RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02983
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150722
SEPARATION DATE:  20060715

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Flight Line Mechanic) medically separated for a back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was placed on light duty and referred for an Medical Evaluation Board (MEB).  “Closed fracture of dorsal (thoracic) vertebra without mention of spinal cord injury” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB determined the CI was fit to continue on active duty.  The CI requested a Reconsideration PEB which affirmed the fit to continue on active duty finding.  The CI appealed to the Formal PEB which adjudicated “stable anterior column compression fracture of the T12 thoracic vertebra” as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no other appeal and was medically separated.

CI CONTENTION:  “Please consider all conditions”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited 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 PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board 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 FPEB – Dated 20060502	VA* - (4 Days Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Stable Anterior Column Compression Fracture of the T12 Thoracic Vertebra	5243	10%	S/P Compression Fracture, T11 & T12, Thoracic Spine	5243	20%	20060711	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 8	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20060908 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Thoracic Spine Compression Fracture Condition.  The narrative summary (NARSUM) noted the CI sustained a compression fracture of a lower thoracic vertebra (referred to as T11 in the service treatment record and T12 by the NARSUM) in a motorcycle accident in March 2005.  The CI was treated non-operatively with a back brace and medications.  An initial MEB was terminated by the PEB on 6 October 2005 due to insufficient time for recovery.  Thoracic X-rays showed the stable compression fracture with good alignment.  The CI was referred for physical therapy and was also treated by a chiropractor without resolution of his pain.  According to the NARSUM, serial X-rays showed minimal vertebral deformity without progression.  An orthopedic MEB addendum on 6 February 2006, 5 months prior to separation, noted range-of-motion (ROM) of flexion to 90 degrees, with reduced extension of 5 degrees (normal 30) and lateral bending of 20 degrees (normal 30) bilaterally.

At the MEB exam on 12 April 2006, 3 months prior to separation, the CI reported back pain with radiation down both lower extremities (LE), right greater than left, and use of pain and muscle relaxant medications as needed   The MEB physical exam noted tenderness to palpation of the lower thoracic and upper lumbar spine area.  Back ROM was flexion of 25 degrees (normal 90), and combined ROM of 70 degrees (normal 240).  Straight leg raise testing was positive on the right.  Strength, sensation, and reflexes of the LE were normal.  Single leg stance with either leg increased back pain.

At the VA Compensation and Pension (C&P) exam 11 July 2006, a month prior to separation, the CI reported a recent boating accident had aggravated the fracture.  He reported constant lower back pain with radiation to both LE, without flare-ups.  He reported numbness, weakness, and “bowel and bladder problems” and that he was incapacitated for 25 days in the last year due to the lower back condition.  The exam noted a “hunched over” posture and a mildly antalgic gait, but also later in the exam normal posture and gait were noted with a normal appearance of the spine described as “symmetrical in appearance.”  Back ROM was flexion of 45 degrees, and combined ROM of 105 degrees and there was no additional loss of ROM with repetition.  The VA examiner noted X-rays were consistent with compression fractures of the 11th and 12th thoracic vertebrae.

At a VA C&P neurological exam the same day, the CI reported back pain with numbness and tingling down both LE on the outside of the calves.  The exam noted a “minimally antalgic” gait.  Lower extremity strength, sensation, and reflexes were normal.  Bilateral straight leg raise was positive bilaterally.  The CI could stand on either foot and heel walk, but had difficulty with toe walking.  The examiner indicated that there were no objective neurological findings on exam, but was planning to order a lumbar magnetic resonance imaging (MRI).  There were no original MRI reports in record, but the VARD on 29 January 2010 indicated that the CI had three MRIs in his record from 2006, January 2009, and December 2009, and reportedly none of those scans showed evidence of nerve impingement or foraminal stenosis.

The Board directed attention to its rating recommendation based on the above evidence.  The FPEB adjudicated the thoracic spine condition as unfitting and rated 10%, coded 5243 (intervertebral disc syndrome) and the VA also coded the thoracic condition as 5243, but rated 20%, based on forward flexion of 45 degrees.  The Board noted that variable ROM was noted at the exams cited above.  The MEB orthopedic addendum exam was consistent with a 10% rating IAW VASRD rules for rating the spine in effect on the date of separation; the MEB exam a 40% rating; and, the C&P a 20% rating.  The Board deliberated how to reconcile the discrepancies between the ROM noted at each exam.  The Board considered that there was no explanation provided by the CI or the MEB examiner for the worsened ROM at the MEB exam.  Muscle spasm was not noted on any exam; however, the CI was often noted to have an antalgic gait and was treated with muscle relaxants as needed.  The Board concluded from the totality of the evidence in record that the reduced flexion at the MEB exam may have been due to muscle spasm or a “bad day” for pain, but that the CI’s back ROM was not permanently or frequently that restricted.  On the other hand, the majority of exams noted flexion ROM of less than 60 degrees and therefore, members agreed the 10% rating was exceeded.  Thus, the Board agreed that the thoracic condition met a 20% rating and no higher based upon limited ROM and there was no evidence of ankyloses of the spine for a higher evaluation.  The Board reviewed to see if a higher evaluation was achieved rating based upon incapacitating episodes, however, there was no evidence in the records of incapacitating episodes, defined by the VASRD as an “period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.”  At the C&P General exam the CI reported that he was “incapacitated for 25 days in the last year.”  The Board notes that there is no evidence in record that the CI’s self-reported “incapacitation” satisfied the VASRD definition, but also notes that in this case it is a moot issue since incapacitating episodes “of at least two weeks but less than four weeks during the past 12 months” also support a 20% rating and no higher.

The Board also considered if there was evidence in the record to support recommending a LE radiculopathy as separately unfitting and eligible for additional disability rating.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  Proximate to separation the CI had reported bilateral LE radicular pain and numbness, and at the C&P exam he also reported weakness and bowel and bladder problems.  However, strength, sensation, and reflexes were normal throughout the record; the VA neurologist noted no objective findings of a radiculopathy on exam; and, there was no evidence on MRI support a diagnosis of radiculopathy related to thoracic condition.  Pain (whether or not it radiates) is subsumed under the general spine rating as specified in §4.71a and since no evidence of a motor or sensory deficit associated with functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the thoracic spine condition, coded 5235 (vertebral fracture or dislocation).

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 20% for the thoracic spine condition, coded 5235.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Thoracic Compression Fracture 	5235	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140618, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
	         DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
      (b) PDBR ltr dtd 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX   	 
      (c) PDBR ltr dtd 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 18 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
      (l) PDBR ltr dtd 18 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (l) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

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

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

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

     d. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge. 

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

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

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

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

     h. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

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

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

     k. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.
     
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

	XXXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs