RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03519
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20040310

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E3, Initial Organizational Maintenance Technician, medically separated for “vertebral body hemangiomas benign, non-surgical with upper back pain,” with a disability rating of 10%.  

CI CONTENTION:  His condition continues to worsen and negatively impact his daily activities.  The CI’s complete submission is at Exhibit A.  

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 confined to 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 - 20040129	VARD - 20040825	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Vertebral Body Hemangiomas Benign, Non-Surgical with Upper Back Pain	5299-5295	10%	Herniated Disc at T6-7	5243	20%	20040825	
Mechanical Low Back Pain (LBP)	Category III					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Upper Back.  The service treatment record (STR) documented that the CI sustained a back injury while pushing against a tactical aircraft (F-14 Tomcat) with his back to “bounce” it in an attempt to close inspection doors.  A sick call exam documented no spine tenderness, full range of motion (ROM), negative straight leg raise (SLR) tests, and symmetrical deep tendon reflexes (DTRs).  The assessment listed a strain of the rhomboid muscle (connects scapula with vertebrae).  The CI was prescribed Motrin, a nonsteroidal anti-inflammatory drug (NSAID), a muscle relaxant (Robaxin) and an analgesic/opioid combination (Darvocet).  A thoracic spine magnetic resonance imaging (MRI) showed tiny, focal, multi-level disc bulges (T5-T6, T6-T7, T7-T8), no neural foraminal (nerve root opening) encroachment, and T3 and T5 vertebral segment hemangioma (benign vascular tumor) changes.  The narrative summary (NARSUM), 4 months before separation, recounted the history and interventions.  The CI complained of constant aching pain between his shoulder blades.  Pain was exacerbated by activity, movement, and twisting and relieved by limiting activity.  He denied weakness and incontinence.  The physical exam revealed a slightly kyphotic (posterior spine curvature) posture, slightly protracted scapulae, and a 2 cm leg length discrepancy.  There were no trigger points (tender areas which refer pain to another part of the body) or spasms.  

The SLR, Patrick (assesses hip and sacroiliac joint pathology), and Gaenslen (assesses sacroiliac joint pathology) tests were negative.  The physical exam documented “He had full and restricted range of motion” (considering the context of the exam, the Board agreed the examiner likely meant “unrestricted”).  Strength, sensation, and DTRs were normal.  The CI failed conservative management (activity modification, physical therapy (PT), medications) and was not deemed a surgical candidate.  The diagnoses listed mechanical low back pain (LBP) and nonsurgical, benign vertebral body hemangiomas.  A thoracic spine X-ray was normal.  

The VA Compensation and Pension (C&P) exam recounted the history and interventions.  The CI complained of daily, dull, 4-6/10 pain between his shoulder blades with radiation into the posterior shoulder area.  He reported flare-ups of 8-10/10 pain, 2 to 3 times a week.  The CI complained of associated back fatigability, loss of motion, shoulder weakness, and thumb numbness.  He denied back stiffness and back weakness, unsteadiness, falls, incontinence, erectile dysfunction, or periods of incapacitation.  Pain was exacerbated by activity, prolonged walking and driving, repetitive movement, lifting, and lying on his back and was relieved by avoiding activity, resting, lying on his stomach, and ingestion of an NSAID (Celebrex).  The physical exam revealed a normal posture and gait without mechanical aids or braces.  The spine exam revealed slightly increased thoracic kyphosis with no fixed deformity, spasm, abnormal motion, or guarding of motion.  There was tenderness over the lower thoracic spine.  There was a slight decrease in flexion, and a mild decrease in extension, of the thoracic spine.  There was no change in thoracic spine ROM with repetitive motion, and no lack of endurance, fatigability or weakness.  Lumbar spine active ROM in degrees was flexion of 35 (90 normal), extension of 35 (30), right rotation of 30 (30), left rotation of 35 (30), right lateral flexion of 20 (30), and left lateral flexion of 25 (30).  There was increased lumbar spine pain with repetitive motion and no lack of endurance, fatigability or weakness.  The SLR tests were negative.  Strength and DTRs were normal and pathologic reflexes were absent.  Sensation was normal, except for slightly decreased sensation to light touch on the bilateral fingers.  The diagnosis listed mechanical back pain per history. 

The Board directed attention to its rating recommendation based on the above evidence.  The 2003 VASRD coding and rating standards for the spine were changed to the current §4.71a rating standards on 26 September 2003.  While the MEB, PEB, and date of separation occurred after this date, the PEB rated the upper back condition with a VASRD code consistent with the preexisting rating standard.  The Board, IAW DoDI 6040.44, must consider the appropriate rating for the CI’s back condition at separation based on the VASRD standards in effect at the time of separation.  The PEB rated the upper back condition at 10%, coded 5299-5295.  While the NARSUM listed the diagnosis of mechanical LBP, the subjective complaints (pain between shoulder blades), objective findings by exam (slightly protracted scapulae, increased thoracic kyphosis, and tenderness over the lower thoracic spine), and imaging findings (multi-level thoracic spine disc bulges and T3 and T5 hemangiomas) involved the upper back.  There was no low back condition for consideration and the listed Category III condition, mechanical LBP, was not considered separately unfitting and did not contribute to the unfitting condition.  The PEB cited nonsurgical, benign, vertebral body hemangiomas with upper back pain.  The VA, citing the C&P exam 6 months after separation, rated the upper back condition at 20%, coded 5243.  The VA cited dull achy pain between the shoulder blades, pain with activity, pain flare-ups, medication (Celebrex), no stiffness, no weakness, normal bone scan, normal thoracic spine X-ray, herniated disc at T6-7 by MRI, normal gait, slight increased thoracic kyphosis, painful ROM, and no lack of endurance, fatigability, or weakness after repetitive motion.  

The Board agreed a 10% rating was supported based on VASRD §4.40 (functional loss) or §4.59 (painful motion).  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The critical decision is whether or not there was significant motor weakness which would impact military occupation-specific activities.  There was no evidence that motor weakness or sensory loss existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  While the back exams revealed thoracic tenderness and slightly increased kyphosis, there was no gross deformity, palpable spasms, abnormal motion, or guarding of motion.  The C&P exam documented that the CI had a normal gait without mechanical aids or braces.  The ROM in the C&P exam was consistent with a 20% rating (flexion of greater than 30 degrees but not greater than 60 degrees; or a combined ROM of not greater than 120 degrees of the thoracolumbar spine).  The higher 40% rating would require flexion of the thoracolumbar spine to be 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  Other routes to a rating higher than the PEB’s 10% were considered, but there was no evidence of additional functional loss from repetitive use to warrant application of VASRD §4.45, and no evidence of incapacitating episodes that would justify a minimum rating under the alternative formula for rating intervertebral disc disease.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the upper back condition.

BOARD FINDINGS:  In the matter of the upper back condition, by a majority vote the Board recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  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	
Vertebral Body Hemangiomas Benign, Non-Surgical with Upper Back Pain	5243	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140719, with attachments
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 29 Apr 16 ICO XXXXXXXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 21 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 29 Apr 16 ICO XXXXXXXXXXXXXXXXXXXX 
	(e) PDBR ltr dtd 17 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 16 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX

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

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

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

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

     c. XXXXXXXXXXXXXXXXXXXX: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge. 

     d. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective date of discharge. 

     e. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 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.
	 XXXXXXXXXXXXXXXXXXXX
	 Assistant General Counsel
		(Manpower & Reserve Affairs)