RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02163
BRANCH OF SERVICE:  NAVY	SEPARATION DATE:  20070518

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Aviation Structural Mechanic, medically separated for “L1 compression fracture” with a disability rating of 20%.

CI CONTENTION:  Current condition supports a higher rating.  Additional unfitting conditions were not considered.  The complete submission is at Exhibit A.

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20070326	VARD - 20070723	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L1 Compression Fracture	5241	20%	Status Post L1 Fracture with Fusion	5235-5241	20%	20070220	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

L1 Compression Fracture.  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI sustained an L1 compression fracture in June 2002 after falling off a helicopter while performing maintenance.  She underwent a T10 to L3 fusion, recovered, and was released for full duty.  In May 2006, she reported a 3-month history of significantly increasing back pain.  X-rays revealed a healed L1 fracture with no dynamic instability, and L2/L3 screws present bilaterally with solid fixation to bilateral rods.  

On 2 November 2006, the CI underwent surgical removal of four lumbar pedicle screws, two titanium rods, and one wire cable from the fused L2-L3 area.  Sub-laminar wires in T10 and T11 were no longer connected to the upper portions of the rods bilaterally and the failure caused approximately 15 degrees of kyphosis (forward rounding of the upper back).  Post-operative X-rays demonstrated interval removal of posterior rods and screws with a likely retained suture anchor above the L1 vertebral body.  Six weeks after hardware removal, the CI stated her back pain was “still bad” though slightly improved post-surgery.

At the 13 December 2006 MEB NARSUM examination, 5 months prior to separation, the CI reported significant back pain with all activities.  Physical examination showed her height at 65 inches and weight at approximately 225 pounds.  The surgical scar was well-healed but tender.  Range of motion (ROM) was “good” in forward flexion, extension, and lateral bending and combined ROM was incomplete; painful motion was not addressed.  Gait and the neurological examination was normal with negative straight leg raise testing for radiculopathy.  Spinal muscle spasm was absent, and guarding was not addressed.  There was 15 degrees of kyphosis at the surgically repaired fracture site.  Spine X-rays on 13 December 2006 demonstrated stable anterosuperior compression deformity of L1 with stable postsurgical changes, and no instability on flexion and extension views.  During the 11 January 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, physical examination showed the CI’s height to be 65 inches and weight 250 pounds.  There was L1-L4 tenderness with limited ROM, normal strength, and intact sensation.  Gait and guarding were not addressed.

At the 16 February 2007 VA Compensation and Pension (C&P) spine evaluation, 3 months before separation, the CI reported daily low back pain which limited sedentary work.  She weighed approximately 245 pounds, and physical examination revealed a slightly tender, well-healed scar and no muscle spasm.  The examiner documented “very definite limitation of motion” with associated pain and a “very slight lordosis” (inward curvature of the lower back).  Flexion was to 30 degrees and combined ROM was 120 degrees (normal 240), with painful motion.  Lumbar spine X-rays suggested a transitional development at the lumbosacral level with what appeared to be an old T12 compression fracture as well as evidence of T11-12 degenerative changes.  Minute wire fragments were noted at the proximal end of the surgical area at approximately T10 to T12.  The examiner suspected the fusion was “not 100% solid” and indicated additional lateral flexion and extension X-ray views might be required.  The examiner also opined that the CI had a “significant” back disability based on advanced structural changes related to the initial injury, secondary arthritic changes, and surgical procedures.  She could not run/jump, sit or stand for prolonged periods, or tolerate repeated bending and lifting.  The possibility of a fusion nonunion was considered, but there was no definitive evidence of instability or incoordination.  The examiner noted pain with associated weakness, fatigability and lack of endurance.

At the 2 March 2007 MEB NARSUM addendum examination, 2 months prior to separation, physical examination showed flexion to 90 degrees and a combined ROM of 240 degrees.  The examiner recorded no change in the CI’s condition or interval history since the completion of the MEB NARSUM.  Consequently, the panel agreed that the CI’s weight was approximately 225 pounds as noted on the MEB NARSUM.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the L1 compression fracture condition 20%, coded 5241 (spinal fusion), citing surgery complicated by instrumented fixation and resultant focal kyphosis.  The VA also rated the back condition 20%, dual coded 5235-5241 (vertebral fracture or dislocation-spinal fusion), based on the C&P examination 3 months before separation, citing flexion to 30 degrees with painful motion, slight lumbar spine lordosis, positive straight leg raising testing, X-ray findings of post-fusion and degenerative discogenic (pain from the damaged vertebrae) disease and STR findings of focal kyphosis.

