RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00113
BRANCH OF SERVICE:  Marine Corps	SEPARATION DATE:  20071031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an E2, Automotive Organizational Mechanic, medically separated for “cervical-thoracicalgia after fracture and hardware fixation” 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 - 20070910	VARD - 20081201	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cervical-Thoracicalgia After Fracture and Hardware Fixation	8712	10%	S/P T2 and T3 Compression Fractures with C7 to T5 Posterior Instrumentation	5235	10%	20081030	
Thoracic Compression Fracture T2, T3	Category II					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Cervical-Thoracalgia after Fracture and Hardware Fixation.  The PEB combined the cervical and neck pain conditions as a single unfitting condition coded 8712 and rated 10%. This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s cervical and thoracic pain condition began in July 2006 after a vehicle rollover accident.  He suffered a T2 and T3 compression fracture, with fracture of the posterior elements.  Radiographic studies showed stable cervical hardware, known upper thoracic and lower cervical vertebral fractures and persistent thoracolumbar levo-convex curvature, positional versus scoliosis.  According to the MEB NARSUM the CI underwent a C7 to T5 posterior instrumentation surgical procedure at the civilian hospital where he was treated after his motor vehicle accident.  Despite treatment, the cervical/thoracic spine condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  The MEB forwarded “cervicalgia” and “pain in thoracic spine” for PEB adjudication.

The MEB NARSUM examination on 11 April 2007 (6 months prior to separation) noted complaints of chronic cervical and thoracic pain without arm or leg pain or numbness.  Physical examination showed a decreased cervical rotational motion and thoracic forward flexion greater than 50 degrees (normal 90 degrees); painful motion was not addressed.  Lower and upper extremity motor strength, and sensation and reflexes were all normal.

At the time of the flight medicine (primary care) clinic appointment on 30 August 2007, 2 months before separation, the CI reported falling on his face while playing soccer resulting in immediate neck pain characterized as 4/10 and 6/10 when the neck was moved.  He denied extremities numbness, tingling or weakness.  On examination there was posterior neck at C3 to C3 tenderness.  Pain was elicited by motion, but there was no crepitus.  X-rays and a CT scan showed no acute changes since his post-surgery imaging.

At the 30 October 2008 VA Compensation and Pension (C&P) evaluation, performed 1 year after separation, the CI reported constant pain between the shoulder blades, right greater than left, and below the right shoulder blade. He reported pain radiation to the left shoulder blade and neck region with prolonged standing.  He denied pain radiation to his extremities.  Physical examination showed significant forward head projection, but not as a result of rounded shoulders (indicative of loss of cervical muscle strength).  There was significant atrophy noted of the in the bilateral upper neck region.  The examiner noted mild winging of the right scapular (indicative of nerve damage).  The cervical spine was non-tender to palpation and the gait was normal.  Deep tendon reflexes were 1+ (decreased) and symmetric in the upper extremities. No cervical ROM measurements were recorded.  The thoracic spine examination demonstrated forward flexion to 70 degrees, extension to 30 degrees with pain.  There was no tenderness to palpation.  Straight leg raise was negative bilaterally.  Deep tendon reflexes were 2+ (normal) and symmetric in the lower extremities.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the cervical and thoracic conditions 10% rating, coded 8712 (lower radicular group neuralgia).  The PEB also listed a Category II condition as “thoracic compression fracture T2, T3” as a condition related to the unfitting condition.  The VA rated the thoracic fracture condition 10%, coded 5235 (vertebral fracture or dislocation), based on the C&P examination 1 year after separation, citing limitation of motion.  The Board first considered if the cervical pain, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The Board noted cervical hardware, consistent reports of cervical pain, and radiographic evidence of healed lower cervical (C6) body fracture.  The Board concluded that the evidence supports the bundled cervical pain condition as reasonably justified as separately unfitting.  The Board then considered the rating recommendation for the unfitting cervical pain condition at the time of separation.  The Board noted consistent reports of pain with use and an acute exacerbation 2 months prior to separation.  The Board also noted cervical muscle atrophy on the VA examination which demonstrates continued disuse post separation.  Board members agreed that the evidence supports a 10% rating for combined cervical ROM greater than 170 and painful motion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the cervical pain condition, coded 5235.

