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AF | PDBR | CY2012 | PD2012 01121
Original file (PD2012 01121.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXX        CASE: PD1201121
BRANCH OF SERVICE: NAVY  BOARD DATE: 20130508
SEPARATION DATE: 20011203


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CTO2/E-5 (CTO-9178/Newsdealer Communications Operator) medically separated for a chronic back condition. The back pain began in 1995 spontaneously without trauma and she was diagnosed with a compression fracture at T11 with degenerative joint disease (DJD) in 2000. The condition could not be adequately rehabilitated to meet the physical requirements of her Rating or satisfy physical fitness standards. She was placed on limited duty (LIMDU), issued a temporary profile and referred for a Medical Evaluation Board (MEB). The back conditions, characterized as “T11 Compression Fracture” and “Chronic Mid Back Pain,” in addition to a hypertension condition, were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The PEB adjudicated the chronic mid back condition as unfitting, rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The T11 compression fracture was determined to be a C ategory II condition contributing to the unfitting condition ; the hypertension condition was determined to be C ategory III, not separately unfitting and did not contribute to the unfitting condition. The CI made no appeals, and was medically separated with that disability rating.


CI CONTENTION: “The condition(s) were incurred and/or aggravated while on active duty. I just ask that my case be reviewed for accuracy and fairness due to a belief of “quick” processing to transition me out of the military due in part to the 9/11 focus/priority.”


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 back condition is addressed below. In addition, the alluded to Category II T11 compression fracture and Category lll hypertension conditions are likewise addressed below. 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 20010719
 VA - (3 Mos. Pre -Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Midback Pain
 5299-5295 10% Old Compression Fx of T11, w/ Lumbar Spine Limitation 5285-5292 20% 20010904
T11 Compression Fx
 CAT II – Related to #1
Hypertension
 CAT III – Not Unfitting Hypertension 7101 10% 20010904
No Additional MEB/PEB Entries
 Other x 2 20010904
Combined: 10%
 Combined: 40%
Derived from VA Rating Decision (VA RD ) dated 200 20319 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Back Condition. The narrative summary (NARSUM) notes that the CI had a 7 year history of mid back pain aggravated by activity such as participation in sports. Conservative treatment had been ineffective. CT scan of the back performed in May 2000 revealed a compression fracture at T11 with evidence of DJD. At the MEB exam, 7 months prior to separation, the CI reported continued pain. The MEB physical exam mentioned tenderness over the left paraspinous muscles but no specific information regarding range-of-motion (ROM), gait, spasm or contour is provided. It is noted that the CI was unable to perform her duties without constant mid back pain and was unable to perform Physical Readiness Training (PRT) without experiencing “severe and debilitating low back pain.” It is noted that she required tricyclic medication for sleep. The enlistment physical examination did not indicate any conditions of the thoracic or lumbosacral spine. The separation physical exam a month prior to separation noted the T11 compression fracture and “decreased ROM.” At the VA Compensation and Pension (C&P) exam performed 3 months prior to separation, the CI reported continued pain which she said was precipitated by prolonged sitting. She said that she was on limited duty at work and was also unable to do household chores at home. On examination, range of motion was measured as follows: flexion to 81 degrees, extension to 14 degrees, lateral bending to 22 degrees on the right and 17 degrees to the left. There was no pain on motion and no postural or neurological abnormalities noted. X-rays performed as part of that exam revealed the old compression fracture anterior T11 without other significant abnormality. The commander’s non-medical assessment (NMA) statement indicated that the CI had not been able to be in full duty status for the preceding
14 months and was unable to complete the PRT to stay within military standards. The NMA recommended she not be authorized another period of LIMDU and not be allowed to remain on active duty in a permanent LIMDU status.

The Board directs attention to its rating recommendation based on the above evidence. The 2001 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine. The earlier criteria were subject to the rater’s opinion regarding degree of severity, as opposed to the more objective current standards with quantifiable rating thresholds grounded in ROM measurements. The 2001 criteria relevant for consideration in the Board’s recommendation are cited in context below.

The PEB characterized the back pain condition as “chronic mid back pain” coded analogously as 5299-5295 (lumbosacral strain) and rated it at 10%, presumably based on characteristic painful motion. The PEB noted an EPTS component with a deduction of 0%. The VA, basing its rating decision on the ROM’s quoted above, characterized the back condition as “old compression fracture of T11, with lumbar spine limitation” coded analogously as 5285-5292 and rated 20% for moderate limitation of motion of the lumbar spine, or demonstrable deformity of a vertebral body from fracture with slight limitation of motion. The Board considered that the VA exam, which was more proximate to the date of separation than the MEB exam, provided more objective data by way of ROM measurements and could be assigned a high level of probative value. It determined that the description of slight limitation of motion in connection with demonstrable deformity of a vertebral body accurately reflected the findings at the time of separation. The Board concluded that while coding analogously as 5295 would result in a rating of 10% in the absence of spasm on forward motion, coding as 5285-5292, could result in a higher 20% rating and that that coding could be supported by the data in evidence. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board recommends a disability rating of 20% for the back condition coded 5285-5292. The Board concurred with no (or 0%) EPTS deduction.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that T11 compression fracture and hypertension were Category II and III respectively. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The effect of the T11 compression fracture was considered by the Board and incorporated in the rating determination of the back condition above, as inseparable from the back condition. The hypertension condition was reviewed by the action officer and considered by the Board. Hypertension was not specifically profiled or implicated in the commander’s statement, was assessed as well-controlled by medication and was not judged to fail retention standards. There was no performance based evidence from the record that hypertension significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the hypertension condition and the T11 compression fracture was considered with the unfitting back condition rating, and so no additional disability rating is recommended.


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 back pain condition (including the T11 compression fracture), the Board unanimously recommends a disability rating of 20%, coded 5285-5292 IAW VASRD §4.71a. In the matter of the contended hypertension condition, the Board unanimously recommends no change from the PEB determinations as Category III. There were no other conditions within the Board’s scope of review for consideration.


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

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Midback Pain With T11 Compression Fracture
 5285-5292 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120712, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         XX
         Director of Operations
         Physical Disability Board of Review


 MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
 COMMANDER, NAVY PERSONNEL COMMAND
                                          
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 10 Jun 13 ICO X
(c) PDBR ltr dtd 20 Jun 13 ICO X
(d) PDBR ltr dtd 12 Jun 13 ICO X
(e) PDBR ltr dtd 20 Jun 13 ICO X

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

         a. Xformer USN : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 30 April 2002.

         b. Sformer USN : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 3 December 2001.

         c. Xformer USN: Disability retirement with assignment to the Temporary Disability Retired List with a 50 percent disability rating (in accordance with VASRD 4.129) for the period 2 February 2002 through 1 August 2002, with assignment to the Permanent Disability Retired List with a 50 percent disability rating effective 2 August 2002.

         d. Xformer USMC : Disability separation with a final disability rating of 20 percent (increased from ten percent) effective 15 December 2003.
        
3. Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.



                                                      XX
                                                      Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

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