RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXX CASE: PD1201763 

BRANCH OF SERVICE: ARMY BOARD DATE: 20130329 

SEPARATION DATE: 20060216 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty SPC/E-4 (25B/Information Systems Operator) 
medically separated for chronic back pain. The CI developed low back pain (LBP) that radiated 
down both of his legs originating beginning in February 2004. The CI received extensive 
physical therapy but couldn’t be adequately rehabilitated to meet the physical requirements of 
his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a 
permanent L3 profile and referred for a Medical Evaluation Board (MEB). The chronic back pain 
condition was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW 
AR 40-501. The MEB also identified depressive disorder and nightmare disorder conditions as 
medically acceptable for PEB adjudication. The Informal PEB (IPEB) adjudicated the back pain 
condition as unfitting, rated 10%, citing criteria of the US Army Physical Disability Agency 
(USAPDA) pain policy. The remaining conditions were determined to be not unfitting. The CI 
made no appeals, and was medically separated with a 10% disability rating. 

 

 

CI CONTENTION: “ Please see medical records from VA. I have been in constant pain since I 
was separated in 2006 and in addition, I have a broken screw in my lower back that I am being 
denied to get fixed. I have also never been rated for PTSD by the VA. All the doctor wanted to 
do is give me medication that made me feel hazy.” 

 

 

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, 
paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for 
continued military service and those conditions identified but not determined to be unfitting by 
the PEB when specifically requested by the CI. The rating for the unfitting chronic back pain 
condition is addressed below. There are no additional conditions within the DoDI 6040.44 
defined purview of the Board. 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 Board for Correction of Military Records. 

 

 

RATING COMPARISON: 

 

Service IPEB – Dated 20051123 

VA - (9 Mos. Pre/Post-Separation) 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Chronic Back Pain, Status 
Post Lumbar Fusion, 
Without Neurologic 
Abnormality, 
Thoracolumbar Range Of 
Motion Limited By Pain 

5241 

10% 

 Intervertebral Disc Syndrome 
with Spondylolithesis and 
Residual Scar 

5243 

40% 

20061116 

No Additional MEB/PEB Entries 

Other x 3 

20061116 

Combined: 10% 

Combined: 40% 



 

 

 


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. 
However the Department of Veterans Affairs, operating under a different set of laws (Title 38, 
United States Code), is empowered to compensate 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. 

 

Chronic Back Pain Condition. The narrative summary (NARSUM) notes that the CI had a back 
injury and magnetic resonance imaging (MRI) performed on 17 August 2004 had shown 
moderate to severe left and moderate right foraminal stenosis due to Grade 1 spondylolithesis 
of L5, facet hypertrophy and a mild posterior annular bulge. The CI had back surgery in 
December 2004 for persistent radiating back pain associated with decreased sensation and 
lower extremity muscle weakness. The CI’s postoperative course was without complications; 
although he continued with postsurgical pain, there was resolution of the sensory and motor 
deficits. At the most recent neurosurgical follow-up 27 July 2005 the CI reported radiating pain 
down the right leg, without numbness or weakness. The CI’s final diagnosis was myofascial pain 
and resolving radiculitis following lumbar spinal arthrodesis. He was given permanent 
restrictions of sedentary work, no lifting greater than 10 pounds, standing for no more than 15 
minutes, limited stair climbing, and unable to wear combat gear or carry combat loads. At the 
MEB/NARSUM exam 19 October 2005, approximately 4 months prior to separation, the CI 
reported LBP radiating to both his legs. He noted poor flexibility and posterior thigh tightness. 
The MEB physical exam noted tenderness to palpation of the lumbar spine and the right 
paraspinal muscles. Muscle spasms were noted. The spine appearance was “normal” with 
“good full range of motion and no pain elicited with motion.” Straight leg raise (SLR) and 
contralateral straight leg raise were negative. Gait, stance sensation, motor, and reflexes were 
normal. Lumbar range-of-motion (ROM) performed by physical therapy (PT) 2 days prior to the 
MEB exam is noted in the table below. PT also noted at this ROM evaluation that the CI was 
able to heel, toe walk, and fully squat without difficulty. At the VA Compensation and Pension 
(C&P) exam on 16 November 2006, approximately 9 months after separation, the CI reported 
constant LBP rated eight out of ten, that radiated to the calves of both lower extremities and 
increased with activity. He reported stiffness, decreased ROM and weakness. The exam noted 
a normal gait with slightly kyphotic posture, and no evidence of radiating pain on movement. 
There was lumbar tenderness and muscle spasm present. The spine was symmetrical with 
normal curvatures and symmetry of spinal motion. ROM was as noted in the table below; pain, 
fatigue, weakness, lack of endurance and incoordination were noted with repetitive use. The 
exam noted grade three out of five weaknesses of both lower extremities. Reflexes were 
normal. No sensory deficit or bowel/bladder dysfunction was noted. The VA examiner 
remarked that the effect of the condition on the CI’s daily activity” is limited ability to walk long 
distances or lift heavy objects.” The CI indicated he was able to function with medications and 
was employed as a computer programmer. 

