RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY 

CASE NUMBER: PD1200992 SEPARATION DATE: 20020722 

BOARD DATE: 20130207 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty SGT/E-5 (63B/Light Vehicle Mechanic), medically 
separated for low back pain (LBP) post L5/S1 fusion. The CI has had a long history of LBP. He 
sustained a traumatic injury around the 1997 time frame and failed the course of non-operative 
treatment. He had a spinal fusion from L5/S1 in December 2000. Although the surgery relieved 
the symptoms initially it was re-aggravated in October 2001. The low back condition could not 
be adequately rehabilitated and did not improve adequately with treatment to meet the 
physical requirements of his Military Occupational Specialty or satisfy physical fitness 
standards. He was issued a permanent P3 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 LBP condition as unfitting, rated 10%, with application of 
the Veterans Affairs Schedule for Rating Disabilities (VASRD) and 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: “Failed Spinal Fusion.” 

 

 

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 condition of LBP as requested for 
consideration meets the criteria prescribed in DoDI 6040.44 for Board purview; and, 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 Correction of Military Records. 

 

 

RATING COMPARISON: 

 

Service IPEB – Dated 20020521 

VA (4 Mos. Pre-Separation) – All Effective Date 20020723 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Low Back Pain Post L5/S1 
Fusion 

5292 

10% 

Postoperative Residuals, Grade 
1 Anterior Spondylolisthesis of 
the Lumbar Spine 

5292 

40% 

20020325 

.No Additional MEB/PEB Entries. 

Duodenal Ulcer 

7305 

10% 

20020325 

Chronic Dermatitis, Both Hands 

7817 

10% 

20020325 

Left Varicose Veins 

7120 

10% 

20020325 

Right Varicose Veins 

7120 

10% 

20020325 

0% X 5 / Not Service-Connected x 1 

20020325 

Combined: 10% 

Combined: 60% 



VARD 20110503 continued –L-spine @40% 

 

 

 


ANALYSIS SUMMARY: 

 

Low Back Pain Post L5/S1 Fusion Condition. The back exams and goniometric range-of-motion 
(ROM) evaluations in evidence which the Board weighed in arriving at its rating 
recommendation, with documentation of additional ratable criteria, are summarized in the 
chart below. 

 

Lumbosacral ROM 

(degrees) 

MEB ~7 Mo. Pre-Sep 

(20011214) 

VA C&P ~4 Mo. Pre-Sep 

(20020325) 

MEB Addendum ~3 Mo. Pre-Sep 

(20020426) 

Flexion 

“Poor ROM at his L-
spine. … essentially 
no forward flexion of 
his L-spine” 

“Essentially no forward 
flexion of his L-spine” 

60 (strength 3/10) 

Ext 

10 

10 (strength 3/10) 

R Lat Flex 

15 

15 (strength 3/10) 

L Lat Flex 

15 

15 (strength 4/10) 

R Rotation 

20 

20 (strength 5/10) 

L Rotation 

20 

15* (strength 5/10) 

Comment 

Neurovascularly intact 
incl sensation, 
strength and reflexes 

Antalgic gait; painful 
motion; nl sens, nl str 

Active and passive ROMs 
identical; *L Rot noted “reps 15°” 

§4.71a Rating 

40% 

40% (VA 40%) 

20% (PEB 10%) 



 

