RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY 

CASE NUMBER: PD1201285 SEPARATION DATE: 20031107 

BOARD DATE: 20130219 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty SPC/E-4 (88M/Motor Transportation), medically 
separated for chronic back pain. He developed back pain after an airborne operation in 
September 2002, underwent treatment by physical therapy, acupuncture and a chiropractor 
but 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 lower back pain 
condition was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW 
AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated the lower 
back pain condition as unfitting, rated 10%, citing criteria of the Veterans Administration 
Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated 
with that disability rating. 

 

 

CI CONTENTION: “When discharged I was still in physical therapy and was complaining of 
tingling and numbness. My unit was being deployed to go to Iraq and stated that since I was 
not able to deploy I was being sent home instead of being fixed. The tingling and numbness 
that I was complaining about in service is now rated by the VA 10% for my left leg and 10% for 
my right leg these conditions are caused by back condition. My spinal condition was skipped 
over my the Army after my unit came on orders to deploy to Iraq and I was told that the V A 
would take care of me and that the unit needed my spot to fill with a new soldier that could 
deploy. I was given a 10% rating by the medical board in Washington D.C. with out being able 
to speak with anyone. My file was sent up and a paper rating came back that I was told to sign 
and accept with out chance of appeal. I was sent home with a 10% rating by the Army which I 
did not agree with. My spine hurts everyday and I am unable to lead a normal life. I have been 
taking narcotic pain medication since the night of my jump accident. I hate having to take 
medication for something that should have been fixed by the Army. Since I am now service 
connected for my bilateral leg radiculopathy due to my spine injury in service I am able to seek 
treatment. My leg condition was not addressed my the Army even though I was being treated 
in service for my legs in connection to my spine. Both my spine and legs will only deteriorate 
as I get older. I believe that if the Army had taken care of me while I was still in I would not 
have as many problems. I feel that the rating in service was rushed and given to me only to 
discharge me as fast as possible in order to fill my deployment slot. I have been rated by the VA 
for conditions that were not addressed by the Army: depression, bilateral knee 
chondromalacia, tinnitus, and migraine headaches.” 

______________________________________________________________________________ 

 

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 
6040.44 (4.a) is limited to those conditions which were determined by the PEB to be specifically 
unfitting for continued military service; and, when requested by the CI, those condition(s) 
“identified but not determined to be unfitting by the PEB.” The chronic back pain 
(encompassing radicular pain) condition 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 
conditions. The other requested conditions: depression, bilateral knee chondromalacia, 
tinnitus, and migraine headaches 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 Correction of Military 
Records. 

 

 

RATING COMPARISON: 

 

Service PEB – Dated 20030722 

VA* (3 Mos. Pre-Separation) – All Effective Date 20031108 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Chronic Back Pain 

5299- 5295 

10% 

Mechanical Low Back Pain 

5235-5237 

20%** 

20030807 

No Additional MEB/PEB Entries 

Bilateral Tinnitus 

6260 

10% 

20030807 

Chronic Strain, Index Through 
Little Fingers, Right Hand 

5221 

0% 

20030807 

Chronic Strain, Index Through 
Little Fingers, Left Hand 

5221 

0% 

20030807 

Chondromalacia With Patellar 
Tendonitis, Right Knee 

5099-5019 

0% 

20030807 

Chondromalacia With Patellar 
Tendonitis, Left Knee 

5099-5019 

0% 

20030807 

 Not Service-Connected x 2 

20030807 

Combined: 10% 

Combined: 30% 



*Derived from VA Rating Decision (VARD) dated 20031224 

** No change to rating in subsequent VARDs from follow-on C&P examinations 

 

 

ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests ratings should 
have been conferred for other conditions documented at the time of separation. The Board 
wishes to clarify that it is subject to the same laws for service disability entitlements as those 
under which the Disability Evaluation System (DES) operates. 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 all service-
connected conditions and to periodically reevaluate said conditions for the purpose of adjusting 
the Veteran’s disability rating should the degree of impairment vary over time. 

 

Chronic Back Pain Condition. There were three goniometric range-of-motion (ROM) 
evaluations 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 

(Degrees) 

MEB Spine Consult 

~7 Mo. Pre-Sep 

(20030409) 

MEB ~6 Mo. Pre-Sep 

(20030508) 

VA C&P ~3 Mo. Pre-Sep 

(20030807) 

Flexion (90 Normal) 

70 

70 

80 

Extension (30) 

30 

30 

30 (35) 

R Lat Flex (30) 

30 

20 

30 (40) 

L Lat Flex (30) 

30 

20 

30 (40) 

R Rotation (30) 

-- 

30 (45) 

30 (35) 

L Rotation (30) 

-- 

30 (40) 

30 (35) 

Combined (240) 

-- 

200 

230 

Comment 

Tenderness 

No deformity. 

Strength normal. 

SLR negative. 

+ Tenderness; spasm 

+ Tenderness; painful motion 

No spasms 

Gait normal. 

Maintained contour. 

Posture forward leaning. 

Strength normal. 

