RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-00650 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20040930

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Motor Vehicle Operator, medically separated for “L2 Chance fracture, status post surgical fusion” with a disability rating of 20%.

CI CONTENTION: Pain limits his employment and ability to perform tasks, and he requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). 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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the MEB, but determined by the PEB 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. The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate. The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.

RATING COMPARISON:

SERVICE PEB - 20040812D	VARD - 20041028	
Condition	Code	Rating	Condition	Code	Rating	Exam	
L2 Chance Fracture, Status Post Surgical Fusion	5241	20%	Status Post L2 Chance Fracture with Surgical Fusion	5241	50%	20040909	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 50%	

ANALYSIS SUMMARY:

L2 Chance Fracture, Status Post Surgical Fusion. According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent a surgical fusion from T12-L3 on 28 September 2003 after a serious motor vehicle accident that resulted in a Chance fracture (extending from posterior to anterior through the spinous process, pedicles, and vertebral body) at L2. On 10 October 2003, X-rays showed transpedicular screws at T12-L1 and L3 and a fracture line crossing the L2 vertebral body that appeared to extend into the transverse processes. There was normal alignment and minimal loss of height of L2, and disk spaces were well maintained. Despite extensive physical therapy, use of a thoracolumbar sacral orthosis (back brace) for

approximately 7 months, and duty limitations, the CI continued to experience back pain and was unable to return to full duty.

The 3 June 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of continued back pain only slightly improved with the use of a back brace and conservative management. Physical examination showed forward flexion with fingertips to the knees (approximately 45-60 degrees, normal at 90). Other range of motion (ROM) measurements included extension to 20 degrees (normal 30), lateral flexion on both sides to 20 degrees (normal 30), and bilateral rotation to 30 degrees (normal), with a combined ROM range between 165-180 degrees (normal 240). Neurological findings were normal with no evidence of radiculopathy and no mention of abnormal gait or spinal contour, tenderness, guarding, or spasm.

During the 28 June 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported continual back pain since surgery with limitations in bending, standing, running, or carrying heavy items. Physical examination revealed flexion of 90 degrees but reduced ROM during right lateral flexion and rotation.

At the 9 September 2004 VA Compensation and Pension (C&P) examination, 3 weeks before separation, the CI reported frequent flare-ups of back pain occurring at least 4 times daily, each lasting an hour, at a severity of 3/10. He had difficulty lifting, bending, twisting, and crouching, but was able to perform all activities of daily living. He also claimed he had been prescribed bed rest once in the past 12 months for a period of 7 days. Physical examination showed a normal gait and spinal contour, no muscle spasm, and mild tenderness in the lumbar region. Active thoracolumbar ROM measurements were flexion of 35 degrees and combined ROM of 110 degrees, with painful motion, and limitation due to pain (major functional impact), fatigue, weakness, lack of endurance, and incoordination. Back X-rays showed rods extending from the body of T12 to the body of L3, with screws in T12, L1, and L3, and no hardware complications; there was slight narrowing of the L5-S1 disc space.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 20%, coded 5241 (spinal fusion). The VA rated the back condition 50%, also coded 5241, based on the C&P examination, citing objective evidence of painful motion of the thoracolumbar spine with limited motion in forward flexion, lumbar region tenderness, and additional disability due to fatigue, incoordination, lack of endurance and weakness. Members agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) and/or combined ROM (not greater than 120 degrees), as reported on the NARSUM and VA examinations. The panel noted the VA’s 50% rating requires “unfavorable ankylosis of the entire thoracolumbar spine.” While the CI underwent a surgical fusion of T12-L3, which included two (T12 and L1) of the three vertebrae (T11, T12, and L1) representing the thoracolumbar junction, this does not anatomically characterize the entire thoracolumbar spine within the plain meaning of the VASRD as well as IAW Note (5) of the General Rating Formula for Diseases and Injuries of the Spine. Therefore, the panel determined a 50% rating was not applicable. 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 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 for the back condition.

BOARD FINDINGS: In the matter of the L2 chance fracture, status post surgical fusion and IAW VASRD §4.71a, the panel 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:

DEPARTMENT OF THE NAVY
SECRETARY OF TIIB NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD, DC 20374-5023

IN REPLY REFER TO,
1850
CORB: 003
10 Sep 20

From: Director, Secretary of the Navy Council of Review Boards To:	

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) Ref:	(a) DoDI 6040.44
1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department of the Navy on 13 Aug 2020 for appropriate action.

2.	On 27 August 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR ofno change to your characterization of separation or disability rating assigned by the Department of the Navy's Physical Evaluation Board.

3.	The Secretary's decision on your PDBR application is final and is not subject to appeal or additional review by the Board for Correction of Naval Records.