The narrative summary (NARSUM) stated that the CI had lumbar spinal fusion surgery at one 
intervertebral level (L5/S1) about 18 months prior to separation. He initially had relief from 
surgery but had an aggravating incident about 10 months prior to separation. At the MEB 
exam, approximately 7 months prior to separation, the CI reported constant lower back pain. 
He was taking pain medication for his back pain and was having difficulty with any activity. The 
MEB physical exam noted that the CI had “poor range of motion of his L-spine” and he “has 
essentially no forward flexion of his L-spine.” Muscle strength and sensation was intact 
bilaterally. Regarding lumbosacral X-rays taken approximately 6 months after the aggravating 
incident, the MEB noted “Radiographs reveal stable fusion from L5 to S1. There is no interval 
change from the hardware before and after PLDC.” The diagnosis was “Failed L5/S1 lumbar 
fusion.” Service treatment records (STRs) following the aggravation of his low back condition 
document multiple episodes of acute LBP with decreased ROM and muscle spasm and radiating 
pain and paresthesias. The MEB addendum, dictated approximately 3 months prior to 
separation, was ROM only and is summarized above; it did not address gait, tenderness or 
lower extremity neurovascular exam; but noted decreased strength for all back ROMs as 
summarized above. 

 

At the VA Compensation and Pension exam, approximatley 4 months prior to separation, the CI 
reported trouble with any activity, pain located in the middle of his back, and pain that radiates 
to both of his feet. Pain was described as an electrical shock sensation, also a chronic ache that 
radiates down the right leg. He was taking pain medication. On exam the CI was noted to have 
“poor range of motion of his L-spine. He has essentially no forward flexion of his L-spine.” Gait 
was antalgic. The ROMs at that exam are noted in the table above. The X-ray data (references 
same X-ray as MEB) showed a stable Grade 1 spondylolithesis of L5 on S1 and some 
degenerative changes. The VA exam also noted “Radiographs reveal stable fusion from L5 to 
S1. There is no interval change from the hardware before and after PLDC.” The diagnosis was 
“Failed L5-S1 spinal fusion, chronic low back pain.” The examiner’s assessment was: “It is 
unlikely that management in any direction will restore him to a physical status compatible with 
any type of active work/employment in civilian life and will significantly limit his recreation 
activities. He probably won't be able to work as a mechanic in future employment. He has no 
forward flexion. He is unable to lift anything over 5-lbs.” 

 

The Board directs attention to its rating recommendation based on the above evidence. The 
2002 VASRD coding and rating standards for the spine, which were in effect at the time of 


separation, were changed in late September 2002 regarding criteria for code 5293 
(intervertebral disc syndrome), and then to the current §4.71a rating standards in September 
2003. The applicable 2002 standards in this case for code 5292 were based on ROM 
impairment which was subject to the rater’s opinion regarding degree of severity, whereas the 
current standards specify rating thresholds in degrees of ROM impairment. The older spine 
ratings also did not have the general spine rating formula provision of including pain (whether 
or not it radiates). 

 

The PEB rated LBP post L5/S1 fusion coded 5292 at 10%. The VA rated postoperative residuals, 
Grade 1 anterior spondylolithesis of the lumbar spine coded 5292 at 40%. The PEB noted 
normal values for lumbar spine ROM as 80 degrees (not specified by the examiner), with the 
MEB addendum 60 degrees of lumbar flexion and rated as mild at 10% (and referenced 
American Medical Association [AMA] Guidelines for Permanent Impairment). The PEB noted 
‘normal’ for lumbar spine ROM and the AMA Guidelines are not equivalent to VASRD criteria of 
slight, moderate, or severe limitation of motion. 

 