§4.71a Rating 

10% 

10% 

10% 



 

The CI developed back pain after an airborne operation in September 2002 (landed on his back 
after a parachute jump). At that time he was diagnosed with an L2 anterior wedge compression 


fracture with 30% loss of the anterior vertebral height. Computed axial tomographic scanning 
demonstrated anterior vertebral body wedging without compromise of neurologic structures. 
Conservative treatment including physical therapy, acupuncture, and chiropractic manipulation 
were ineffective in alleviating the pain. A spine surgery consultation for the MEB performed on 
9 April 2003, noted the absence of neurological symptoms. On examination, ROM was slightly 
reduced per chart. Lower extremity strength was normal and straight leg raising (SLR) was 
negative for radicular signs. The orthopedic consult did not recommend surgery and referred 
the CI to the MEB board. At the MEB narrative summary (NARSUM) exam dictated 8 May 2003, 
the CI reported baseline pain 5 out of 10 (10 being maximum degree of pain experienced) 
accentuated by standing and driving. The CI stated he could not lift, move heavy weapons, load 
and unload trucks, march, or run, all requirements of his MOS. The MEB physical exam noted 
mildly reduced spine flexion and lateral rotation, full extension; all movements performed with 
pain on motion. There was tenderness and muscle spasm noted by the examiner. The 
examiner did not comment on gait or spinal contour. Reflexes were normal. An X-ray on 
8 May 2003 noted the stable appearance of L2 with approximate 30% loss in height. At the VA 
Compensation and Pension (C&P) examination, 7 August 2003, 3 months prior to separation, 
the CI reported continuous pain in the mid and lower back radiating to the buttocks and on the 
posterior aspect of the upper legs. Thoracolumbar ROM was normal except mildly decreased 
flexion accompanied by pain. There was tenderness but no muscle spasm. Curvature of the 
spine was maintained and gait was normal. A slightly forward posture was observed (10 
degrees of flexion at the waist) secondary to subjective pain and the CI noted increased 
subjective pain in the lower back and knees areas. Weight bearing was stated to be normal. 
SLR was stated to be positive with increased back pain and there was radiation of pain to the 
buttocks and posterior aspect of left upper leg but no tingling sensation in the lower leg. 
Strength and reflexes were normal. The examiner diagnosed the CI condition as chronic 
thoracic strain, status post (s/p) compression fracture at L2 with residual, reduced ROM, pain 
and radiculopathy. 

 

The Board directs attention to its rating recommendation based on the above evidence. The 
PEB rated the CI’s back pain condition at 10%, coded 5299-5295 (Lumbosacral strain) using 
VASRD guidelines in effect of the time of the PEB. The VA assigned a 20% disability based on 
the current VASRD rating guidelines (codes 5235-5237) citing s/p compression fracture and 
painful and limited motion in the lumbar spine with flexion limited to 80 degrees. The VA rating 
decision dated 24 December 2003, applied the current VASRD rating guideline for diseases and 
injuries of the spine that became effective September 2003, after the PEB adjudicated the case, 
but before the CI separated. The Board notes that the 2002 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. The MEB and VA C&P ROM 
examinations support a 10% rating under the §4.71a general formula for rating diseases and 
injuries of the spine (implemented on 23 September 2003). Although muscle spasm was noted 
on the MEB NARSUM examination, there was no detail regarding gait or contour to support 
consideration for the 20% rating. The C&P examination, more proximate to separation 
documented absence of muscle spasm with preserved spinal contour and normal gait. The 
presence of the compression fracture of less than 50% of vertebral height does not result in an 
increased rating under the current VASRD guidelines in effect at the time of separation. The 
Board also considered if additional disability rating was justified for peripheral nerve 
impairment due to radiculopathy. The CI had back pain with radiating pain into the buttocks 
and thigh. CT scanning did not demonstrate any involvement of nerve structures and there 
were no objective neurologic impairments. The spine surgeon did not conclude there was 
evidence of a radiculopathy. 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 radiating pain, 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. Physical examinations indicated normal strength. There is no objective evidence in 
this case of a radiculopathy or weakness that could be described as separately 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 
(reasonable doubt) with application of the 4.71a guidelines in effect at separation, the Board 
recommends a disability rating of 10% for the chronic low back pain condition coded 5237. 

 

 

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 
chronic low back pain condition, the Board unanimously recommends a disability rating of 10% 
coded 5237 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, effective as of the date of his prior medical separation: 

 

UNFITTING CONDITION 

VASRD CODE 

RATING 

Chronic Back Pain 

5299-5237 

10% 

COMBINED 

10% 



 

 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20120720, w/atchs 

Exhibit B. Service Treatment Record 

Exhibit C. Department of Veterans’ Affairs Treatment Record 

 

 

 

 

 XXXXXXXXXXXXXXXXXX, 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 XXXXXXXXXXXX, AR20130006123 (PD201201285) 

 

 

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 accept the Board’s 
recommendation to modify the individual’s disability description without modification of the 
combined rating or recharacterization of the individual’s separation. This decision is final. 

 

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. 

 

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 XXXXXXXXXXXXX 

 Deputy Assistant Secretary 

 (Army Review Boards)