RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX                                                        CASE:  PD-2014-03340
BRANCH OF SERVICE:  Marine corps                                                 SEPARATION DATE:  20070131 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Rifleman, medically separated for “closed fracture lumbar spine” with a disability rating of 20%.

CI CONTENTION:  “Please consider all conditions.”  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited 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.  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 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 based upon a 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 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 PEB - 20061212	VARD – 20090724*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Closed Fracture Lumbar Spine 	5235	20%	Degenerative Joint Disease, Thoracolumbar Spine	4242	20%	20080715	
Closed Fracture, Thoracic Spine	Category II					
Pain In Thoracic Spine	Category II					
Fracture Thoracic Vertebral Body	Category II					
Lumbago	Category II					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	
*The original VA Rating Decision (VARD) dated 20070928 was the most proximate to the date of separation, and granted an overall pre-stabilization rating of 100% which subsumed numerous injuries not within the Board’s scope of review (as defined above).  The charted rating was effective 20090401, and the charted rating examination (17+ months after separation) was the earliest post-separation VA evaluation in evidence (no show for earlier scheduled examinations).

ANALYSIS SUMMARY: 

Closed Fracture Lumbar Spine (Subsuming Associated Category II Conditions).  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented a back injury consequent to a motor vehicle accident (MVA) in May 2005.  This resulted in fractures of the vertebral transverse processes (T6-10, L5, no spinal cord or nerve injury), and there were multiple other injuries (not submitted by the MEB).  The CI was recovering from this incident when he suffered another MVA in September 2005, sustaining a “mild” compression fracture of the L1 vertebral body (again no evidence for neurologic injury).  The CI sustained yet another trauma, a motorcycle accident in January 2006 (12 months before separation).  There were no significant spine or other injuries with that incident, although it exacerbated the clinical course of the previous injuries.  The STR documented persistent mid-to-low back pain without persistent radiation or associated neurologic complaints.  Numerous neurological examinations were normal (5/5 motor, normal sensory and reflexes) with none to the contrary.  There was STR documentation of normal gait and spinal contour (occasional mention of gait disturbance), and there was no documentation of incapacitating episodes.  There were serial addendums to the NARSUM providing range of motion (ROM) measurements by physical therapy (PT), and this evidence is charted below.  Spinal surgery was not indicated; conservative treatment did not result in sufficient improvement to allow unrestricted duty; and, the CI was referred for MEB which in turn forwarded “lumbago,” “pain in thoracic spine,” “closed fracture of dorsal [thoracic] vertebra without mention of spinal cord injury,” and “closed fracture of lumbar vertebra without mention of spinal cord injury” to the PEB.
  
The NARSUM examination on 29 June 2006 (7 months before separation) documented “constant” back pain (no radiation or radicular symptoms) with no improvement, stating “any activities performed at work seem to aggravate his pain.”  The final addendum to the NARSUM (November 2006, 4 months later) documented that the CI was improving, with resolution of the thoracic pain but continued lumbar complaints.  The physical examination recorded normal posture, “mild” tenderness, and normal neurological findings (5/5 motor, normal sensory and reflexes).  Thoracolumbar flexion was estimated at about normal, but bilateral rotation was moderately reduced.

As per the footnote to the rating comparison chart, the earliest VA Compensation and Pension (C&P) examination was over a year after separation, and was thus minimally probative to the Board’s recommendation.  It documented that the CI was still not employed “because of the multiple injuries” and affirmed the absence of incapacitating episodes.  The physical examination recorded a normal gait, tenderness without spasm, normal neurological findings, and the ROM measurements charted below.

The ROM examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB  PT
~ 9 Mo. Pre-Sep	MEB  PT
~8 Mo. Pre-Sep	MEB  PT
~3 Mo. Pre-Sep	VA C&P
~17 Mo. Post-Sep	
Flexion (90 Normal)	40	85	40	50	
Combined (240)	170	215	180	120	
Relevant Ratable Findings	-	Abnormal Gait	-	-	
§4.71a Rating	20%	20%	20%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated “closed fracture lumbar spine” at 20% under code 5235 (vertebral fracture or dislocation); and, adjudicated the other four diagnoses submitted by the MEB (listed above) as Category II (contributing to the unfitting condition but not separately ratable).  Members agreed that none of the Category II conditions could be separately coded and rated without violation of VASRD §4.14 (avoidance of pyramiding), and were thus appropriately subsumed in the rating for the unfitting condition.  The relevant VA rating was 20% under code 5242 (degenerative arthritis of the spine), consistent with the 17-month post-separation C&P ROM evidence.  There was no ROM evidence supporting a rating higher than 20%, no evidence for additionally ratable peripheral nerve impairment, and no documentation of incapacitating episodes that would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar spine condition.  

BOARD FINDINGS:  In the matter of the lumbar spine condition (subsuming all of the Category II conditions) and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140622, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 11 Aug 16

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USN

						  XXXXXXXXXXXXXXXXXXXX
	     				  	  Assistant General Counsel
						  (Manpower & Reserve Affairs)