 

The Board directs attention to its rating recommendation based on the above evidence. The 
PEB rated chronic back pain status post (s/p) lumbar fusion as 5241 (lumbar fusion) at 10%. The 
VA rated as 5243 (intervertebral disc syndrome) with spondylolithesis at 40%. The Board 
deliberated the evidence available in the record and noted that there were inconsistencies in 
the exam findings. At the MEB/PT evaluation, lumbar flexion was 20 degrees, with painful 
motion. However, the CI was noted by PT to be able to heel, toe walk, and squat fully without 
difficulty. At the MEB exam, 2 days later, the MEB examiner noted “good full range of motion” 
and a normal gait and stance. At the VA exam the CI’s lumbar flexion was 10 degrees with 
significant weakness noted of the both lower extremities. However, the VA examiner also 
noted normal musculature, normal gait and symmetry of spinal motion. The Board agreed by 
majority that the inconsistencies in the exam findings were overcome by the consistency in the 


measured lumbar ROM and that the evidence as reviewed most nearly met the 40% rating as 
specified in the VASRD General Formula for Rating Diseases and Injuries of the Spine. The 
Board deliberated using 5241 or 5243 to rate the CI’s chronic back pain condition. The Board 
chose 5241 as there were no incapacitating episodes and therefore codes 5243 and 5241 are 
equivalently rated. 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 LBP condition. The Board deliberated whether there was evidence of separately ratable 
peripheral nerve disability at the time of separation. The Board noted that the C&P exam post 
separation may have indicated post separation worsening with radiating pain to both lower 
extremities and bilateral weakness. The Board noted as well that the VA exam showed normal 
gait and stance with normal reflexes and no muscular atrophy or sensory deficit, which may 
suggest strength testing was limited by pain and overstated the lower extremity weakness. 
Neurosurgical evaluations on 27 April 2005 and 27 July 2005 indicated lower extremity 
numbness had resolved; muscle strength was five out of five; reflexes, gait and balance were 
normal. 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. Since no 
evidence of functional impairment exists in this case, the Board cannot support a 
recommendation for additional rating. 

 

 

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 back pain s/p lumbar fusion condition, the Board 
by a 2:1 vote recommends a disability rating of 40%, coded 5241 IAW VASRD §4.71a. The 
dissenting vote recommended a rating of 20% coded 5241 IAW VASRD §4.71a and submitted 
the appended minority opinion. 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 Status Post Lumbar Fusion Condition 

5241 

40% 

COMBINED 

40% 



 

 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20120927, w/atchs 

Exhibit B. Service Treatment Record 

Exhibit C. Department of Veterans’ Affairs Treatment Record 

 

 

 

 

 xxxxxxxxxxxxxxxxxxxxxxxxx, DAF 

 Director of Operations 

 Physical Disability Board of Review 


MINORITY OPINION: 

 

The issue in this case is the conflicting ROM evaluations for the lumbosacral spine for rating at 
the time of separation and the disparity between some of these measurements and concurrent 
clinical observations on the same examinations. The CI underwent lumbar spinal fusion surgery 
in December 2004. 

 

On examination in March 2005, 11 months prior to separation flexion of the lumbar spine (LS) 
was recorded as severely reduced to 16 degrees from pain (normal 90 degrees). This is not 
unexpected as this was only three months after major lumbar spinal fusion surgery. 

