RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY 

CASE NUMBER: PD1200169 SEPARATION DATE: 20070402 

BOARD DATE: 20130222 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty SSG/E-6 (113BO/Infantryman), medically separated 
for chronic back pain. The CI injured his back while deployed in 2004 and subsequently 
underwent back surgery in April 2005. The chronic low back pain (LBP) condition could not be 
adequately rehabilitated to meet the physical requirements of his Military Occupational 
Specialty or satisfy physical fitness standards. He was issued a permanent L3 profile and 
referred for a Medical Evaluation Board (MEB). The MEB forwarded no other conditions for 
Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the chronic back pain 
condition as unfitting, rated 10%, with possible application of the US Army Physical Disability 
Agency (USAPDA) pain policy. The CI made no appeals, and was medically separated with a 
10% disability rating. 

 

 

CI CONTENTION: “I currently suffer from back pain, nerve damage in my right leg, PTSD, and I 
have been on pain medication since being wounded. The level of pain affects all that I do, from 
my job to sleeping in my bed. I feel those who evaluated my medical records treated me 
unfairly and did not take into account my ongoing pain and the long term affects for the quality 
of life. While on patrol on December 14, 2004 in Bayji, Iraq I commanded a Bradley Fighting 
Vehicle. My vehicle was struck by a Vehicle Born Improvised Explosive Device from the front. l 
was standing in the Bradley Commanders position and was knocked out immediately and 
thrown backwards. I suffered a concussion, smoke inhalation, shrapnel wounds, back injury, 
and permanent nerve damage in my right leg. While in the hospital in Tikrit I was treated for 
my wounds. I had shrapnel removed from my right hand, and my face. I was treated for smoke 
inhalation, received physical therapy for my back, and was seen by a psychiatrist for two weeks. 
I still continue to suffer from back pain, pain in my right leg, pain from the shrapnel in my hand, 
and from mental issues connected with the attack. I was prescribed pain medication and 
zoloph [sic] to help with the deployment. I returned to Germany in February 2005, and had 
back surgery to remove dead tissue from my back that caused pain. Even with the surgery I still 
have back pain and pain in my right leg. I continued physical therapy after returning state side 
and remained on pain pilIs for a 6 month period with no improvement to my condition. I was 
no longer able to perform as an 11B (Infantryman). I was sent to the Army Medical Board 
where my career as a Soldier would be difficult and I could possibly cause more damage. After 
completing the medical evaluation, I received 10% and severance pay. I disagreed with the 
rating and was told by my counselor that if I appealed I could risk not receiving any 
compensation from the Army, and that the V A would make up the difference. I came to the 
conclusion that I would not risk receiving any compensation and took the advice of my 
counselor. After the medical chapter I was seen by the V A and was awarded 50% disability.” 
sic 

 

 

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 ratings 
for unfitting conditions will be reviewed in all cases. The remaining conditions rated by the VA 
at separation and contended by the CI on the DD Form 294 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 Army Board for 
Corrections of Military Records. 

 

 

RATING COMPARISON: 

 

Service IPEB – Dated 20070223 

VA (2 Mos. Post Separation) – All Effective Date 20070403 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Chronic Back Pain 

5243 

10% 

Lumbosacral Traumatic DDD 

5010-5242 

10% 

20070530 

.No Additional MEB/PEB Entries. 

Right Lower Extremity 
Radiculopathy….DDD 

8599-8520 

10% 

20070530 

Obstructive Sleep Apnea 

6847 

30% 

20070705 

PTSD 

9411 

10% 

20070529 

0% x 4/Not Service Connected x 1 

20070530 

Combined: 10% 

Combined: 50% 



 

 

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. The DES 
has neither the role nor the authority to compensate members for anticipated future severity 
or potential complications of conditions resulting in medical separation nor for conditions 
determined to be service-connected by the Department of Veterans Affairs (DVA) but not 
determined to be unfitting by the PEB. However the DVA, operating under a different set of 
laws (Title 38, United States Code), is empowered to compensate all service-connected 
conditions and to periodically re-evaluate said conditions for the purpose of adjusting the 
Veteran’s disability rating should the degree of impairment vary over time. The Board’s role is 
confined to the review of medical records and all evidence at hand to assess the fairness of PEB 
rating determinations, compared to VASRD standards, based on severity at the time of 
separation. 

 

Chronic Back Pain Condition. The MEB narrative summary (NARSUM) reported the CI started 
experiencing LBP in October, 2004 following a Humvee accident. In December, 2004 he 
reinjured his back when his vehicle was struck by an IED. After minimal response to treatment, 
the CI underwent a lumbar discectomy in April 2005 for a herniated L5-S1 disc. Following 
surgery, the CI continued to complain of back pain with radiation to the right lower extremity 
and numbness of the right foot. Magnetic resonance imaging, 30 November 2006, revealed 
evidence of the right laminectomy at L5-S1, degenerative disc changes, and a minimal disc 
bulge at L4-5 without nerve impingement. The vertebral bodies were intact and the alignment 
was straight. Electrodiagnostic testing for LBP with right leg pain on 19 January 2007 
demonstrated evidence of L5 radiculopathy. Physical therapy performed a range-of-motion 
(ROM) examination on 22 January 2007 using an inclinometer; however, the examiner did not 
specify the placement of the device or whether a dual inclinometer method was used. Flexion 


