RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  MARINE CORPS 
SEPARATION DATE:  20031115 

 
NAME:  XX 
CASE NUMBER:  PD1200820 
BOARD DATE:  20130206 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty  LCpl/E-3  (6113/CH-53E  Helicopter  Mechanic) 
medically separated for T-10, T-11, T-12 compression fractures with a spinal angulation of 40 
degrees.  The CI sustained fractures of the thoracic spine from an all-terrain vehicle rollover.  
Despite  a  thoracolumbosacral  orthosis  (TLSO)  brace,  4  months  of  physical  therapy,  and  a 
month’s  stay  in  a  rehabilitation  hospital,  medication,  and  orthopedic  and  rehabilitation 
medicine evaluations, the CI was unable to meet the requirements of his Military Occupational 
Specialty  (MOS)  or  physical  fitness  standards.    He  was  consequently  placed  on  an  8  month 
limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The MEB forwarded 
“Right  Clavicular  Fracture,  T10,  T11,  and  T12  Compression  Fracture,  and  with  a  Spine 
Angulation of 40 degrees” to the Physical Evaluation Board (PEB).  No other conditions were 
submitted by the MEB.  The PEB adjudicated “T10, T11 and T12 Compression Fractures with a 
Spinal Angulation of 40 Degrees” as unfitting and rated 20% with application of the Veterans 
Affairs Schedule for Rating Disabilities (VASRD).  The right clavicular fracture was adjudicated as 
Category III (conditions that are not separately unfitting and do not contribute to the unfitting 
condition).  The CI made no appeals and he was discharged with a 20% service disability rating. 
 
 
CI  CONTENTION:    The  application  states:  “Disability  has  worstened  [sic].    Have  to  change 
careers.”    He  does  not elaborate  further or  specify  a  request for  Board  consideration of  any 
additional conditions.  
 
 
SCOPE  OF  REVIEW:    The  Board  wishes  to  clarify  that  the  scope  of  its  review  as  defined  in 
Department of Defense Instruction (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  T-10,  T-11,  and  T-12  compression  fractures  are 
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 
Service Board for Correction of Military Records.   
 
 
RATING COMPARISON:   
 

Service PEB – Dated 20030828 
Condition 
T10,  T11  and  T12  compression 
fractures 
spinal 
angulation of 40 degrees 
Right Clavicular fracture 
Combined:  20% 

with 

a 

Code 

Rating 

VA (~1 Month Pre-Separation) – Effective 20031116 
Condition 

Code 

Rating 

Exam 

5288 

20% 

Thoracic Compression Fractures 

5285-5288 

20% 

20031003 

Category III 

Right Clavicular fracture 
Combined:  20% 

5201 

0% 

20031003 

 
 

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application 
regarding  the  significant  impairment  with  which  his  incurred  condition  continues  to  burden 
him.  It is a fact, however, that the Disability Evaluation System  (DES) has neither the role nor 
the  authority  to  compensate  members  for  anticipated  future  severity  or  potential 
complications of conditions resulting in medical separation.  This role and authority is granted 
by Congress to the Department of Veterans Affairs (DVA).  The Board’s authority as defined in 
DoDI  6040.44,  resides  in  evaluating  the  fairness  of  DES  fitness  determinations  and  rating 
decisions for disability at the time of separation.  The Board utilizes DVA evidence proximal to 
separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval 
for  special  consideration  to  post-separation  evidence.    Post-separation  evidence  is  probative 
only to the extent that it reasonably reflects the disability and fitness implications at the time of 
separation. 
 
T10, T11, and T12 Compression Fractures Condition.  The range-of-motion (ROM) evaluations in 
evidence  which  the  Board  weighed 
its  rating  recommendation,  with 
documentation of additional ratable criteria, are summarized in the chart below. 

in  arriving  at 

 

 
No ROM’s 

PT ~6 Mo. Pre-Sep  MEB Exam ~6 Mo. Pre-Sep 
 
≤ 75% 
 
> 90% 
 
 
 

Thoracolumbar ROM 
 (In degrees) 
Flexion (90 Normal) 
Ext (0-30) 
R Lat Flex (0-30) 
L Lat Flex 0-30) 
R Rotation (0-30) 
L Rotation (0-30) 
Combined (240) 

Comment 

“trunk 
improved; 
especially 
side 
improved” 

ROM 

lateral 
bending 

lumbar 

intact  L4-S1 

Normal  gait;  slight  kyphotic 
deformity  at  T10  non  tender; 
excessive 
lordosis-
normal  for  CI;  strength  5/5; 
;  2+ 
sensory 
reflexes;  no  upper  motor 
neuron 
kyphotic 
deformity  out  of  brace  T9-12 
measures 40 degrees 
20% 

signs; 

VA C&P ~1 Mo. Pre-Sep 
90° (100°) 
10° 
30° 
30° 
30° (35°) 
30° (35°) 
220° 
Tenderness  gluteal  muscles,  some  mild 
tenderness  iliopsoas  insertion;  Appears 
generally  normal  gait  and  posture; 
negative straight leg raise; walks normal 
inside/outside  of 
insteps; 
heels,  toes 
greater  trochanter  one  side 
is  not 
significantly greater that the other; right 
leg, hemipelvis 7mm shorter than left 
10% 

