RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY 

CASE NUMBER: PD1200800 SEPARATION DATE: 20031113 

BOARD DATE: 20130305 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty SGT/E-5 (63E/Tank Hull Mechanic), medically 
separated for chronic low back pain (LBP). The CI could not be adequately rehabilitated to 
meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical 
fitness standards. He was consequently issued a permanent L3 profile and referred for a 
Medical Evaluation Board (MEB). The chronic LBP, characterized as “lumbar spine chronic low 
back pain”, was forwarded to the Informal Physical Evaluation Board (IPEB) as medically 
unacceptable IAW AR 40-501. Six other conditions (as identified in the rating chart below) were 
addressed by the MEB, and forwarded as medically acceptable. The IPEB adjudicated the 
chronic LBP as unfitting, rated 10%, with likely application of the Veterans Administration 
Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not 
unfitting. The CI appealed to a Formal PEB (FPEB). The FPEB adjudicated the case using the 
current VASRD rating guidelines which were recently published and in effect at that time. Using 
the new rating formula, the FPEB affirmed the IPEB findings; however the FPEB used a new 
code to describe the CI’s chronic LBP condition. The CI was medically separated with a 10% 
disability rating. 

 

 

CI CONTENTION: “I previously appealed my rating of 10% back in October of 2003. I flew TDY 
along with my JAG representative asking to be raised to 30% because my back condition was 
worse than what the med board had determined. My request was denied at that hearing in Ft 
Lewis. I felt that I should’ve been rated at least 30% for retirement due to my back condition 
due to service connection from 1993 to 2003 & my condition has gotten progressively worse 
since 2003. Thank you!” 

 

 

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 rating for the unfitting LBP condition is 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 Army Board for 
the Correction of Military Records. 

 


RATING COMPARISON: 

 

Service FPEB – Dated 20031015 

VA (1 Mo. Post-Separation) – Effective 20031114* 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Chronic Low Back Pain, 
Secondary to 
Degenerative Disc Disease 

5299-5237 

10% 

Lumbar Spine Degenerative Disc 
Disease, L3-4, L4-5, and L5-S1 

5243 

20% 

20031201 

Decreased sensation Left Lower 
Extremity, Assoc. w/ Lumbar 
Spine Degenerative Disc Disease 

5243-8520 

10% 

20031201 

Pseudofolliculitis Barbae 

Not Unfitting 

Pseudofolliculitis Barbae with 
Keloid 

7813-7800 

30% 

20031201 

Keloids 

Not Unfitting 

Pes Planus 

Not Unfitting 

Bilateral Pes Planus 

5276 

10% 

20031201 

Bunion 

Not Unfitting 

Left Great Toe Bunion 

5280 

0% 

20031201 

Right Great Toe Bunion 

5280 

0% 

20031201 

Shoulder Bursitis 

Not Unfitting 

Left Shoulder Bursitis 

5099-5019 

0% 

20031201 

Headaches 

Not Unfitting 

Headaches 

8099-8045 

NSC 

20031201 

.No Additional MEB/PEB Entries. 

0% X 3 (including above) 
Not Service Connected x 1 (including above) 

20031201 

Combined: 10% 

Combined: 60% (includes bilateral factor 1.9% for 8520; 5276) 



*Based on VARD 20040120 proximate to separation. 

 

 

ANALYSIS SUMMARY: The Board acknowledges that the CI’s service incurred back condition 
worsened after separation, resulting in higher and additional VA ratings. However, 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 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. The Board’s authority as defined in DoDI 6044.40, however, resides 
in evaluating the fairness of DES fitness determinations and rating decisions for disability at the 
time of separation. Post-separation evidence therefore is probative only to the extent that it 
reasonably reflects the disability and fitness implications at the time of separation. 

 

Chronic Low Back Pain. The CI had a history of intermittent LBP since 1995 and CI had 
intermittent episodes of his back pain especially after performing heavy lifting but he was able 
to continue his Army related activities in between those episodes. Following an episode 
associated with moving furniture in September 2000, the episodes became more frequent and 
lasted longer. Examination on 30 September 2002 recorded absence of spasm with flexion of 
70 degrees, extension 20 degrees, and lateral bending of 25 degrees bilaterally. A lumbar spine 
X-ray 8 October 2002 noted mild lumbar scoliosis at about five degrees to the left with some 
straightening of the lumbar lordotic curvature. The presence of scoliosis was present on X-ray 
in 1996 and noted again in March 2003 consistent with a developmental condition. A physical 
therapy examination 18 October 2002 recorded active range-of-motion (ROM) within normal 
limits. Strength was normal and straight leg raising (SLR) negative for radicular signs. On 
2 January 2003, evaluation in the orthopedic clinic documented “low back” flexion of 50 
degrees, extension of 20 degrees (it is not clear if this was a lumbar range of motion). Strength, 
reflexes and sensation were normal with negative SLR for nerve root irritation. A MOS Medical 
Reclassification Board (MMRB) was recommended in January 2003 due to persisting LBP. 
Although the MMRB recommended reclassification, the CI was eventually referred for MEB 
since despite conservative treatment, the CI could not perform activities like running, bending, 
heavy lifting, firing his rifle from a prone position. Magnetic resonance imaging (MRI) on 
10 February 2003 evidenced moderate degenerative changes at L5-S1 with a posterior bulge 
causing mild neural canal stenosis but no nerve impingement. There was also straightening of 
the normal lordotic curve suggestive of muscle spasm. Chiropractic appointments 7 April 2003 


