RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 
NAME:  XXXXXXXXXXXXXXX                                                                        BRANCH OF SERVICE:  ARMY  
CASE NUMBER:  PD1101058 
SEPARATION DATE:  20070912 
BOARD DATE:  20121011  
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  a  National  Guard  SSG/E-6  (21H/Construction  Engineer),  medically 
separated for chronic low back pain (LBP) post anterior decompression and fusion L5/S1.  The CI 
was injured when a co-worker lost their grip on tools being loaded into a truck and the tools fell 
on the CI injuring both his back and left shoulder.  The CI underwent a back surgery and two left 
shoulder  surgeries  as  a  result  of  this  injury.    Despite  back  surgery  and  extensive  physical 
therapy (PT) and medications, the CI could not meet the physical requirements of his Military 
Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent 
U2/L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “chronic 
LBP” and “status post L5-S1 surgery” conditions on the DA Form 3947 to the Informal Physical 
Evaluation  Board  (IPEB)  as  medically  unacceptable  IAW  AR  40-501.    Three  other  conditions, 
identified in the rating chart below, were also identified and forwarded by the MEB.  The IPEB 
adjudicated  the  “chronic  LBP  post  anterior  decompression  and  fusion  L5/S1”  condition  as 
unfitting, rated 0%, with likely application of AR 635-40, B-29.  The remaining conditions were 
determined to be not unfitting.  The CI filed an appeal to the Formal PEB (FPEB) which upheld 
the IPEB decision.  The CI then filed a statement of rebuttal with the FPEB.  The FPEB reviewed 
the  case  and  forwarded  the  entire  case  file  to  the  U.S.  Army  Physical  Disability  Agency 
(USAPDA).    The  USAPDA  affirmed  the  FPEB  findings  and  indicated  the  CI’s  contended 
radiculopathy  was  not  ratable.    The  CI  elected  transfer  to  the  Retired  Reserve  List  in  lieu  of 
discharge with severance pay at a 0% disability rating.   
 
 
CI  CONTENTION:    “The  reasons  this  rating  should  be  changed  are:    1.  I  was  permanently 
disabled and unable to return to my civilian job in the same capacity.  2.  My military doctors at 
the time (from West Point Keller) thought my 0% rating was outrageous and encouraged be to 
appeal  it  which  I  did.    3.    The  MEB  did  not  consider  other  conditions  relevant to  my  overall 
disability.  4.  MEB told me, during my hearing that if I lose some weight my back might feel 
better without realizing it was the injury to my back that cause me to gain weight.  I found this 
comment  degrading  and  insulting.    5.    After  getting  out  of  the  military  I  filed  for  disability 
through the VA and is [sic] now 90% disabled this is a significant rating increase from the 0% the 
MEB issued.  6.  Due to my service connected disabilities I now have other conditions that are 
disabling.  7.  On my appeal to the MEB I submitted new medical evidence showing that I had 
right leg neuropathy associated with my service connected degenerative disc disease and that 
was over looked.  8.  I had extensive medical documentation of my sleeping disorder while on 
active duty and how it affected my social, mental, and occupational health yet the MED would 
not consider this.  VA immediately identified my sleep disorder as sleep apnea and scheduled 
me for a sleep study.  I was diagnosed with acute sleep apnea 3 months after leaving service 
and later filed a claim.  VA granted me 50% for acute sleep apnea.  9.  Even with documentation 
from my commander saying that I was unfit to stay in the service due to the injury to my left 
shoulder the MEB still did not accept this as a career ending disability.”   
 
 

SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in the 
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 ratings for unfitting conditions will be reviewed in 
all cases.  The right leg neuropathy, left shoulder, sleep apnea and umbilical hernia conditions 
requested  for  consideration  and  the  unfitting  back  condition  meet  the  criteria  prescribed  in 
DoDI  6040.44  for  Board  purview,  and  are  accordingly  addressed  below.    Any  condition  or 
contention not requested in this application, or otherwise outside the Board’s defined scope of 
review, remain eligible for future consideration by the Army Board for Correction of Military 
Records.   
 
