RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY 

CASE NUMBER: PD1201065 SEPARATION DATE: 20031114 

BOARD DATE: 20130117 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty SSG/E-6 (92G30/Food Service Specialist), medically 
separated for chronic back pain. The patient underwent surgical intervention (left L3-4 
microdiscectomy) on 6 February 2003. Six months status post (s/p) operatively, the CI 
continued to complain of back and left leg pain. Despite medical and physical therapy (PT), the 
CI did not improve adequately to meet the physical requirements of his Military Occupational 
Specialty (MOS) or to satisfy physical fitness standards. He was issued a permanent L3 profile 
and referred for a Medical Evaluation Board (MEB). “Chronic low back pain/leg pain s/p 
surgery; degenerative disc disease L3-4, L4-5, marked; post operative adhesive epideritis 
(opideral scar) L3-4; L4-5 mild central disc herniation; (and) left L5 radioculopathy” [sic] 
conditions were identified and forwarded by the MEB. The Physical Evaluation Board (PEB) 
adjudicated the chronic back pain condition as unfitting, rated 20% with cited application of the 
US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and was 
medically separated with a 20% disability rating. 

 

 

CI CONTENTION: The CI elaborated no specific contention in his application. 

 

 

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 chronic back pain condition as 
requested for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview; 
and, is addressed below, in addition to a review of the ratings for the unfitting condition. The 
remaining conditions rated by the VA at separation and listed 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 service Board for Correction of Military Records. 

 


RATING COMPARISON: 

 

Service IPEB – Dated 20030917 

VA (~1 Mo. Post-Separation) – All Effective Date 20031115 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Chronic Back Pain 

5099 5003 

5293 5299 

5295 

20% 

Degenerative Disc Disease L3-
4, L4-5 with Left L5 
Radiculopathy Status Post 
Left L3-4 Microdiscectomy 

5243 

40%* 

STR 

Chronic LBP / Leg Pain S/P Surgery 

MEB 

DDD L3-4, L4-5, Marked 

MEB 

Post-Op Adhesive Epideritis (Scar).. 

MEB 

L4-5 Mild Central Disc Herniation 

MEB 

Left L5 Radiculopathy 

MEB 

.No Additional MEB/PEB Entries. 

0% X 2 / Not Service-Connected x 6 

Combined: 20% 

Combined: 40% 



 

ANALYSIS SUMMARY: 

 

Chronic Back Pain Condition. The narrative summary (NARSUM), accomplished by a 
neurosurgeon, indicated the CI initially developed acute low back pain in 1994. Over the next 
several years he experienced chronic low back pain (LBP) until late 2002 when the CI’s LBP 
began to be associated with radiation to his left leg, posterior thigh and lateral foot. The CI had 
three episodes of his left leg giving out and magnetic resonance imaging (MRI) demonstrated a 
large central disk herniation at L3-4 with significant relative central stenosis. The CI underwent 
surgery for L3-4 disc herniation in February 2003 (9 months prior to separation) and was on 
convalescent leave and then 14 days of quarters. Six weeks post-operatively, the CI had 
symptoms and signs of tenderness; painful motion; spasm; and a positive straight leg raise 
(SLR); leg symptoms were improved except for diminished sensation. In June 2003, 4 months 
prior to separation, the CI reported increased back pain and worsening compared with his pre-
surgical condition, with burning dysesthetic pain in the left leg L5 distribution. He was limited 
to working 4 hours per day and was not able to stand on his feet due to his LBP. The MEB 
physical examination revealed back tenderness, marked right paraspinal muscle spasm, 
negative SLR and normal strength. Forward flexion was limited to 30 degrees (normal 90 
degrees). There was no VA Compensation and Pension (C&P) exam proximate to separation as 
the CI failed to show for a scheduled VA exam. The VA rating was based on the CIs service 
treatment records (STRs) and medical records. 

 

The Board directs attention to its rating recommendation based on the above evidence. The 
PEB rated the chronic back pain as 5099-5003, 5299-5293, 5295 based on the Army Pain Policy 
at 20%. The PEB coding was under Interim spine criteria which were changed to the new spine 
criteria effective 26 September 2003, which is prior to the CI’s date of separation. The VA 
coded the condition 5243 (Intervertebral Disc Syndrome) rated 40% based on ROM IAW the 
new VASRD coding. There was no complete goniometric range-of-motion (ROM) evaluation 
proximate to separation. The Board discussed the fact that neurosurgery exams prior to the 
NARSUM did not specify numeric ROMs, nor comment upon them. Exams documented back 
tenderness, marked spasm, and significant functional loss and restrictions. There were no 
notes to indicate incapacitating episodes (defined as “a period of acute signs and symptoms 
due to intervertebral disc syndrome that requires bed rest prescribed by a physician and 
treatment by a physician”) following the surgical recovery. Therefore there was no basis for 
rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating 
Episodes, using code 5243 (Intervertebral Disc Syndrome). The Board considered rating 5243 or 
5237 (Lumbosacral Strain) under the General Rating Formula for Diseases and Injuries of the 
Spine which is with or without symptoms such as pain (whether or not it radiates), stiffness, or 
aching in the area of the spine affected by residuals of injury or disease. 

 

The Board deliberation focused on the 40% versus the 20% rating. The Board discussed if the 
30 degrees forward flexion documented at the MEB exam and the record of post-operative 


functional disability and restrictions met the criteria for a 40% (forward flexion of the 
thoracolumbar spine 30 degrees or less) and if the CI’s disability picture more nearly 
approximated the criteria required for that rating IAW VASRD §4.7 (higher of two evaluations). 
After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable 
doubt), the Board recommends a disability rating of 40% for the chronic back pain condition, 
coded 5243. 

 

 

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 the USAPDA pain policy and the pre-September 2003 VASRD for rating the chronic 
back pain condition was operant in this case and the condition was adjudicated independently 
of that policy by the Board using the VASRD in effect at the time of separation. In the matter of 
the contended LBP condition, the Board unanimously agrees that it was unfitting; and, 
unanimously recommends a disability rating of 40%, coded 5243 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 

Chronic Back Pain 

5243 

40% 

COMBINED (w/ BLF) 

40% 



 

 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20120619, 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 XXXXXXXXXXXXXXXXXXXX, AR20130004005 (PD201201065) 

 

 

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] [Reserve retirement]. 

 

 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)