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NAVY | BCNR | CY2006 | 05477-06
Original file (05477-06.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100



 JRE
 Docket No. 05477-06
15 October 2007
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    FORMER
 REVIEW OF NAVAL RECORD
Ref:     (a) 10 U.S.C. 1552
End:     (1) DD Form 149 w/attach m ents
 (2)      SECNAVCORB ltr 5220 CORB:OOS, 6 Sep 07
 (3)      Subjects naval record
1.       Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that his naval record be corrected to show that he was retired by reason of physical disability.
2.       The Board, consisting of Ms. and Messrs a nd Mr. reviewed Petitioner’s allegations of error and injustice on 12 October 2007 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies.
3.       The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice finds as follows:
a.       Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.
b.       Enclosure (1) was filed in a timely manner.
c.       On 19 October 2005, the Physical Evaluation Board (PEB) found Petitioner unfit for duty by reason of left leg radiculopathy, rated at 20% under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5241-5290-5003.


The PEB affirmed those findings on 16 November 2005. Petitioner was discharged from the Marine Corps on 31 January 2006, with entitlement to disability severance pay, in accordance with the approved findings of the PEB. He completed 6 years, 7 months and 25 days of service. On 28 February 2006, the VA awarded Petitioner a combined disability rating of 80%, with individual ratings of 40% for status post spinal fusion with discectomy, L5-Si and intervertebral disc syndrome; and 10% ratings for chondromalacja patella of left knee, bilateral plantar fascitis, bilateral ankle strain, tinnitus, surgical and laceration scars, and radiculopathy of the left lower extremity.
d.       In correspondence attached as enclosure (2) , the Director, Secretary of the Navy Council of Review Boards advised the Board, in effect, that VASRD code 5290, which is one of the codes under which Petitioner’s disability was rated, has been defunct and no longer authorized since 26 September 2003. In addition, that code pertained to the cervical(rather than the lumbar) spine. Use of any code as a residual of the spinal fusion code (5241) without explanation is suspect since the condition is to be rated basec4on objective range of motion (RON) limitation. The method used by the medical board and the VA examiner to record spinal ROM is of more substantive import, as it appears that the drastic restriction of forward flexion recorded in both evaluations represents lumbar ROM and does not include what is likely a fairly normal thoracic component (unless obstructed by undisclosed pathology). The applicable VASRD code, which is designated “Thoracolumbar RON”, requires consideration of both the lumbar and thoracic components of the RON. The drastic ROM limitation found by the medical board and VA examiner in this case is not explained by other objective observations/evidence; however, it appears that the RON would have supported a 20% rating. The Director concluded that although the PEB rating determination contained some coding errors, its rating conclusion was correct, and the available evidence appears insufficient to warrant the requested rating increase.
e.       Rating guidance for conditions rated under VASRD codes 5235 through 5243 provides, in part, for a 20% rating in those cases where forward flexion of the thoracolumbar spine is limited more than 30 but less than 60 degrees. A 40% rating will be assigned where forward flexion is limited to no more thant 30 degrees.
CONCLUSION:
Upon review and consideration of all the evidence of record and notwithstanding the comments contained in enclosure (2), the

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Board concludes that Petitioner should have been transferred to the Temporary Disability Retired List on 1 February 2006, rather than discharged on 31 January 2006 with entitlement to disability severance pay. In this regard, the Board notes that the limitation of forward flexion as measured by officials of the Navy and VA support that rating. In addition, the Board is unwilling to speculate that those measurements do not reflect the objective limitation of forward flexion of Petitioner’s thoracolumbar spine. Accordingly, it finds that it would be in the interest of justice to place Petitioner’s name on the TDRL.

RECOMMENDATION:

a.       That Petitioner’s naval record be corrected to show that he was not discharged on from the Marine Corps on 31 January 2006.

b.       That Petitioner’s naval record be further corrected to show that he was released from active duty on 31 January 2006, and transferred to the Temporary Disability Retired List the following day, pursuant to 10 U.S. Code 1202, with a disability rating of 40% under VASRD code 5241.

c.       That Petitioner be afforded a periodic physical examination as soon as practicable. Current address:


d.       That a copy of this Report of Proceedings be filed in Petitioner’s naval record.

4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.


 ROBERT D. ZSALMAN        JAMES R. EXNICIOS
Recorder         Acting Recorder


5.       The foregoing report of the Board is submitted for your
 review and action.

                                                      W. DEAN PFEIFFER
                           Executive Director


 Reviewed and approved:  
ROBERT T. CALI
Assistant General Counsel
(Manpower and Reserve Affairs)

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