 
RATING COMPARISON:   
 

Service FPEB – Dated 20070628 
Code 

Condition 

Rating 

Chronic LBP Post Anterior 
Decompression and Fusion L5/S1… 

5241 

0% 

Sleep Disorder 
Arthroscopia Left Shoulder Rotor 
Cuff and Labral Repair 
Umbilical Hernia Repair 

Not Unfitting 

Not Unfitting 

Not Unfitting 

↓No Additional MEB/PEB Entries↓ 

VA (6 Mo. After Separation) – All Effective Date 20070913 

Condition 

Degenerative Disc Disease 
(DDD) Lumbar Spine with 
Chronic LBP 
Right Leg Neuropathy a/w 
DDD Lumbar Spine …  
Sleep Apnea 

Left Rotator Cuff Tear 
Umbilical Hernia with 
Recurrence 
Adjustment Disorder with 
Anxiety and Depression 

Code 

5237 

8521 

6847 

5299-5201 

7399-7339 

9440-9434 

0% x 2 

Rating 

Exam 

30%* 

20080325 

20% 
**not 
noted 
20% 

20% 

30% 

20080325 

20110309 

20080325 

20080325 

20080518 

20080325 

Combined:  0% 

Combined:  *80% 

* DDD, 5237 rated 30% effective 20070913 based on 20% for ROM and 10% for “spasm, fatigue, decreased motion, stiffness, 
weakness pain additional pain following repetitive motion.”  **Per VARD dated 20110719, sleep apnea (6847) added and rated 
50% effective 20101116 [exam 20110309] (combined 90%).   
 
 
ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit 
and  vital  fighting  force.    While  the  DES  considers  all  of  the  member's  medical  conditions, 
compensation  can  only  be  offered  for  those  medical  conditions  that  cut  short  a  member’s 
career,  and  then  only  to  the  degree  of  severity  present  at  the  time  of  final  disposition.  
However  the  Department  of  Veterans’  Affairs  (DVA),  operating  under  a  different  set  of  laws 
(Title 38, United States Code), is empowered to compensate service-connected conditions and 
to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability 
rating  should  his  degree  of  impairment  vary  over  time.    The  Board  notes  the  current  DVA 
ratings listed by the CI for all of his service-connected conditions, but must emphasize that its 
recommendations are premised on severity at the time of separation.  The DVA ratings which it 
considers  in  that  regard  are  those  rendered  most  proximate  to  separation.    The  Board  is 
empowered to evaluate the fairness of fitness determinations, and to make recommendations 
for ratings of conditions which it concludes would have prevented the performance of required 
duties  (at  the  time  of  separation).    The  Board’s  threshold  for  countering  DES  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.   
 
Lower Back condition (Chronic LBP Post Anterior Decompression and Fusion L5/S1 with Right 
Leg  Neuropathy).    There  were  four  exams,  one  with  range-of-motion  (ROM)  evaluation,  in 
evidence,  with  documentation  of  additional  ratable  criteria,  which  the  Board  weighed  in 
arriving at its rating recommendation; as summarized in the chart below.   
 

Thoracolumbar ROM  MEB ~12 Mo. Pre-Sep 
Flexion (90⁰ Normal) 

No ROM’s 

PT ~11 Mo. Pre Sep  MEB ~6 Mo. Pre-Sep 

VA C&P ~6 Mo. Post-Sep 

40⁰ (38⁰ pain begins) 

Ext (0-30) 

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

 
 
 
 
 
 

35⁰ 
30⁰ 
20⁰ 
20⁰ 
30⁰ 
30⁰ 
165⁰ 

Comments: 

Reflexes 2+ 

symmetrical; muscle 
tone nml; strength 5/5 

 

No ROM’s 

Normal gait; right 
gastroc soleus 4/5 
strength; reflexes 
nml; muscle tone 

nml;- SLR 

30⁰ 
30⁰ 
30⁰ 
30⁰ 
30⁰ 
190⁰ 

Normal gait; pain with 
ROM; pain following 
repetitive motion; 
lumbar flattening; 

tenderness; Right ankle 

dorsiflexion/plantar 
flexion 4/5; Right great 
toe 4/5; sensation intact 

20% (VA 30%) 

20% 

§4.71a Rating 
§4.124a Rating 

See text 

- 

20% 

- 

See text 

10% (PEB fit) 

lower  extremity  radiculopathy. 

