RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:                                                                  XXXXX
          BRANCH OF SERVICE:  marine corps
CASE NUMBER:   PD1001126                                   SEPARATION  DATE:
20061231
BOARD DATE:  20110805


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered  individual  (CI)  was  an  active  duty  Cpl/E-4
(0331, Machine Gunner) medically separated for mechanical  lower  back  pain
(LBP).  The CI sustained lumbar compression fractures of L1 and  L2  in  Aug
2005 when he fell from the running  board  of  his  pickup  truck.   He  was
treated with a back brace (thoracolumbar sacral orthosis) for  three  months
and placed on limited duty (LIMDU).  Subsequent studies  showed  healing  of
his fractures; however, the CI continued to have LBP.  He was  treated  with
physical therapy and pain  clinic  modalities,  without  resolution  of  his
symptoms.   Neurosurgery  found  no  indications  for  surgery  or  invasive
treatment.  The CI did not respond adequately to treatment  and  was  unable
to  perform  within  his  military  occupational  specialty  (MOS)  or  meet
physical fitness standards.  He was continued  on  LIMDU  and  referred  for
Medical Evaluation Board (MEB).   Lumbago  was  forwarded  to  the  Physical
Evaluation Board (PEB) as medically  unacceptable  IAW  SECNAVINST  1850.4E.
Other conditions included in the Disability Evaluation System  (DES)  packet
will be discussed below.  The PEB  adjudicated  continued  mechanical  lower
back pain (due to compression fractures at L1 and L2)  as  unfitting,  rated
10%, with possible application of the SECNAVINST 1850.4E.  The  CI  made  no
appeals, and was medically separated with a 10% disability rating.


CI CONTENTION:  He elaborates no specific contentions  regarding  rating  or
coding; but he does state, “The VA found me to be manic depressant [sic].”


RATING COMPARISON:

|Service IPEB – Dated 20061026  |VA (4 Mo. After Separation) – All       |
|                               |Effective Date 20070101                 |
|Condition                      |Code                            |Rating |
|Combined:  10%                 |Combined:  60%                          |


ANALYSIS SUMMARY:  The Board acknowledges the significant  impact  that  the
CI’s service-incurred conditions have had on  his  current  earning  ability
and quality of life as reflected in his higher total VA  disability  rating.
However, the DES is responsible for maintaining a  fit  and  vital  fighting
force.  While  the  DES  considers  all  of  the  service  member's  medical
conditions, compensation can only be offered for  those  medical  conditions
that cut short a service member's career, and then only  to  the  degree  of
severity present at  the  time  of  final  disposition.   However,  the  VA,
operating under a different set of laws, is empowered  to  periodically  re-
evaluate veterans for the purpose of adjusting the disability rating  should
the degree of impairment vary over time,  as  well  as  considering  service
incurred conditions that were not unfitting for continued service.

Mechanical Low Back Pain.  There were  three  goniometric  range  of  motion
(ROM) evaluations in evidence which the Board weighed  in  arriving  at  its
rating recommendation.  These exams are summarized in the chart below.

|Goniometric ROM -|Neurosurgery  |MEB            |VA C&P          |
|Thoracolumbar    |~4 Mo. Pre-Sep|~ 3 Mo. Pre-Sep|~ 4 Mo.         |
|                 |              |               |After-Sep       |
|Flex (0-90)      |0-60          |0-40⁰          |0-90⁰           |
|Ext (0-30)       |0-10          |0-10⁰          |0-25⁰           |
|R Lat Flex (0-30)|0-10          |0-30⁰          |0-30⁰           |
|L Lat Flex 0-30) |0-10          |0-30⁰          |0-30⁰           |
|R Rotation (0-30)|No data       |0-30⁰          |No data         |
|L Rotation (0-30)|No data       |0-30⁰          |No data         |
|COMBINED (240)   |Incomplete    |170⁰           |Incomplete      |
|Comment          |Mild muscle   |Motor and      |Back pain had   |
|                 |spasm; Neg    |sensory intact;|improved with   |
|                 |SLR; Normal   |normal gait; no|use of etodolac;|
|                 |neuro         |muscle spasm;  |pain with ROM,  |
|                 |              |very little    |Normal gait, no |
|                 |              |segmental      |spasm, no       |
|                 |              |motion         |weakness; no    |
|                 |              |               |greater         |
|                 |              |               |limitation on   |
|                 |              |               |repetition      |
|§4.71a Rating    |20%           |20% (PEB 10%)  |10%             |

At the time of the service exams, the CI was on the pain medication  ultram.
 Both service exams documented compensable limitation of movement  with  the
narrative summary (NARSUM)  examiner  additionally  commenting,  “There  was
very little segmental motion occurring in the thoracolumbar  spine  and  the
majority of the motion was occurring from the lower  lumbar  segment.”   The
neurosurgery examiner also noted some  mild  muscle  spasm,  which  was  not
present at the MEB  exam.   Neither  examination  documented  any  radicular
symptoms or neurologic deficits.  By the time of  the  VA  compensation  and
pension (C&P) exam, four months post-separation, the  CI’s  pain  medication
had been changed from ultram to etodolac, with improvement in his back  pain
symptoms.  The VA examiner noted painful ROM, but  documented  full  flexion
and limited extension.  There was no further ROM limitation  on  repetition.
The CI denied radicular symptoms and the neurologic exam was normal.

