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

IN   REPLY   REFER  TO:
1850
CORB:003
20 Feb 20

From: To:

Director, Secretary of the Navy Council of Review Boards 
PD-2017-01619 

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr dtd 7 Feb 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy.

2.	On 12 February 2020, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) accepted the recommendation of the PDBR of no 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.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-01619 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20060331

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E-5, Aircraft Communication/Navigation/Electrical Technician, medically separated for “chronic severe thoracic back pain,” with a disability rating of 20%.

CI CONTENTION: “Spinal fusion due to kyphosis. 61 degrees curvature of T-spine, disc herniation T2/T3 and T8/T9.  Fusion of T3-T10.”  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 Medical Evaluation Board (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 - 20051115	VARD - 20060427	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Severe Thoracic Back Pain	5241	20%	Status Post Thoracic Spinal Fusion, T3-T10	5241	20%	20051110	
Scheuermann Kyphosis	Cat II					
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 30%	
	
ANALYSIS SUMMARY:

Chronic Severe Thoracic Back Pain. According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent a T3 through T10 posterior spinal fusion in June 2005 for thoracic kyphosis and Scheuermann disease.   The         16 September 2005 MEB NARSUM examination, 3 months post-surgery and 6 months prior to separation, recorded a history of severe thoracic back pain which was failing medical management. The CI experienced pain bilaterally in his upper back, with intermittent numbness and tingling to his arms.   He denied bowel and bladder symptoms.       Back pain increased with

twisting and turning and arm pain increased when elevating overhead. Physical examination showed a normal gait and stance with good bearing. The CI could walk and heel walk well. Neurological examination was essentially normal. There was tenderness in the cervical thoracic spine in the midline. Five days later, during the 21 September 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported he was still recovering from back surgery and experienced “lots of pain.” Physical examination revealed limited forward flexion and extension of the back without pain. Strength of the right lower extremity was 3/5 and 4/5 on the left side.

At the 10 November 2005 VA Compensation and Pension (C&P) examination, 4 months post- surgery and 5 months before separation, the CI reported constant back pain most significant at the low thoracic spine at a point where by visual inspection, there was a marked forward bend of the spine. Lifting anything at all increased the pain. Repetitive standing and sitting for more than 30 minutes increased the pain. The pain was experienced bilaterally but did not radiate to the lower or upper extremities. The examiner noted the CI reported missing 6 weeks of work due to his back condition; but also noted, the question of duration of any incapacitating episodes in relation to the back condition could not be definitively answered as the CI was only “five months post-surgery” and was “still in the postoperative phase most of that time where he would be expected to have increased pain from the surgery itself.” Physical examination showed a normal gait and the CI used no assistive devices. Examination of the lumbar spine showed forward flexion to 60 degrees (normal 90) with pain and combined range of motion (ROM) of 125 degrees with pain. The examiner noted increased pain of the thoracic spine with repetitive motion, without fatigue, weakness, lack of endurance or change to ROM (negative DeLuca factors).

The panel directed attention to its rating recommendation based on the above evidence. Both the PEB and VA rated the chronic severe thoracic back pain 10% and 20%, respectively, with both ratings coded 5241 (spinal fusion). The PEB also annotated “Scheuermann Kyphosis” as a related Category II condition which contributed to the unfitting condition but was not separately ratable. The VA, based the rating on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.

The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), as reported on the VA C&P examination. The panel held this examination to be the most proximate to date of separation and the most VASRD- compliant. The Navy PEB listed the Scheuermann Kyphosis condition as a related diagnosis (Category II) that contributed to the disability in this case. The panel agreed that this diagnosis was related to the unfitting condition and was not a condition which could be separately rated IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited). There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition. 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 chronic severe thoracic kyphosis back pain.

BOARD FINDINGS: In the matter of the chronic severe thoracic kyphosis back pain 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.