 
The CI had a well documented history of back pain in the service treatment record (STR).  A 
magnetic  resonance  imaging  (MRI)  performed  in  June  2005  indicated  an  L5-S1  degenerative 
disc disease (DDD) affecting the right L5 nerve root.  The CI’s pain continued and he underwent 
a discogram performed in January2006 which demonstrated L5-S1 excruciating concordant pain 
with 
  In  March  2006,  the  CI  underwent  an  anterior 
decompression  laminectomy.    The  CI  continued  with  PT  and  follow-up  with  Orthopedics, 
however, the pain was unresolved.  An Orthopedic note in July 2006 noted an increase in low 
back  pain,  difficulty  with  sleep  and  decreased  ROM  in  all  planes  with  pain  without 
radiculopathy.    The  initial  MEB  examination,  12-months  prior  to  separation,  noted  adequate 
pain  relief  with  a  moderate  degree  of  pain  which  was  increased  with  power  walking  and 
running.  The second MEB examination,  6 months prior to separation documented increased 
pain  and  disability  with  power  walking,  running,  prolonged  standing  and  prolonged  sitting, 
however,  most  pain  was  relieved  with  rest  and  no  pain  medication  was  needed.    The  exam 
documented mild right lower leg weakness.  The examiner recommended wearing soft athletic 
shoes as needed for relief of the LBP along with a restriction in sitting or standing for greater 
than  thirty  minutes.    An  electromyogram  (EMG)  performed  in  July  2007,  2  months  prior  to 
separation, demonstrated moderate right lower extremity radiculopathy.  Neither MEB exam 
documented ROMs.  A comprehensive functional evaluation was performed proximate to the 
MEB exam.  This exam documented truncal weakness and decreased “true Lumbar flexion” on 
repetition of 24, 18, and 26 from a normal of 60 (AMA 5th edition standards valid and at 38% of 
normal).   
 
The  VA  Compensation  &  Pension  (C&P)  examination  performed  6  months  after  separation 
noted complaints of constant sharp stabbing low back pain radiating into the right buttock and 
right leg weakness worse in the AM on rising from bed, with standing, walking and sitting for 

prolonged periods.  There was no documentation of foot drop, antalgic gait on exam.  There 
was right lower extremity weakness.  All exams are summarized above.   
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
PEB coded the chronic LBP post anterior decompression and fusion L5S1 as 5241 (Spinal fusion) 
rated 0%, stating “Range of motion is decreased with pain being the limiting factor.”  The VA 
coded  the  lower  back  pain  as  5237  (Lumbosacral  strain)  rated  30%  with  20%  for  “forward 
flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees 
…with  an  additional  10%  because  of  decreased  motion,  spasm,  stiffness,  weakness  pain  and 
additional pain following repetitive motion.”   
 
The Board considered that the C&P exam was the single exam detailing ROM measurements of 
the  thoracolumbar  spine  and  addressing  repetitive  motion.    The  VA  exam  was  adjudged  the 
highest  probative  value  exam.    Independent  rating  of  that  exam  would  be  20%.    After  due 
deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the 
Board recommends a disability rating of 20% for the chronic LBP post anterior decompression 
and fusion L5/S1 condition. 
 
Board  precedent  is  that  a  functional  impairment  tied  to  fitness  is  required  to  support  a 
recommendation  for  addition  of  a  peripheral  nerve  rating  at  separation.    The  USAPDA 
specifically addressed the radiculopathy (abnormal EMG and 4/5 motor strength) as being non-
ratable  in  their  response  to  the  CI’s  rebuttal.    The  pain  component  of  a  radiculopathy  is 
subsumed under the general spine rating as specified in §4.71a.  The motor impairment was 
relatively  minor  and  cannot  be  linked  to  significant  physical  impairment.    Since  insufficient 
evidence  of  functional 
in  this  case,  the  Board  cannot  support  a 
recommendation  for  additional  rating  based  on  peripheral  nerve  impairment.    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 USAPDA fitness determination for 
the radiculopathy condition.   
 
Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the Army 
were  right  leg  neuropathy;  sleep  disorder;  arthroscopia  left  shoulder  rotor  cuff  and  labral 
repair; and umbilical hernia repair with mesh.  The Board’s first charge with respect to these 
conditions  is  an  assessment  of  the  appropriateness  of  the  PEB’s  fitness  adjudications.    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.   
 
Right Leg Neuropathy condition.  The right leg neuropathy condition was discussed above with 
the chronic LBP condition.   
 
