RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  MARINE CORPS 
SEPARATION DATE:  20040315 

 
NAME:    
CASE NUMBER:  PD1200273                                                       
BOARD DATE:  20121127 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty  SGT/E-5  (0311/Rifleman),  medically  separated  for 
thoracic back pain secondary to a T6 compression fracture (FX).  The CI injured his back when 
the Amtrak vehicle that he was riding in was rear ended by a second vehicle, the passengers 
were  thrown  about  and  the  CI  sustained  a  T6  compression  Fx.    Despite  a  hospitalization, 
physical therapy (PT), and non steroidal anti inflammatory drugs (NSAIDS) the CI failed to meet 
the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness 
standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board 
(MEB).  The MEB forwarded recalcitrant thoracic back pain secondary to T6 compression Fx. on 
NAVMED  6100/1  to  the  Physical  Evaluation  Board  (PEB).    The  MEB  forwarded  no  other 
conditions  for  PEB  adjudication.    The  PEB  adjudicated  the  recalcitrant  thoracic  back  pain 
secondary to T6 compression Fx. condition as unfitting, rated 0%.  The CI made no appeals, and 
was medically separated with a 0% disability rating.   
 
 
CI CONTENTION:  “0% seems to be a unrealistic rating for a back injury that caused me to be 
found  unfit  for  duty  and  has  limited  and  changed  my  way  of  life  premantley.    My  injury  is 
constant  and  limits  me  daily.    In  addition  to  the  0%  rating  for  my  back  injury,  I  was  never 
screened for PTSD or Tinnitus which I have been diagnosed with and rated for through the VA.”   
 
 
SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in DoDI 
6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined 
by the PEB to be specifically unfitting for continued military service; or, when requested by the 
CI, those condition(s) “identified but not determined to be unfitting by the PEB.”  The unfitting 
recalcitrant  thoracic  back  pain  secondary  to  T6  compression  Fx.  condition  meets  the  criteria 
prescribed in DoDI 6040.44 for Board purview and is accordingly addressed below.  The other 
requested conditions [PTSD and Tinnitus] are not within the Board’s purview.  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 20040120 
Condition 

Code 

Rating 

VA (1 Mos. Pre-Separation) – All Effective Date 20040316 

Condition 

Code 

Rating 

Exam 

Recalcitrant Thoracic Back 
Pain Secondary to T6 
Compression Fx. 

5299-5291 

0% 

Residuals, T spine compression 
fx at T6 

5235 

20% 

20040205 

↓No Additional MEB/PEB Entries↓ 

Combined:  0% 

0% X 0 / Not Service-Connected x 1 

Combined:  20%* 

 

* PSTD (9411 @50%) and Tinnitus (6260 @10%) added effective 20090407 (combined 60%)  
 
 
ANALYSIS  SUMMARY:    The  2004  Veterans  Administration  Schedule  for  Rating  Disabilities 
(VASRD) coding and rating standards for the spine, were in effect at the time of the PEB, and at 

the  time  of  separation.    The  PEB  coding  (use  of  5299-5291,  Spine,  limitation  of  motion  of, 
dorsal) indicated use of the prior 2003 VASRD, before the change to the current §4.71a rating 
standards  effective  26  September  2003.    The  2003  standards  for  rating  based  on  range-of-
motion (ROM) impairment were subject to the rater’s opinion regarding degree of severity, and 
had three versus two ratable spine segments.  The VASRD in effect at the time of separation 
(2004) uses the current General Rating Formula for Diseases and Injuries of the Spine and does 
not have a 5291 disability code.  The 2004 VASRD will be used in rating this case.   

 Recalcitrant Thoracic Back Pain Secondary to T6 Compression Fx. Condition:  The goniometric 

in  arriving  at 

in  evidence  which  the  Board  weighed 

ROM  evaluations 
its  rating 
recommendation,  with  documentation  of  additional  ratable  criteria,  are  summarized  in  the 
chart below.   
 

MEB ~6 Mo. Pre-Sep 

VA C&P ~1 Mo. Pre-Sep 
90⁰ /Pain occurred at 60⁰ 

Thoracolumbar ROM 
Flexion (90⁰ Normal) 

Ext (0-30) 

R Lat Flex (0-30) 
L Lat Flex 0-30) 
R Rotation (0-30) 
L Rotation (0-30) 
Combined (240⁰) 

Comment:  Spine Note 
(2) and plate V limit to 

VA normal ROM 

§4.71a Rating 

“no limited ROM there” 

0⁰ 
30⁰ 
30⁰ 

210⁰ 

30⁰ (45⁰) /Pain occurred at 35⁰ 
30⁰ (45⁰) /Pain occurred at 35⁰ 

Slight tenderness to palpation 
(TTP); no muscle spasms; no 

step off; “unsteady gait”; 

“approximately 3⁰ kyphosis” 
“approximately 27% loss of 
height”; reflexes, motor and 

sensory exams normal (see text) 

10%-20% (PEB 0%) 

Muscle spasms present T4-T8; TTP between 

T4-T8; painful ROM; ROM additionally 

limited by pain (see text); Radiating pain on 
movement in a band around chest; negative 

straight leg raising; no signs of 

intervertebral disc syndrome; motor, 
sensory, reflexes intact; gait normal 

10%-20% (VA 20%) 

