RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-03056 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20090330

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Military Police, medically separated for “lumbago” with a disability rating of 10%.

CI CONTENTION:  “Review all conditions.” 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 - 20081210	VARD - 20090812	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbago	5235	10%	
Vertebral Fracture L1-2	
5235	
10%	
20090622	
Compression Fracture, Anterior Wedge of L2	Cat II					
Compression Fracture, Anterior Wedge of L1						
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 50%	
	
ANALYSIS SUMMARY:

Lumbago. According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in January 2008 after a rollover motor vehicle accident while deployed to Iraq. Conservative treatment failed to resolve the back pain which rendered him incapable of heavy lifting, performing the physical fitness test, or resuming his military police duties. Multiple lumbosacral X-rays and a CT scan showed L1 and L2 anterior wedging. There was no surgical indication.

During the 19 May 2008 MEB NARSUM examination, 11 months prior to separation, the CI reported back pain while resting or during activity. Physical examination was performed by orthopedics on the same day, which revealed “back” flexion to approximately 90 degrees (normal) as the CI was able to toe touch, and a combined range of motion (ROM) of approximately 240 degrees (normal); painful motion was not addressed. Follow-up orthopedic examinations on 20 August and 17 September 2008, 7 months before separation, noted localized spinal tenderness and flexion again to approximately 90 degrees and a combined ROM of 235- 240 degrees, with no mention of painful motion.

At the 22 June 2009 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported continued lumbar spine pain. Physical examination showed a normal gait and posture with back spasm, but no tenderness or guarding sufficient to cause an abnormal spinal contour. Thoracolumbar spine flexion was to 90 degrees and combined ROM was 240 degrees without painful motion or additional ROM loss following repetition.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10%, coded 5235 (vertebral fracture). The Navy PEB’s Category II diagnoses of compression fracture, anterior wedge of L2 and L1 are intrinsic to the rated condition and a separate rating cannot be supported without pyramiding (VASRD §4.14); thus, they are appropriately subsumed under the same rating. The VA rated the back condition 10%, coded 5235, based on the C&P examination, citing the 10% thoracolumbar spine criteria. Panel members agreed there was no limitation of spine motion to support a higher rating than the 10% adjudicated by the PEB. Although there was localized spinal tenderness reported by the orthopedic examinations, and muscle spasm reported on the VA examination (10% criteria), there was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis. There was no evidence 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 back condition 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:

2	PD-2017-03056

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

IN   REPLY  REFER  TD ,
1850
CORB: 003 20May20

From: 

Director, Secretary of the Navy Council of Review Boards 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW  (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr dtd 14 Jun 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy on 5 Mar 2020 for appropriate  action.

2.	On 20 March 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.

Copy to: PDBR