 

On examination 8 August 2005 ROM of the LS spine was reported as ‘full’ (normal) with some 
spasm. 

 

On the DA Form 2808, medical evaluation for separation, performed 29 September 2005, 5 
months prior to separation, the spine and musculature were reported ‘normal’ with no mention 
of decreased spinal motion. 

 

On examination 5 October 2005 ROM of the lumbosacral spine was again ‘full’ with the CI 
having a normal gait. 

 

On evaluation 17 October 2005, 4 months prior to separation, flexion of the spine was now 
significantly reduced measured at 20 degrees, resulting from pain. This would support a rating 
of 40% (see rating formula below). However, the examiner noted the CI to be able to walk on 
his heels and toes without pain and to be able to fully squat to the ground and to return to full 
standing with only slight pain reported- an action involving flexion of the lumbar spine which 
would be expected to be abnormal, limited and painful if back flexion was as severely limited by 
pain as suggested by the measurements. 

 

Two days later at the NARSUM examination, the motion of the spine was described as “full 
(normal) without pain and the CI to have a normal stance and gait. 

 

On examination in the clinic after an automobile accident on 29 November 2005, 3 months 
prior to separation, an evaluation not performed for any rating purposes, the CI was noted to 
have a ‘full range of motion of the spine’ without pain, tenderness, spinal muscle spasm or pain 
on motion. Gait, posture and stance were normal. 

 

At the C&P evaluation, 16 November 2006, 9 months after separation, the spine was noted to 
be almost fully immobile in all directions from pain with flexion reported as markedly and 
severely reduced to 10 degrees - a fixed, rigid, spine from pain. The examiner, however, noted 
the CI to walk with a ‘normal’ gait and curvature of the spine to be normal - both inconsistent 
with extreme limitation of spine motion from pain. He further reported the only impact on 
claimant’s daily activity to be ‘limited ability to walk long distances or lift heavy objects’. Of 
interest the examiner reported rotation of the spine, a function of the thoracic not lumbar 
spine, to be severely limited, a confusing finding, in the absence of identified thoracic spine 
disease. At this time the CI was fully employed as a computer programmer and was able to 
‘drive a car, dress himself and push a lawn mower’. 

 

The CI seemingly had ‘good’ days when spinal motion was normal (preponderance of 
evaluations) and ‘bad days’ (small number of evaluations) when the motion of the spine was 
severely limited. However, during these reported ‘bad’ periods the CI was able to do activities, 
walking normally, and squatting, etc. incompatible with the reported measurements of 
restricted spinal motion. An adage in medicine is: ‘if the test results are confusing, look at the 


patient’. With application of this simple adage, it is cogently clear to this minority voter 
reviewing the record in evidence, the clinical findings on the examinations of 17 October 2005 
and C&P examination, could not be achieved with the severe limitation of motion of the spine 
suggested on measurement and that these measurements of spinal motion must be considered 
outliers. 

 

This minority voter opines that the CI had some limitation of motion of the spine as expected 
after the lumber surgery and that this exceeded the 10% disability rated by the PEB, but did not 
rise to the level of 40% IAW VASRD 4.17a CODE 5241. This minority voter believes a disability 
rating of 20% most accurately reflects the spine condition at the time of separation and is a fair 
and equitable adjudication. The following is respectfully recommended: 

 

UNFITTING CONDITION 

VASRD CODE 

RATING 

Chronic Back Pain Status Post Lumbar Fusion Condition 

5241 

20% 

COMBINED 

20% 



 

 


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 
xxxxxxxxxxxxxxxxxxxxxxxxxx, AR20130009078 (PD201201763) 

 

 

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 reject the Board’s recommendation and accept the Board’s minority opinion as accurate that 
the applicant’s final Physical Evaluation Board disability rating be modified. There is 
insufficient justification to support the Board’s recommendation in accordance with Army and 
Department of Defense regulations. 

 

2. This modification results in a combined rating of 20% and does not result in a 
recharacterization of the individual’s separation, any change to the separation document or the 
amount of severance pay. 

 

3. 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. 

 

4. 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 xxxxxxxxxxxxxxxxxxxxx 

 Deputy Assistant Secretary 

 (Army Review Boards)