The Board then considered if the thoracic pain, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The Board noted retained thoracic hardware, reports of thoracic pain, and radiographic evidence of healed thoracic body fractures.  The thoracic condition was profiled and implicated in the commander’s statement. The Board concluded that the evidence supports the bundled thoracic pain condition as reasonably justified as separately unfitting.

The Board then considered its rating recommendation for the unfitting thoracic pain condition at the time of separation.  The Board noted thoracic limitation of forward flexion between greater than 50 (MEB NARSUM) to 70 degrees (VA C&P examination) and a combined range of motion between 200 to 230 degrees, respectfully; an acute exacerbation 2 months prior to separation, and cervical muscle atrophy on the VA examination.  Board members agreed that the evidence supports a 10% rating for combined thoracic ROM greater than 120 degrees, but not greater than 235 degrees.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 10% for the thoracic pain condition, coded 5235.

Contended PEB Conditions:  Thoracic Fractures.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended thoracic fracture condition was related to the unfitting condition.  The thoracic fracture resulted in surgical intervention.  Board members agreed that the healed fractures contributed to the unfitting condition and were not separately unfitting.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the cervical pain condition, the Board unanimously recommends a disability rating of 10%, coded 5235 IAW VASRD §4.71a.  In the matter of the thoracic pain condition, the Board majority recommends a disability rating of 10%, coded 5235 IAW VASRD §4.71a.  In the matter of the thoracic fracture condition, the Board unanimously recommends no change in the PEB adjudication.  The single voter for dissent recommended re-characterization to disability retirement and submitted the appended minority opinion.  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	
Cervical Spine Pain	5235	10%	
Thoracic Spine Pain	5235	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140514, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

MINORITY OPINION:  The minority member recommendations the thoracic spine condition be assigned a 20% rating at separation; opposed to the majority vote 10% rating.

STR records were scant.  There were only two thoracolumbar spine ROM examinations found in evidence that were not VASRD spine criteria complete.

The VA C&P examination (12 months after separation) did not address spinal contour or muscle spasm.  Gait was normal without spinal tenderness while ROM was flexion to 70 degree with pain which the Board unanimously agreed supports a 10% rating.

The MEB NARSUM (6 months before separation) did not address gait, spinal tenderness, contour or muscle spasm.  The ROM was flexion >50 degrees (painful motion not addressed), which the minority voter finds supports a 20% rating while the majority finds a 10%.

The minority voter concedes that >50 degrees is not an exact ROM which could be interpreted between 51 to a greater degree.  However the MEB NARSUM examiner selected “50” degrees as the starting point which falls below 60 degrees which supports a 20% rating.

The minority voter finds it reasonable that the CI’s thoracic spine condition at the time of separation reflexed a 50 degrees thoracolumbar flexion based on the MEB NARSUM’s ROM findings most proximate to separation, the CI’s thoracic body fractures, surgical intervention (thoracic hardware) less than 1 year before separation, and failed orthopedic and physical therapy treatment, which rendered the CI unfit for duty.

Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board minority recommends a disability rating of 20% for the thoracic spine condition, coded 5235.

RECOMMENDATION:  The Board minority, therefore, recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Cervical Spine Pain	5253	10%	
Thoracic Spine Pain	5235	20%	
COMBINED	30%	

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

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 17 Nov 16 ICO XXXXXXXXXXXXXXXXXX     
	(c) PDBR ltr dtd 19 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 09 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 19 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 19 Nov 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 09 Nov 16 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (g) are approved.  The official records of the following individuals are to be corrected to reflect the stated disposition below:

     a. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List on date of discharge with a final disability rating of 30 percent (increased from 10 percent). 

     b. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List on date of discharge with a final disability rating of 30 percent (increased from 10 percent). 

     c. XXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List on date of discharge with a final disability rating of 40 percent (increased from 20 percent).   

     d. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List on date of discharge with a final disability rating of 30 percent (increased from 0 percent).

     e. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge.      

     f. XXXXXXXXXXXXXXXXXX, 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.

	XXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)