and 14 April 2003 recorded pain report of 3 (2.7) and 2 (1.6) respectively out of 10 on the visual 
analog scale. The CI presented to the emergency department on 7 June 2003 for LBP of 2 days 
duration. The pain was rated 5 and the encounter form recorded the CI was no medications. 
On examination the back curvature was normal, there was no tenderness and ROM was 
indicated as “full”. A follow up orthopedic encounter 13 June 2003 recorded lumbar spine (“L 
spine”) flexion of 60 degrees, extension 20 degrees, lateral bending of 20 degrees with normal 
strength and reflexes and negative SLR. At the time of the MEB narrative summary (NARSUM), 
19 August 2003, the CI reported constant LBP aggravated by standing more than 20 minutes, 
running, repeated bending, and heavy lifting. The MEB NARSUM physical exam on 21 July 2003 
was remarkable for mild tenderness to pressure at the lumbosacral junction with no muscle 
spasms or deformities. ROM was flexion 80 degrees, extension 20 degrees, left lateral flexion 
20 degrees, right lateral flexion 30 degrees, and rotation of 30 degrees both sides. Motor 
strength and neurological exam were both normal. There was a decreased sensation in the left 
lower extremity consistent with S1 sensory dysfunction. An updated MEB evaluation 
performed 11 September 2003 noted the CI complained of increased back pain without any 
new injury. The pain was reported to be 8 on the 10 scale. There was no radiation of pain but 
the CI reported that there was some numbness of the upper thigh. On examination he was in 
no acute distress, gait was normal, he was able to walk on heels and toes, strength and reflexes 
were normal and SLR was negative. ROM was flexion 50 degrees, extension 20 degrees and 
lateral bending 25 degrees bilaterally. The VA Compensation and Pension (C&P) exam 
performed a month after separation cited the MEB exam findings for the lumbosacral spine. A 
subsequent C&P examination on 9 February 2005, 15 months after separation recorded flexion 
of 70 degrees, extension 30 degrees, right lateral bending 38 degrees, left lateral bending 30 
degrees and rotation 45 degrees bilaterally. There was no spasm and gait was normal. The 
Board directs attention to its rating recommendation based on the above evidence. 

 

The Board notes that the VASRD standards for the spine, which were in effect prior to 
September 2003, were changed to the current §4.71a rating standards effective in September 
2003, prior to the CI’s date of separation in November 2003. In accordance with DoDI 6040.44, 
the Board is required to recommend a rating IAW the VASRD in effect at the time of separation, 
therefore the Board considered the rating recommendation based on application of the current 
§4.71a rating guidelines. Both the PEB and the VA adjudicated a rating using the current rating 
guidelines as indicated by the codes used. The PEB rated the CI chronic LBP 10% under code 
5299-5237 (lumbosacral strain) citing the ROM examination from the 21 July 2003 reported in 
the MEB NARSUM showing flexion greater than 60 degrees. The PEB noted the absence of 
spasm and radiculopathy. The VA adjudicated a 20% rating citing the ROM from the 11 
September 2003 examination showing flexion less than 60 degrees but more than 30 degrees 
(coded 5243 noting the MRI results). There were no incapacitating episodes to support a 
minimum rating under 5243 intervertebral disc syndrome. There was no muscle spasm causing 
altered contour or gait at the time of the MEB to support a 20% rating on that basis. Board 
deliberations centered on the 10% versus 20% rating based on limitation of motion. The Board 
reviewed the evidence of the service treatment records (STR) summarized above. The Board 
noted the intermittent worsening of back pain with varying range of motion examinations that 
ranged from 50 degrees of flexion to 80 degrees/normal/full. The Board also noted that the 
varying results did not correlate with exacerbation of back pain as evidenced by the June 2003 
emergency room examination recording full ROM. The 13 June 2003 orthopedic examination 
reporting flexion of 60 degrees, was specified as lumbar spine flexion. Normal lumbar flexion is 
60 and the Board concluded this examination was normal. While the CI was reporting 
increased back pain at the time of the September 2003 examination, there was no cause for 
increased pain, the CI was observed to be in no distress, there was no spasm and gait was 
normal. Although 15 months after separation, the February 2005 C&P examination was noted 
to be similar to the July 2003 MEB examination. The Board noted that of the seven 
examinations over approximately a year prior to separation, two documented limitation of 
motion correlating with the 20% rating under the general formula for rating diseases and 


injuries of the spine while the other five more nearly approximated the 10% rating. The Board 
concluded the overall disability picture reflected in the STR more nearly approximated the 10% 
rating than the 20% rating. The Board considered whether an additional rating for peripheral 
nerve impairment was warranted based on the documented sensory loss suggesting 
radiculopathy at the time of the MEB NARSUM examination in July 2003. 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 pain component of a radiculopathy is 
subsumed under the general spine rating as specified in §4.71a. The sensory component in this 
case (S1 sensory dysfunction) has no functional implications and was not present in other 
examinations. There was no evidence of a motor impairment that could be linked to significant 
physical impairment. Since no evidence of functional impairment existed, the Board cannot 
support a recommendation for additional rating based on peripheral nerve impairment. After 
due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), 
the Board concluded that there was insufficient cause to recommend a change in the PEB 
adjudication of the chronic LBP secondary to degenerative disease 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. 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 chronic LBP, secondary to degenerative disc disease 
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 Low Back Pain, Secondary to Degenerative Disc Disease 

5299-5237 

10% 

COMBINED 

10% 



 

 

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. 

 

 

 

 

 xxxxxxxxxxxxxxxxxxxxxx, 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 
xxxxxxxxxxxxxxxxxxx AR20130004600 (PD201200800) 

 

 

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 xxxxxxxxxxxxxxxx 

 Deputy Assistant Secretary 

 (Army Review Boards)