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AF | PDBR | CY2012 | PD-2012-01947
Original file (PD-2012-01947.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD-2012-01947
BRANCH OF SERVICE: marine corps  BOARD DATE: 20140220
SEPARATION DATE: 20060831


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LCpl/E-3 (0431/Logistics/Embarkation and Combat Service Support Specialist) medically separated for a low back condition. The CI was involved in a motor vehicle accident in July 2005, sustaining an L1 burst fracture. He was treated conservatively, but persistent pain eventually led to the condition being unable to be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB). The low back condition, characterized as “closed fracture of lumbar vertebra without mention of spinal cord injury” and “spondylolisthesis, congenital”, was forwarded to the Physical Evaluation Board (PEB). No other conditions were submitted by the MEB. The Informal PEB adjudicated “L1 burst fracture” as unfitting, rated 20%. The PEB found the referred “spondylolisthesis L5-S1” and “retrolisthesis L4-L5” as preexisting conditions. The CI made no appeals and was medically separated.


CI CONTENTION: The CI made no contention on his DD294 application.


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting L1 burst fracture condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records.


 RATING COMPARISON :

Service IPEB – Dated 20060717
 VA - (4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
L1 Burst Fracture 5235 20% Compression Fracture of L1 5242 20% 20061227
Grade I Spondylolisthesis L5-Sl EPTS Other x 5 20061227
Grade I Retrolisthesis L4-L5 EPTS
No Additional MEB/PEB Entries
Combined: 20%
 Combined: 20%
Derived from VA Rating Decision (VA RD ) dated 200 70430 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Low back pain (LBP). In July 2005, this Marine was in a motor vehicle accident and suffered an L1 burst fracture. The fracture healed, but he continued to have LBP. He was treated with conservative, non-operative modalities. After a period of LIMDU, his back pain was refractory to treatment and an MEB was initiated. The MEB physical examination (PE) was in April 2006. At that exam, the CI reported that he had LBP with prolonged walking or sitting. The pain could be relieved with lying down or getting up to walk around. He denied paresthesia or radicular symptoms in the legs. PE revealed no tenderness to palpation (TTP) directly over the spine. Neurological exam of the legs was normal. Range-of-motion (ROM) was measured and is summarized in the chart below.

As noted above, the CI was medically separated from service on 31 August 2006. Four months later, he had a VA Compensation and Pension (C&P) exam. At that exam, there was some TTP in the L1-L2 paraspinal area, but no muscle spasm. Neurological exam of the legs was normal. ROM is summarized in the chart below.

Thoracolumbar ROM
(Degrees)		 MEB ~4 mos. Pre-Sep
(20060428)
 VA C&P ~4 mos. Post-Sep
(20061227)
Flexion (90 Normal) 50 45
Extension (30) 20 25
R Lat Flexion (30) 15 30
L Lat Flexion (30) 20 30
R Rotation (30) 45 30
L Rotation (30) 45 30
Combined (240) 165 190
Comment Pain with motion Pain with motion
§4.71a Rating 20% 20%

The Board carefully reviewed all evidentiary information available and directs attention to its rating recommendation based on the above evidence. The Navy PEB and the VA chose different coding options for the LBP condition, but both assigned a disability rating of 20%. At the April 2006 MEB exam, forward flexion was 50 degrees. Combined thoracolumbar ROM was 165 degrees. At the December 2006 C&P exam, forward flexion was 45 degrees and combined thoracolumbar ROM was 190 degrees. IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a, a 20% rating is warranted when thoracolumbar flexion is greater than 30 degrees, but not greater than 60 degrees.

After a thorough review of the evidence, the Board determined that a disability rating of 20% was appropriate. The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition. The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling spine condition which would justify a rating higher than 20%. The Board also determined that there was no unfitting neuropathy present at the time of separation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the LBP condition. IAW VASRD §4.71a, the LBP condition meets criteria for the 20% rating due to forward flexion greater than 30 degrees, but not greater than 60 degrees.


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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121129, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record






                          
                           XXXXXXXXXXXXXXXXXXXX
                           President
                           Physical Disability Board of Review
MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION
Ref:    
(a) DoDI 6040.44
(b) CORB ltr dtd 4 Aug 14

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, 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:

-        XXXXXXXXXXXXXXXXXXXX, former USMC
-        XXXXXXXXXXXXXXXXXXXX , former USMC
-        XXXXXXXXXXXXXXXXXXXX, former USMC
-        XXXXXXXXXXXXXXXXXXXXX, former USMC







XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel
(Manpower & Reserve Affairs)

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