RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXXXX CASE: PD1201964 

BRANCH OF SERVICE: ARMY BOARD DATE: 20130404 

SEPARATION DATE: 20011019 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty SGT/E-5 (12C20/Bridge Crew Member) medically 
separated for chronic low back pain (LBP) with scoliosis. The CI developed the chronic LBP in 
August of 1999 when a netting system rolled on his right side and he hurt his right shoulder and 
back during this incident. He was treated with physical therapy (PT) and temporary profile, 
with temporary improvement. He was put back to regular duty but the pain recurred again. 
The chronic LBP condition could not be adequately rehabilitated 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 chronic 
LBP condition, characterized as “chronic LBP with rotoscoliosis” was forwarded to the Physical 
Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The 
PEB adjudicated the chronic LBP condition with scoliosis as unfitting, rated 10%, with cited 
application of DoDI 1332.39 and AR 635-40 and likely application of the US Army Physical 
Disability Agency pain policy. The CI made no appeals and was medically separated with a 10% 
disability rating. 

 

 

CI CONTENTION: The CI attached a 2-page statement to his application which was reviewed by 
the Board and considered in its recommendations. 

 

 

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 LBP with 
scoliosis 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 Correction of Military Records. 

 

 

RATING COMPARISON: 

 

Service IPEB – Dated 20010829 

VA - (2 Mos. Post-Separation) 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Chronic Low Back Pain 
with Scoliosis 

5299-5295 

10% 

Chronic Lumbosacral Strain with 
History of X-ray Evidence of 
Rotoscoliosis 

5295 

10% 

20011220 

No Additional MEB/PEB Entries 

Other x 8 

20011220 

Combined: 10% 

Combined: 40% 



Derived from VA Rating Decision (VARD) dated 20020502 (most proximate to date of separation [DOS]). 

 

 


ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application 
regarding the significant impairment with which his service-incurred condition continues to 
burden him. It is a fact, however, that 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 Veteran Affairs. The Board utilizes VA 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 
6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating 
decisions for disability at the time of separation. 

 

Chronic Low Back Pain with Scoliosis Condition. The narrative summary notes that the CI 
reported that his back pain was the result of an incident that occurred in August 1999 when a 
netting system rolled on his right side injuring his right shoulder and back. Attempts at 
treatment with PT and temporary profile led to only temporary improvement. At the MEB 
exam about 5 months prior to separation, the CI reported continuing back pain. The MEB 
physical exam quoted range-of-motion (ROM) studies done by PT that included trunk flexion 90 
degrees, right side bend 40 degrees, extension 30 degrees, left side bend 30 degrees, right 
rotation 50 degrees and left rotation 50 degrees. Strength in the lower extremities was 5/5. 
No data regarding reflexes, gait or contour is available from that exam. 

 

Imaging studies included X-rays done on 25 October 1999, 2 months after the incident, which 
revealed reversal of the normal lordotic curve with moderate rotoscoliosis of the lumbar spine. 
A scoliosis survey done on 18 May 2000 showed a 24 degree dextroscoliosis in the low dorsal 
area with a mild counter levoscoliosis in the lumbar area. In the lateral view, body alignments 
appear normal. Lumbar spine series done on 1 June 2001 showed minimal scoliosis of the 
lumbar spine with convexity towards the left. The deviation of the tips of the spinous processes 
from the midline was not greater than 2 inches. Taking into consideration the magnification, it 
was interpreted as at the most 0.5 inch. The sacroiliac joints were within normal limits. There 
was no spondylolysis or spondylolisthesis. 

 

At the VA Compensation and Pension (C&P) exam performed 2 months after separation, the CI 
reported LBP since 1999 aggravated by bending, lifting, stooping, squatting and prolonged 
standing or ambulation. The CI denied any significant lumbar muscle spasms, radiation of LBP 
or significant lumbar radiculopathy. Physical examination revealed painful straight leg raising 
bilaterally at 65 degrees. The examiner stated that there were no postural abnormalities. 
Musculature of the back was normal. There were no neurological abnormalities. Flexion was 
limited to 75 degrees without pain, but all other ROM were normal with mild tenderness noted. 
Spine X-rays done at the time of that examination showed mild scoliosis and mild narrowing of 
disc space L4/L5, L5/S1. Diagnosis was “chronic lumbosacral strain with history of X-ray 
evidence of rotoscoliosis.” 

 

The Board directs attention to its rating recommendation based on the above evidence. In 
accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the Veterans 
Affairs Schedule for Rating Disabilities (VASRD) in effect at the time of separation. The Board 
notes that the 2001 VASRD standards for the spine were in effect at the time of separation and 
it must correlate the above clinical data with that rating schedule (applicable diagnostic code is 
5295 [lumbosacral strain] or 5292 [spine, limitation of motion of, lumbar]). The PEB and VA 
chose slightly different approaches to coding but this did not bear on rating. The PEB rated the 
back pain with scoliosis condition at 10% coded analogously as 5299-5295 (lumbosacral strain) 
citing characteristic pain on motion but without neurologic abnormality or documented chronic 


paravertebral muscle spasms. It was also noted by the PEB that scoliosis was a congenital 
disorder and was not permanently aggravated by service. However, it found it compensable in 
accordance with 10USC 1207a. The VA characterized the condition as chronic lumbosacral 
strain with history of X-ray evidence of rotoscoliosis. Like the PEB, it coded the condition 5295 
and assigned a 10% rating based on characteristic painful or limited motion. 

 

The Board concluded that the evidence available did not indicate muscle spasm on extreme 
forward bending and unilateral loss of lateral spine motion in a standing position which would 
be necessary to justify a 20% evaluation. There was no limitation at the MEB exam and the VA 
exam’s ROM limitations were adjudged as slight (10%) under 5292. The Board could find no 
route to a higher rating and thus 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 for the chronic LBP with scoliosis 
condition. The Board concluded therefore that this condition could not be recommended for 
additional disability 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. As discussed above, PEB 
reliance on DoDI 1332.39 and AR 635-40 for rating the back condition was operant in this case 
and the condition was adjudicated independently of those instructions by the Board. In the 
matter of the LBP with scoliosis 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 with Scoliosis 

5299-5295 

10% 

COMBINED 

10% 



 

 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20121016, 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 

 


 


SFMR-RB 


 

 

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

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

 

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for 
xxxxxxxxxxxxxxxxxxxxxxxxxx, AR20130009568 (PD201201964) 

 

 

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 xxxxxxxxxxxxxxxxxxxxxx 

 Deputy Assistant Secretary 

 (Army Review Boards)