RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01108
BRANCH OF SERVICE:  MARINE CORPs	SEPARATION DATE:  20041031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Basic Marine, medically separated for “thoracic disc herniation at T9/T10 on the right side” with a disability rating of 10%.

CI CONTENTION:  His current back condition supports a higher rating.  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 - 20040807	VARD - 20050929	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Thoracic Disc Herniation…	5237	10%	Disc Herniation	5242	10%	20050822	
Chronic Mid-Back Pain	Category II					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10% 	

ANALYSIS SUMMARY:  

Thoracic Disc Herniation at T9/T10 on the Right Side.  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in 2002 without any specific injury or trauma.  X-rays and MRI showed a thoracic kyphosis with wedge deformity (upper back with an abnormal outward curvature) associated with a herniated thoracic disc at T9-10 with disk extrusion on the right side.  A bone scan on 29 January 2004 was negative; this indicated a chronic condition.  The CI was evaluated by neurosurgery on 3 May 2004.  The neurological examination and flexion (90 degrees) were normal.  The neurosurgeon determined the CI was not likely to benefit from surgery and the rigors of military service were not in his best interests.  
The 16 July 2004 MEB NARSUM examination, performed at an orthopedic surgery clinic 4 months prior to separation, noted chronic-mid-back pain.  Physical examination revealed a normal gait, the ability to heel and toe walk, and no spinal tenderness.  The upper back showed an outward curvature.  Reflexes, strength, and sensory were normal.  Bilateral-provocative testing for radiculopathy was negative.  Range of motion (ROM) showed the CI could touch his fingers to his toes with forward flexion indicating normal thoracolumbar ROM of approximately 90 degrees. Lumbar spine flexion was approximately 85-90 degrees and combined ROM was 235-240 degrees (normal 240); painful motion was not addressed.

At the 22 August 2005 VA Compensation and Pension (C&P) evaluation, 10 months after separation, the CI reported ongoing upper back pain.  Physical examination revealed a normal gait without muscle spasm or tenderness.  Moderate kyphosis was present.  Straight leg testing for radiculopathy was negative.  ROM was “normal.”  There were no signs of intervertebral disc syndrome (IVDS).

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain).  The related Category II condition “chronic mid-back pain” was properly subsumed under the overall rating IAW §4.14 (avoidance of pyramiding).  The VA also rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P evaluation 10 months after separation, citing thoracic pain in the thoracic region.

The panel agreed there was no muscle spasm, guarding, or limitation of spinal motion severe enough to result in an abnormal gait or spinal contour to support a rating higher than the 10% adjudicated by the PEB.  There was no documentation of IVDS 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 concluded there was insufficient cause to recommend a change in the PEB adjudication.

BOARD FINDINGS:  In the matter of the thoracic disc herniation at T9/T10 on the right side condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  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 20160924, w/attachments
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

      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:

		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXX, former USMC

		
	XXXXXXXXXXXXXXXXXXX  					
         Acting