RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04137
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20040930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E3, Military Police, medically separated for “posterior lower thoracic pain,” with a disability rating of 10%.

CI CONTENTION:  “Please consider all conditions.”  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 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 - 20040715	VARD – 20070530	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Posterior Lower Thoracic Pain	5241	10%	Residuals of Thoracic Vertebral Compression Fracture	5241	10%	20070412	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Posterior Lower Thoracic Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with fusion in November 2003 for a severe T12 anterior wedge compression fracture.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “posterior lower thoracic pain, secondary to T12 wedge compression fracture with subsequent T11-T12 vertebral fusion…” for PEB adjudication.  During the MEB examination (recorded on DD Form 2807 Report of Medical History and DD Form 2808 Report of Medical Examination) dated 18 February 2004, 7 months prior to separation, the physical examination showed decreased range of motion (ROM), but the examiner did not report objective measurements.  The MEB NARSUM examination on 8 March 2004, 7 months prior to separation, noted complaints of lower thoracic paraspinal muscle spasm.  Physical examination documented a normal gait and revealed left T9-T12 paraspinal muscle spasm with increased thoracic kyphosis (posterior spine curvature).  The examiner reported that she was “stiff but could forward flex reasonably” and that “extension was limited.”  There were no objective ROM measurements in the examination.  At the neurosurgery clinic examination on 9 April 2004, 6 months prior to separation, the examiner recorded that the CI “just began working and going to school, but still has back pain.”  He also recorded that she was doing low impact cardio workouts.  The CI reported numbness in her right heel.  The physical examination documented a normal gait and a tender, well-healed, left-sided thoracotomy scar.  Deep tendon reflexes (DTRs) and the neurologic examination were normal except for decreased pinprick perception in the right heel. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5241 (spinal fusion).  It was noted that muscle spasm associated with abnormal spinal contour was present on the NARSUM examination.  The VA Compensation and Pension examination in record was nearly 3 years after the CI left the Marine Corps and too distant to provide probative value of the CI’s condition at time of separation.  The Board concluded that this was a sufficient basis for a 20% rating (i.e. for muscle spasm severe enough to result in an abnormal spinal contour such as abnormal kyphosis).  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for IVDS.  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  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 back condition, coded 5241. 

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5241 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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Posterior Lower Thoracic Pain	5241	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 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 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX 
	(e) PDBR ltr dtd 27 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX 
	(f) PDBR ltr dtd 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX

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

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

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

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

     c. former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.
 
     d. former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.
     
     d. former USMC: 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.