was reported to be 28 degrees which was not consistent with the subsequent VA Compensation 
and Pension (C&P) examination. Muscle spasm and abnormal gait was recorded as well. The 
MEB examination on 23 January 2007 documented on the DD 2808 recorded “ROM limited by 
pain-decreased flexion, extension, lateral flexion, and rotation” without further detail. Straight 
leg raise (SLR) was indicated as positive on the right. Gait, strength, and reflexes were normal. 
The NARSUM, 12 February 2007, noted that the CI was well nourished, well developed, and in 
no acute distress. He had well healed surgical incisions and some tenderness to palpation in 
paraspinal muscles. The examiner noted some mild spasm in the paraspinal muscles. The 
motor exam was normal (5 out of 5) throughout. Deep tendon reflexes were normal in the 
knees and ankles. The examiner noted some decreased sensation on the right consistent with 
an L5 distribution. A 15 February 2007 physical medicine examination for persisting right leg 
pain recorded normal gait and posture and “no physical disability was observed.” At the C&P 
examination, almost 2 months after separation, 30 May 2007, the CI reported radiating pain 
into the right leg constantly and a sharp stabbing pain in lower back. He rated his pain at rest 
as 5 out of 10. The CI reported having daily episodes of pain lasting 10 -12 seconds with a 
severity of 8 to 9 on a scale of 10. He was not certain what precipitated the pain but he said 
rest and not lifting relieved it. The CI reported that flare ups were not impairing his activities of 
daily functioning. He denied the use of a cane or walker. He was not using a brace. He 
reported that he could walk approximately 200 meters in 5 to 10 minutes. The CI reported if he 
was not having a flare up, he did well and his condition did not impair his ability to work. He 
had not missed any time from work. The VA examination reported that the CI was in no acute 
distress, had a negative antalgic gait but elsewhere the examiner typed “had abnormal gait with 
no ambulatory aids.” The goniometric thoracolumbar ROMs were flexion 70 degrees, extension 
20 degrees, lateral being 30 degrees to both sides and rotation 30 degrees to both sides, 
combined 210 degrees. The examiner noted that there was pain at the end points of flexion 
and extension. The examiner noted positive bilateral paravertebral muscle tenderness and a 
positive right SLR. The back was normal in contour and there was no muscle spasm or guarding 
noted. 

 

The Board directs attention to its rating recommendation based on the above evidence. The 
PEB coded the chronic back pain condition 5243 for intervertebral disc syndrome but likely 
applied the USAPDA pain policy with a rating of 10%. The VA assigned a 10% rating based on 
limitation of motion shown on the C&P examination coded 5242. ROM evidence in the 
proximate C&P examination supports no more than a 10% disability rating including 
consideration of VASRD §4.59 (Painful motion), §4.40 (Functional impairment), or §4.45 
(Deluca). The Board considered the physical therapy ROM performed prior to separation but 
noted it was performed by a methodology that did not conform to the VASRD rating formula 
which is based on a goniometric measurement of thoracolumbar flexion from the vertical 
plane. The results were not consistent with the conforming VA examination, and were not 
consistent with the known pathology. Therefore the Board concluded the C&P examination 
was the most probative and reflective of the disability at the time of separation. There is no 
pathway to any higher rating under this code as muscle spasm or guarding severe enough to 
cause abnormal gait or spinal contour (20%), or ankylosis of the entire spine (40%) are not 
present. The Board also considered rating the back condition using the VASRD formula based 
on incapacitating episodes due to intervertebral disc syndrome. The criteria are based on the 
number of incapacitating episodes in the prior 12 months requiring bed rest prescribed by a 
physician. No documented physician directed bed rest was evidence in the service treatment 
records or at the time of the C&P examination. The Board concluded the evidence did not 
support a higher rating using this alternate formula providing no additional benefit to the CI. 
The Board also considered if additional disability rating was justified for peripheral nerve 
impairment due to radiculopathy, as done by the VA. The CI had a herniated disc with radicular 


pain treated with surgery, and there were symptoms of radiating pain documented in the 
treatment records as well as an electromyogram showing findings of an L5 radiculopathy. 
However, examinations indicated normal strength, reflexes and gait and the sensory changes 
did not affect his job. The presence of functional impairment with a direct impact on fitness is 
the key determinant in the Board’s decision to recommend any condition for rating as 
additionally unfitting. While the CI may have suffered additional pain from the nerve 
involvement, this is subsumed under the general spine rating criteria, which specifically states 
“with or without symptoms such as pain (whether or not it radiates).” Therefore the critical 
decision is whether or not there was a significant motor weakness which would impact military 
occupation specific activities. There is no evidence in this case that motor weakness existed to 
any degree that could be described as functionally impairing. The Board therefore concludes 
that additional disability rating was not justified on this basis. 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 chronic back pain condition. 

 

 

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, the 
PEB’s likely reliance on the USAPDA pain policy for rating chronic back pain condition was 
operant in this case and the condition was adjudicated independently of that policy by the 
Board. In the matter of the chronic back pain condition 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 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 

Chronic Back Pain 

5243 

10% 

COMBINED 

10% 



 

 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20071202, w/atchs 

Exhibit B. Service Treatment Record 

Exhibit C. Department of Veterans’ Affairs Treatment Record 

 

 

 

 

 xxxxxxxxxxxxxxxxxxxxxxx, DAF 

 Acting Director 

 Physical Disability Board of Review 

 


SFMR-RB 


 

 

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

(TAPD-ZB / xxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 

 

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation 
for xxxxxxxxxxxxxxxxxxxx, AR20130005360 (PD201200169) 

 

 

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 accept the Board’s recommendation and hereby deny the individual’s application. 

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 xxxxxxxxxxxxxxxxxxxxxxx 

 Deputy Assistant Secretary 

 (Army Review Boards)