Sleep Apnea condition.  The sleep apnea condition was not profiled; this was not implicated in 
the commander’s statement; nor was this condition judged to fail retention standards.  Sleep 
apnea  was  reviewed  by  the  action  officer  and  considered  by  the  Board.    There  was  no 
indication  from  the  record  that  the  sleep  apnea  condition  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  contended  sleep  apnea  condition;  and,  therefore,  no 
additional disability rating can be recommended.   
 

impairment  exists 

Left Shoulder condition.  The PEB diagnosis was arthroscopia left shoulder rotor cuff and labral 
repair.    The  CI  was  right-handed.    There  were  three  ROM  evaluations  in  evidence  and  two 
without ROM’s, with documentation of additional ratable criteria, which the Board weighed in 
arriving at its fitness and rating recommendation; as summarized in the text and chart below.   
 

 

PT ~11 Mo. Pre Sep  MEB ~6 Mo. Pre-Sep 

ROM limited in 

forward flexion and 
abduction secondary 

to pain 

VA C&P ~6 Mo. Post-Sep 

155⁰ 

130⁰ 

+ impingement sign; 
muscle testing 5/5; 

(see text)  

Tenderness; pain with active 

motion (abduction-pain 
begins at 127⁰); pain with 

repetitive motion 

10%-20% (PEB fit) 

10%-20% (VA 20%) 

 

Left Shoulder ROM  MEB~12 Mo. Pre-Sep 
Flexion (0-180⁰) 

Abduction (0-180⁰) 

No ROM’s 

Comments:   
Right hand 
dominant 

§4.71a Rating 

+ impingement sign; 
muscle testing 5/5’ 
“unable to move 
with a fighting load 
carry and fire his 

weapon” 
10%-20% 

125⁰ 

130⁰ 

 

10% 

 
The CI had numerous Orthopedic and PT notes in the STR.  During the CI’s injury he dislocated 
his left shoulder and was evaluated in-theater.  An MRI revealed a SLAP (superior labrum from 
anterior to posterior) tear.  The CI was diagnosed with a left rotator cuff tear and underwent an 
arthroscopic repair.  The CI continued with left shoulder persistent pain and limited ROM.  The 
CI was given a permanent U2 prolife for left shoulder pain in March 2005 with restrictions of no 
pushups.  Despite medications and aggressive PT a second left shoulder surgery was performed 
to repair the labrum in March 2006.  The initial MEB exam indicated a positive impingement 
test and an inability to carry and fire his assigned weapon and move with a fighting load.  The 
commander’s statement in December 2006 documented that the CI had an inability to move 
with a fighting load at least two miles, an inability to construct an individual fighting position 
and  could  not  perform  an  Army  Physical  Fitness  Test  (APFT)  test.    The  second  MEB  exam  6 
months prior to separation indicated a positive impingement test and pain limited motion in 
forward  flexion  and  abduction.    A  comprehensive  functional  evaluation  was  performed 
proximate to the MEB exam.  The left shoulder ROM was limited, but greater than 90 degrees 
(83% of normal) and demonstrated slight weakness of the left arm and grip.   
 
The VA C&P exam noted progressive symptom worsening of left shoulder stiffness, with limited 
ROM, weakness and pain as summarized above.  The examiner assessed functional limitations 
of decreased manual dexterity, inability to lift, carry and reach.   
 
The Board directs attention to its recommendations based on the above evidence.  The CI had 
two surgeries for left shoulder injury without pain resolution.  Both MEB’s listed shoulder and 
back  pain  as  the  principle  reason  for  the  disability  determinations.    Both  examinations 
documented a positive impingement sign, an inability to move with a fighting load and carry 
and fire a weapon.  The CI was granted a permanent U2 profile for left shoulder pain, although 
there were specific limitations from the shoulder that prevented carrying a weapon or ruck that 
were  attributed  to  the  shoulder  condition.    The  Board  discussed  the  requirements  and 
functional  capacity  of  the  CI  for  his  specific  MOS  of  21H/Construction  Engineer,  and  closely 
considered  the  commander’s  statement.    After  due  deliberation,  the  Board  majority  agreed 
that the preponderance of the evidence with regard to the functional impairment of the left 
shoulder  condition  favors  its  recommendation  as  an  additionally  unfitting  condition  for 
disability rating.  It is appropriately coded 5299-5024 and meets the VASRD §4.71a. criteria for a 
10% rating.   
 