 
Injury was 11 months. prior to separation and magnetic resonance imaging (MRI) demonstrated 
a sub acute partial compression fracture of T6 with loss of height as noted above.  The MEB 
examination,  6  months  prior  to  separation,  indicated  pain  with  strenuous  walking  and 
prolonged  activity;  however  the  overall  pain  showed  improvement  as  well  as  mobility  along 
with no deficits in strength with upper or lower extremities.  The MEB physical exam findings 
are  summarized  in  the  chart  above,  and  the  examiner  indicated  a  restriction  from  areas  “… 
where an unsteady gait may pose a danger to himself or others.”  The separation physical, DD 
Form  2808,  indicated  tenderness  to  palpation  and  decreased  ROM  secondary  to  discomfort.  
There were no periods of incapacitation documented following initial hospitalization.   
 
The  VA  Compensation  &  Pension  (C&P)  examination  performed  a  month  prior  to  separation 
noted  that  the  CI  had  aching  sharp  cramping  back  pain  exacerbated  by  physical  activity  and 
relieved  by  rest  and  medication.    The  examiner  documented  that  the  functional  impairment 
was pain and stiffness in the lower back that inhibited the CI’s ability to function in a normal 
manner.  The C&P physical examination findings are summarized in the chart above.  A CT scan 
of the thoracic spine demonstrated a normal thoracic spine.   
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
old spine rules were in effect at the time of the MEB.  The PEB used the old spine rules to rate 
the thoracic spine condition  at 0% under 5291 criteria.  The VA used the new spine rules to 
code the back condition 5235 (Vertebral fracture or dislocation).  The MEB exam would rate 
between  10%  to  20%  based  on  if  the  abnormal  spinal  contour  and/or  abnormal  gait  were 
attributed  to  guarding.    The  Board  considered  that  there  was  no  muscle  spasm  at  the  MEB 
exam  which  demonstrated  abnormal  spine  contour  and  abnormal  gait,  and  although  the  VA 
exam documented muscle spasm, there was no concurrent abnormal spinal contour or gait at 
that exam.  Under the new spine rules, the General Rating Formula for Diseases and Injuries of 

   2                                                           PD1200273 
 

the spine considers the CI’s pain symptoms “With or without symptoms such as pain (whether 
or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or 
disease.”    The  VA  exam  is  independently  rated  at  10%  for  pain-limited  ROM  and  for  muscle 
spasm,  guarding,  or  localized  tenderness  not  resulting  in  abnormal  gait  or  abnormal  spinal 
contour.    However,  the  Board  deliberated  if  the  VA  rating  consideration  for  either using the 
“degree that pain occurs” as the ROM limitation, the radiating chest pain on movement, and/or 
the abnormal contour from the MEB exam constituted consideration of DeLuca, or sufficient 
justification to adjudge that the CI’s condition more closely approximated the disability picture 
envisioned  by  the  20%  criteria.    After  due  deliberation,  considering  all  of  the  evidence  and 
mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separation rating of 10% 
for the recalcitrant thoracic back pain secondary to T6 compression Fx. and coded 5235.   
 
 
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 the 2003 VASRD for rating the thoracic back condition was operant in this cases and 
the condition was adjudicated IAW the 2004 VASRD in effect at the time of separation by the 
Board.    In  the  matter  of  the  recalcitrant  thoracic  back  pain  secondary  to  T6  compression  Fx 
condition,  the  Board  unanimously  recommends  a  disability  rating  of  10%  ,  coded  5235  IAW 
VASRD  §4.71a.    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, as follows:   
 

UNFITTING CONDITION 

VASRD CODE  RATING 

Recalcitrant Thoracic Back Pain Secondary to T6 Compression Fx 

5235 

COMBINED 

10% 
10% 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120303, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 

 

  
           President 
           Physical Disability Board of Review 

   3                                                           PD1200273 
 

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 17 Dec 12  
          (c) PDBR ltr dtd 5 Dec 12  
          (d) PDBR ltr dtd 11 Dec 12  
          (e) PDBR ltr dtd 26 Nov 12  
          (f) PDBR ltr dtd 20 Nov 12  
                               
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of 
Review set forth in references (b) through (f). 
 
2.    The  official  records  of  the  following  individuals  are  to  be  corrected  to  reflect  the  stated 
disposition: 
 
     a.    former USMC:  Disability separation with a final disability rating of 20 percent (increased 
from 10 percent) with entitlement to disability severance pay. 
 
     b.    former USMC:  Disability separation with a final disability rating of 10 percent (increased 
from zero percent) with entitlement to disability severance pay.  
 
     c.    former USN:  Disability separation with a final disability rating of 20 percent (increased 
from 10 percent) with entitlement to disability severance pay. 
 
     d.  former USN:  Disability separation with a final disability rating of 20 percent (increased 
from 10 percent) with entitlement to disability severance pay. 
 
     e.  former USMC:  Disability separation with a final disability rating of 20 percent (increased 
from 10 percent) with entitlement to disability severance pay. 
 
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. 
 
 
 
 
 
 
 
 

 
Assistant General Counsel 
Manpower & Reserve Affairs) 

 

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