§4.71a Rating 

10% 

 
Magnetic  resonance  imaging  obtained  at  the  time  of  the  original  trauma  revealed  minimal 
superior  end  plate  compression  fractures  at  T10,  11  and  12  without  deformity.    The  CI  was 
issued a TLSO brace during his month long rehabilitation hospitalization and an X-ray performed 
in  October  2002  indicated  a  30  degree  kyphosis  with  brace  applied.    A  thoracic  spine  X-ray 
performed  in  October  2002  showed  a  kyphotic  deformity  from  T10  to  T12  measuring  34 
degrees.  A follow-up X-ray a month later revealed a kyphotic deformity of 30 degrees.  The CI 
was placed on an 8 month LIMDU starting in November 2002 and ending in July 2003 for the 
T10, 11 and 12 compression fractures with limitations of no deployment, no lifting greater than 
20  pounds,  no  PFT,  no  formation,  no  prolonged  standing  greater  than  20  minutes,  no  rifle 
range, no climbing on aircraft, no running, no sit-ups.  At that time he was starting to wean off 
the back brace.  A separation physical recorded on a DD Form 2808 dated 12 June 2003 noted 
an abnormal spine exam with “movement T10-12 (with) kyphosis nontender, FROM (without) 
pain.”  The MEB narrative summary (NARSUM) dictated 6 months prior to separation,  noted 
that  the  CI  continued  to  have  back  pain  in  the  area  of  the  fractures  and  had  difficulty  with 
running, lifting greater than 50 pounds, and fatigue at the end of the day.  He was unable to 
bend over helicopters, climb aboard helicopters, or lie flat on his back as required for his job as 
a  mechanic.    An  X-ray  performed  on  the  date  of  the  MEB  exam  found  that  the  CI’s  spinal 
deformity  out  of  his  brace  measured  40  degrees  from  T9-T12.    The  NARSUM  physical  exam 
findings are summarized in the chart above.  The commander’s statement noted that because 

2                                                           PD1200820 
 

the  CI  was  away  from  his  duties  12  hours  per  week  due  to  his  physical  limitations,  he  was 
unable to perform his MOS.  The VA Compensation and Pension (C&P) examination a month 
prior  to  separation  noted  that  the  CI  had  ongoing  discomfort,  pain  with  lifting,  prolonged 
standing, and walking and pain on waking in the morning.  The C&P physical exam findings are 
summarized in the chart above. 
 
The 2003 VASRD coding and rating standards for the spine were changed to the current §4.71a 
rating standards on 26 September 2003, (approximately 2 months prior to the CI’s separation 
from service).  The earlier 2003 standards for rating based on ROM impairment were subject to 
the rater’s opinion regarding degree of severity, whereas the current standards specify rating 
thresholds in degrees of ROM impairment.  While the current VASRD rating standards were in 
effect at the time the CI separated in November 2003, it appears that both the PEB and the VA 
utilized the previous standards to determine their respective disability ratings as both recorded 
VASRD codes (5288 and 5285) from the earlier document.  
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
PEB  coded  the  T10,  T11,  and  T12  compression  fractures  as  5288  (Spine,  ankylosis  of,  dorsal: 
thoracic  spine)  rated  20%  based  on  favorable  ankylosis.    The  VA  coded  the  thoracic 
compression  fractures  as  5285  (Vertebra,  fracture  of,  residuals)  with  code  5288  (Spine, 
ankylosis of, dorsal: thoracic spine) but also assigned a 20% rating for favorable ankylosis.  The 
VA  stated  that  they  did  not  grant  the  additional  10%  for  a  demonstrable  deformity  of  a 
vertebral  body  because  there  were  no  post-recovery  X-rays  in  the  CI’s  file.    The  NARSUM 
indicated  there  was  a  40  degree  kyphotic  deformity  and  a  normal  gait.    The  C&P  exam 
documented that posture and gait appeared generally normal and the CI had thoracolumbar 
flexion of 100 degrees and extension of 10 degrees on ROM.  The ROM limitations support a 
10% rating.  Neither exam comments specifically on the presence or absence of muscle spasm 
or guarding severe enough to result in an abnormal spinal contour such as kyphosis.  The CI did 
have kyphosis but even if it was granted that this resulted from muscle spasm or guarding, a 
20% rating would be the maximum rating supported.  No allowable coding or rating scheme 
would  result  in  a  rating  greater  than  20%.    After  due  deliberation,  considering  all  of  the 
evidence  and  mindful  of  VASRD  §4.3  (Resolution  of  reasonable  doubt),  the  Board  concluded 
that there was insufficient cause to recommend a change in the PEB adjudication for the T10, 
T11 and T12 compression fractures. 
 
 
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  T10,  T11  and  T12  compression  fractures  with  a  spinal 
angulation  of  40  degrees  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.   
 
 
RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of 
the CI’s disability and separation determination, as follows:   
 

UNFITTING CONDITION 
T10, T11 and T12 Compression Fractures with a Spinal Angulation 
of 40 Degrees 

 

VASRD CODE  RATING 
5288 
RATING 

20% 
20% 

3                                                           PD1200820 
 

The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120607, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
                                                                                  xx 
                                                                                  Acting Director 
                                                                                  Physical Disability Board of Review 
 

 

4                                                           PD1200820 
 

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW  
                                        BOARDS  

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS 

Ref:   (a) DoDI 6040.44 

             (b) CORB ltr dtd 21 Feb 13 
 

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

 
 
 
 

 

 

     
 
 
 
 

-  former USN  
-  former USN  
-  former USMC 
-  former USN   
-  former USMC 
-  former USN  
-  former USN   
-  former USN 
-  former USMC 
-  former USMC 
-  former USMC 
-  former USMC 
 
  

 
      
 

 
 
 

 
 
 

 
 
 

 
 
 

  xxxx 
  Assistant General Counsel 
     (Manpower & Reserve Affairs) 

5                                                           PD1200820