Umbilical  Hernia  Repair  Condition.    Umbilical  hernia  repair  was  mentioned  in  the  narrative 
statement  (NARSUM)  under  medical  history.    The  profile  and  commander’s  statement  both 
noted  the  hernia  condition.    Exams  did  not  focus  on  the  abdominal  condition  aside  from 
mentioning  well  healed  surgical  scars.    The  duty  limitations  from  the  unfitting  low  back 

condition may have overlapped impairment from the hernia condition, which would be unduly 
speculative.  Treatment notes indicated good healing of recurrent hernia repair with mesh from 
January 2007 surgery.  VA exam indicated recurrent hernia.  At the time of separation, there 
was  insufficient  indication  from  the  record  that  the  hernia  repair  condition  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 contended hernia condition; and, 
therefore, no additional disability rating can be 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.  As discussed above, PEB 
reliance  on  AR  635-40  for  rating  the  lower  back  condition  was  operant  in  this  case  and  the 
condition  was  adjudicated  independently  of  that  policy  by  the  Board.    In  the  matter  of  the 
chronic LBP post anterior decompression and fusion L5/S1 condition, the Board unanimously 
recommends a disability rating of 20%, coded 5024 IAW VASRD §4.71a.  In the matter of the 
contended arthroscopia left shoulder rotor cuff and labral repair condition, the Board by a vote 
of 2:1 agrees that it was unfitting and recommends a disability rating of 10%, coded 5299-5024 
IAW  VASRD  §4.71a.    The  single  voter  for  dissent,  who  recommended  adopting  the  PEB 
adjudication  as  not  unfitting  (not  rated),  submitted  the  appended  minority  opinion.    In  the 
matter of the contended sleep apnea, right leg neuropathy and hernia repair conditions, the 
Board unanimously recommends no change from the determinations as not unfitting.  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;  and,  that the discharge  with  severance pay  be  recharacterized to  reflect  permanent 
disability retirement, effective as of the date of his prior medical separation:   
 

UNFITTING CONDITION 

Chronic Low Back Pain Post Anterior Decompression and Fusion 
L5/S1 
Arthroscopia Left Shoulder Rotor Cuff and Labral Repair 

VASRD CODE  RATING 
20%  

5241 

5299-5024 
COMBINED 

10% 
30% 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20111001, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 

           XXXXXXXXXXXXXXXXXXXX 
           President 
           Physical Disability Board of Review 

 

 

MINORITY OPINION:   I feel that the shoulder condition was not based off of the preponderance 
of evidence and that the commander’s letter made no mention of the injury.  I also feel that the 
examinations  were  inconclusive  to  the  injury  and  did  not  show  that  the  injury  in  itself  was 
unfitting.  There was also no mention to pain with motion or limited ROM that would warrant 
an unfitting rating or compensable rating.  I feel that the appropriate rating would be chronic 
low  back  pain  post  anterior  decompression  and  fusion  L5/S1,  5241,  20%  and  the  shoulder 
remains as not unfitting.   
 
 

 

 
 

 
 
 

 
 
 

 
 
 

 
 
 

 
 

 
 
 

SFMR-RB 
 
 
 
 
MEMORANDUM FOR Commander, US Army Physical Disability Agency  
(TAPD-ZB /  ), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557 
 
SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXXXXX, AR20120020001 (PD201101058) 
 
 
1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review 
(DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  
Under the authority of Title 10, United States Code, section 1554a,  
I reject the Board’s recommendation and accept the Board’s minority opinion which agrees 
with the majority that 0% for chronic low back pain should be increased to 20%.  However, the 
majority recommendation to add an unfitting condition is not adequately supported by the 
available record and is rejected.  The permanent profile for the upper extremity is U2 (as 
opposed to U3) and the shoulder was not determined by the Medical Evaluation Board (MEB) 
to fall below retention standards.  The commander’s letter quoted the limitations of the profile 
but provided no independent documentation that the individual’s shoulder condition 
prevented him from performing the duties of his Military Occupational Specialty (MOS).  The 
Physical Evaluation Board’s (PEB) determination, in effect, that the Army was able and willing to 
accommodate the profile’s physical restrictions related to the shoulder is not adequately 
refuted by the Physical Disability Board of Review.  The change in rating does not result in a 
medical retirement. 
 
2.  This decision is final.  The individual concerned, counsel (if any), and any Members of 
Congress who have shown interest in this application have been notified of this decision by 
mail. 
 
BY ORDER OF THE SECRETARY OF THE ARMY: 
 
 
 
 
Encl 
 
 
CF:  
(  ) DoD PDBR 
(  ) DVA 
 

     XXXXXXXXXXXXXXXXXX 
     Deputy Assistant Secretary 
         (Army Review Boards)