A 2006 bone scan found no evidence of acute or subacute vertebral  fracture.
 An magnetic resonance imaging (MRI) in 2006  documented  degenerative  disc
space disease at L4-5 with mild broad-based bulge of the disc, no  foraminal
stenosis or neural compromise, and signs of reparative response  at  L1  and
L2.  On further review of the MRI, the neurosurgeon  additionally  commented
that the healed L1 compression fracture  had  a  15%  decrease  in  anterior
height.   The  non-medical   assessment   (NMA)   noted   significant   duty
limitations due to the CI’s back pain condition  and  concluded  that  “LCPL
Beckman is not worldwide deployable and is not able to fire  a  weapon.   He
cannot stand military watches and will not be fit for  full  duty  within  a
reasonable period of time.”

Both PEB (5237) and VA (5242) coding used the same criteria of  the  general
rating formula for diseases and injuries of the spine,  and  neither  coding
is predominant.  Alternate coding of 5235  may  align  best  with  the  CI’s
clinical history, but also uses the  general  spine  criteria,  and  is  not
predominate.  The degree of lumbar spine ROM limitation  documented  at  the
VA C&P exam was very different (improved) from the limitations noted on  the
service exams.  The Board deliberated  over  the  probative  values  of  the
disparate back  exams.   The  physical  therapy  service  treatment  records
(STRs) all documented limited lumbar ROM, consistent  with  the  limitations
documented by the neurosurgery consultant and the MEB examiner.   The  Board
opined that the improved ROM noted at the VA exam likely represented a post-
separation improvement in condition due to a change in medication, and  that
the service exam was closer to the date of separation and held the  greatest
probative value.  The  ROM  limitation  documented  at  both  service  exams
(forward flexion of the thoracolumbar spine greater than 30 degrees but  not
greater than 60 degrees) meets the criteria for a 20%  rating.   There  were
no radicular symptoms or neurologic deficits documented to support  evidence
of  a  ratable  peripheral  nerve  impairment  in  this  case.   After   due
deliberation considering all of the evidence and mindful of the VA  Schedule
for Rating Disabilities (VASRD)  §4.3  (reasonable  doubt)  and  VASRD  §4.7
(higher of two evaluations), the Board recommends  a  separation  rating  of
20%  for  the  mechanical  LBP  condition,  without  additional  rating  for
peripheral nerve impairment.

Other Conditions.  At the MEB history and physical, the CI  stated  that  he
had problems with depression and anger  management  due  to  his  back  pain
condition.  The CI had a history of alcohol  abuse  (~June  2006).   He  was
treated for chronic pain, stress and anger management and was prescribed  an
anti-depressant (cymbalta),  with  little  benefit.   There  was  no  mental
health-type of duty restriction, LIMDU, or non-LBP  related  implication  in
the NMA.  The MEB physical  indicated  a  normal  psychiatric  exam.   These
conditions were reviewed by the action officer and considered by the  Board.
 The Board  noted  that  the  post-separation  VA  records  showed  a  clear
worsening of the CI’s  mental  health  with  a  formal  diagnosis  of  major
depressive  disorder  (MDD),  single  episode,  severe   without   psychotic
features four months post-separation,  and  a  recent  history  of  domestic
abuse and arrest.  The Board considered the entire  record,  the  impact  of
chronic pain from the CI’s primary unfitting LBP on mental  conditions,  and
the acute stresses of  service  separation  and  post-separation  worsening.
All evidence considered, the Board cannot find sufficient evidence that  the
CI’s mental health conditions were to the level of being  unfitting  at  the
time of separation.  The Board therefore determined that no condition  under
§4.130, schedule of ratings-mental disorders, could be argued  as  unfitting
and subject to separation rating.

Remaining Conditions.  Several  relatively  minor  medical  conditions  were
noted  on  the  MEB  history  and  physical.   These  conditions  were   not
occupationally significant and were not implicated in the NMA.   These  were
reviewed by the  action  officer  and  considered  by  the  Board.   It  was
determined that none could be argued as unfitting and subject to  separation
rating.  The Board therefore has no reasonable basis  for  recommending  any
additional unfitting conditions for separation rating.


BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military  Department
regulations or guidelines relied upon by the PEB will not be  considered  by
the Board to the extent they were inconsistent with the VASRD in  effect  at
the  time  of  the  adjudication.   As  discussed  above,  PEB  reliance  on
SECNAVINST 1850.4E for rating the continued  mechanical  LBP  condition  was
may have been operant  in  this  case  and  the  condition  was  adjudicated
independently of that regulation by the Board.  In the  matter  of  the  LBP
condition, the Board unanimously recommends a rating of 20% coded  5237  IAW
VASRD §4.71a.  In the matter of  the  MDD  (or  any  other  mental  disorder
diagnosis) condition or any other  medical  conditions  eligible  for  Board
consideration, the Board unanimously agrees that  it  cannot  recommend  any
findings of unfit for additional rating at separation.


RECOMMENDATION:  The Board recommends that the CI’s prior determination be
modified as follows, effective as of the date of his prior medical
separation:

|UNFITTING CONDITION                               |VASRD CODE  |RATING  |
|Mechanical Low Back Pain                          |5237        |20%     |
|COMBINED    |20%     |

____________________________________________________________________________
__



The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20100912, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.



                                        Deputy Director
                                                                    Physical
Disability Board of Review


MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION
            ICO XXXXX, FORMER USMC, XXX XX XXXX

Ref:   (a) DoDI 6040.44
          (b) PDBR ltr dtd 16 Aug 11

1.  I have reviewed the subject case pursuant to reference (a) and approve
the recommendation of the PDBR (reference (b)).

2.  The subject member’s official records are to be corrected to reflect
the following disposition:

      a. Separation from the Naval service due to physical disability rated
at 20 percent (increased from 10 percent) effective 31 December 2006.

3.  Please ensure all necessary actions are taken to implement this
decision including notification to the subject member once those actions
are completed.



                                        Assistant General Counsel
                                          (Manpower & Reserve Affairs)