking was “good” and position sensation was normal. Dorsiflexion and plantar flexion of the feet were normal (5/5). Thoracolumbar ROM measurements showed flexion of 100 degrees (normal 90) and combined ROM of 235 degrees (normal 240) associated with painful motion. There was no additional limitation after three repetitions.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 20%, coded 5239 (spondylolisthesis or segmental instability. Additionally the PEB listed right-side sciatica as a related Category II diagnosis is related to and contributed to the primary unfitting condition. The VA rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing combined ROM greater than 120 degrees but not greater than 235 degrees with pain. The VA also rated peripheral neuropathy involving the sciatic nerve, right lower extremity associated with lumbar strain with Grade I spondylolisthesis 10%, coded 8521 (mild, incomplete paralysis of the external popliteal nerve, citing incomplete paralysis of foot movements which was mild.

The panel determined there was no evidence to support a rating higher than the 20% for the back condition 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. The panel then discussed the Category II right-sided sciatica. Panel members concluded the preponderance of evidence revealed there was no evidence that motor weakness existed to any degree that could be described as functionally impairing. Additionally, pain from nerve involvement is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” 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 right-side sciatica as a Category II condition, and therefore no additional rating is recommended.

BOARD FINDINGS: In the matter of the low back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the Category II right- side sciatica condition, the panel agrees it cannot recommend it for additional disability rating. 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:

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

IN REPLY REFER TO :
1850
CORB: 003
10 Sep 20

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

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) Ref:	(a) DoDI 6040.44
1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department of the Navy on 13 Aug 2020 for appropriate action.

2.	On 27 August 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR ofno 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.