The panel majority agreed there was no ROM evidence to support a rating higher than that 20% rating adjudicated by the PEB.  Although the VA examination recorded flexion to 30 degrees which supports a 40% rating, the panel majority determined the totality of evidence represented by the MEB (DD Form 2808), NARSUM and NARSUM addendum ROMs examinations, proximate to separation, did not support a 40% rating.  The panel majority also considered the CI’s weight in relation to these ROM examinations proximate to separation, noting she was over 200 pounds for all examinations.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which 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 panel majority concluded there was insufficient cause to recommend a change in the PEB adjudication for the L1 compression fracture condition.

BOARD FINDINGS:  In the matter of the L-1 compression fracture and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150804, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion.  The minority voter recommends a 40% rating was justified for limitation of flexion not greater than 30 degrees as reported on the VA C&P Spine evaluation, which was just 14 days before the NARSUM Addendum that reported the CI had a normal range of thoracolumbar motion with 90 degrees forward flexion with no interval changes in history.  However, at the MEB NARSUM examination on 13 December 2006, the CI stood 65 inches in height, weighed approximately 225 pounds, had diffuse tenderness to palpation around the mid thoracic to mid lumbar spine, and had a good range of motion in forward flexion, extension, and lateral bending.  What is difficult to fathom is how the CI was measured to have a flexion of 30 degrees forward flexion just 14 days earlier at the VA spine examination and then the 90 degrees forward flexion at the MEB NARSUM Addendum examination.  What accounted for that 60 degrees of improvement was not mentioned, and furthermore, the VA findings were more consistent with earlier measurements as well as X-ray findings.  The MEB NARSUM Addendum, performed at the direction of the PEB, did not even address the known kyphosis of approximately 15 degrees nor was there any comment on tenderness or painful motion.  Furthermore, and more importantly the MEB NARSUM Addendum examiner did not mention the CI’s body habitus of being 65 inches tall and weighing 250 pounds IAW the General Rating Formula for Diseases and Injuries of the Spine Note (3), which states:  “In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factor not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted.”  An article in the medical literature addressed the effect of obesity on forward flexion (Gilleard W et al.  Effect of obesity on posture and hip joint moments during a standing task, and trunk forward flexion. Int J Obes (Lond). 2007 Feb; 31(2):261-71 and indicated “forward flexion motion of the thoracic segment and thoracolumbar spine was decreased.”  Furthermore, having had the bulk of implants removed, there was an expectation of decrease of motion as noted in the medical literature (Hoppe S, et al.  Short posterior stabilization in combination with cement augmentation for the treatment of thoracolumbar fractures and the effects of implant removal.  Global Spine J. 2017 Jun; 7(4):317-324 where “kyphosis increased up to 12 months after implant removal and the loss of bisegmental (between two segments) correction was 5.0 +/- 4.2 (range 0 degrees to 16 degrees 12 months after implant removal.)”  Therefore, to have reported a flexion of 90 degrees at the NARSUM Addendum is inconsistent with a proximate VA examination, X-ray findings, and the medical literature.  However, for the majority to have relied on the NARSUM Addendum without taking into account the changes in ROM and kyphosis is potentially problematic.  However, the panel majority did have credence in favoring a 20% rating as did the PEB and the VA based on an abnormal kyphosis, but neither did the panel majority, the PEB, nor the VA acknowledge the 30 degrees flexion measurement at the VA C&P spine examination that was timely relative to separation and more precise than both antecedent and subsequent examinations.  Furthermore, the General Rating Formula for Diseases and Injuries of the Spine requires a 40% rating for “unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.” The very fact that the measurement was 30 degrees and at the boundary between a 40% rating and a 20% rating, does not preclude the 40% rating since it was not greater than the 30 degrees that warrants a 20% rating.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  Therefore, the minority voter unequivocally recommends a 40% rating for the residuals of the compression fracture and status post fusion from T10-L3.

Therefore, the minority voter recommends the ROP be modified to read:  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the back condition, coded 5235-5242.

In the matter of the L-1 compression fracture, the panel recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a.
	
The minority member 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 the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
L1 Compression Fracture	5235-5241	40%	

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

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44

      In accordance with reference (a), I have reviewed the cases listed below and 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:

		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN

		
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             Acting