The Board next turned its attention to the apparent contradiction between the MEB examiner 
and the VA examiner both seeming to have noted “essentially no forward flexion,” but the 
NARSUM addendum ROM of the lumbar spine in degrees (sent 4 months later as an addendum) 
was noted to be 60 degrees of flexion. The wording of the lumbar spine forward flexion of both 
exams is identical and raises the possibility that the VA examiner drew from the recent MEB 
exam. This is not entirely clear because the VA examiner had observations and exam details 
that were not in the MEB exam such as antalgic gait, lumbar scar, weight lifting restrictions, and 
other ROMs that pre-dated the PEB requested addendum. In either case, the contradiction 
between the MEB examiner’s own verbal statement of “essentially no forward flexion” and 
measured lumbar flexion of 60 degrees needs to be reconciled. The ROM addendum is also 
problematic in that it rates the CIs strength as 3-5 out of 10, whereas the MEB and VA exams 
both state muscle strength is 5/5 bilaterally. (Muscle strength is graded on a scale of 1-5 
leaving the interpretation of a strength rating from 1-10 unclear as well.) The Board 
deliberated the effect of the discrepancies regarding the lumbar spine ROM on rating using 
5292. For rating under 5292 (lumbar spine limitation of motion), the deliberation is between 
rating at 20% for moderate limitation of motion based on the 60 degrees of lumbar flexion as 
noted at the MEB addendum ROM measurement; or rating at 40% for severe limitation of 
motion based on the main NARSUM or VA exams’ statement of “essentially no forward flexion.” 
The Board considered the comprehensive exams from the main NARSUM and VA exam; each 
independently supported a 40% (severe) rating. STRs show that the CI was in the emergency 
room four times in the year prior to separation due to back pain. The majority of the treatment 
notes and a neurological evaluation also document significant radicular symptoms. Although 
the addendum ROM 60 degrees flexion with 3/10 strength was one month closer to the date of 
separation, the VA’s functional assessment more closely met the disability picture of the 5292 
40% (severe) limitation of lumbar spine motion. The Board deliberated coding using 5293 
(intervertebral disc syndrome) due to the overlap of the CIs chronic back pain symptoms with 
those of intervertebral disc syndrome. The Board opined that the rating criteria of 5292 were a 
better reflection of the evidence in the record than those of 5293 and that inclusion of non-
ROM disability was best considered by use of analogous coding as 5293-5292 at 40% (severe), 
which provided the fair and equitable rating for the CI’s disability picture. After due 
deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of 
reasonable doubt), §4.7 (Higher of two evaluations) and §4.40 (Functional loss); the Board 
recommends a disability rating of 40% coded 5293-5292 for the LBP post L5/S1 fusion 
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. In the matter of the LBP 
post L5/S1 fusion condition, the Board unanimously recommends a disability rating of 40%, 
coded 5293 IAW VASRD §4.71a. 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 

VASRD CODE 

RATING 

Low back pain post L5/S1 fusion 

5293-5292 

40% 

COMBINED 

40% 



 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20120612, w/atchs 

Exhibit B. Service Treatment Record 

Exhibit C. Department of Veterans’ Affairs Treatment Record 

 

 

 

 

 

 XXXXXXXXXXXXXXXXXXX, DAF 

 Acting Director 

 Physical Disability Board of Review 

 


SFMR-RB 


 

 

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

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

 

 

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation 

for XXXXXXXXXXXXXXXXXX, AR20130004081 (PD201200992) 

 

 

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed 
recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) 
pertaining to the individual named in the subject line above to recharacterize the individual’s 
separation as a permanent disability retirement with the combined disability rating of 40% 
effective the date of the individual’s original medical separation for disability with severance 
pay. 

 

2. I direct that all the Department of the Army records of the individual concerned be corrected 
accordingly no later than 120 days from the date of this memorandum: 

 

 a. Providing a correction to the individual’s separation document showing that the 
individual was separated by reason of permanent disability retirement effective the date of the 
original medical separation for disability with severance pay. 

 

 b. Providing orders showing that the individual was retired with permanent disability 
effective the date of the original medical separation for disability with severance pay. 

 

 c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will 
account for recoupment of severance pay, and payment of permanent retired pay at 40% 
effective the date of the original medical separation for disability with severance pay. 

 

 d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and 
medical TRICARE retiree options. 

 

 

 

 

 

 

3. I request that a copy of the corrections and any related correspondence be provided to the 
individual concerned, counsel (if any), any Members of Congress who have shown interest, and 
to the Army Review Boards Agency with a copy of this memorandum without enclosures. 

 

BY ORDER OF THE SECRETARY OF THE ARMY: 

 

 

 

 

Encl XXXXXXXXXXXXXXXX 

 Deputy Assistant Secretary 

 (Army Review Boards)