RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
BRANCH OF SERVICE: ARMY
SEPARATION DATE: 20010917
NAME: XXXXXXXXXXXXX
CASE NUMBER: PD1200638
BOARD DATE: 20121113
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SPC/E‐4 (63S10/Heavy Wheeled Vehicle Mechanic),
medically separated for chronic mechanical low back pain (LBP). The CI originally experienced
the sudden onset of low back pain in August 1998 when he was working on a heavy vehicle,
adjusting a track and he felt a "pop" and "his back locked up." He went on to have bilateral
sciatic symptoms and in October 2000, he underwent 2‐level lumbar fusion and discectomies at
L4/L5 and L5/S1. Following surgery he had 70% relief of prior pain with remaining positional
back pain. Chronic mechanical LBP condition could not be adequately rehabilitated. The CI did
not improve adequately with treatment 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 MEB forwarded LBP
secondary to herniated nucleus pulposus status post lumbar effusion to the PEB to adjudicate.
No other conditions were forwarded by the MEB. The Physical Evaluation Board (PEB)
adjudicated the chronic mechanical LBP condition as unfitting, rated 10% citing application of
Department of Defense Instruction (DoDI) 1332.39 and AR 635‐40. The CI made no appeals,
and was medically separated with a 10% disability rating.
CI CONTENTION: “The condition that I have is a common Birth defect but the type of work that
was performed during my 4 years made that defect much much worse”
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 mechanical LBP condition as
requested for consideration meet 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
remaining conditions rated by the VA at separation and listed on the DD Form 294 application
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 IPEB – Dated 20010810
Condition
Code
Rating
VA (~1 Mo. Post‐Separation) – All Effective Date 20010918
Exam
Condition
Code
Rating
Chronic Mechanical Low Back
Pain, Status Post L4‐5, L5‐S1
Discectomies and Fusion
5299‐5295
10%
↓No Addi(cid:415)onal MEB/PEB Entries↓
* No change in VARD dated 20090507.
Combined: 10%
Degenerative Disc Disease,
Lumbar Spine
Tinea Pedis
5292
7899‐7806
20%
10%
0% X 1
Combined: 30%
20010822
20010822
20010822
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. The DES
has neither the role nor the authority to compensate members for anticipated future severity
or potential complications of conditions resulting in medical separation nor for conditions
determined to be service‐connected by the Department of Veterans Affairs (DVA) but not
determined to be unfitting by the PEB. However the DVA, operating under a different set of
laws (Title 38, United States Code), is empowered to compensate all 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. The Board’s role is
confined to the review of medical records and all evidence at hand to assess the fairness of PEB
rating determinations, compared to VASRD standards, based on severity at the time of
separation.
Chronic Mechanical Low Back Pain Condition. The 2001 Veterans’ Administration Schedule for
Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at
the time of separation, were changed on 23 September 2002 for code 5293 (intervertebral disc
syndrome) criteria, and then changed to the current §4.71a rating standards in September
2003. The 2001 standards for rating based on range‐of‐motion (ROM) impairment were subject
to the rater’s opinion regarding degree of severity, whereas the current standards specify rating
thresholds in degrees of ROM impairment. The 5293 criteria also specifically included
symptoms compatible with sciatica which were present in this case. For the reader’s
convenience, the 2001 rating codes under discussion in this case are excerpted below.
5292 Spine, limitation of motion of, lumbar:
5293 Intervertebral disc syndrome:
Severe........................................................ 40
Moderate...................................................... 20
Slight........................................................ 10
Pronounced; with persistent symptoms compatible with sciatic
neuropathy with characteristic pain and demonstrable muscle
spasm, absent ankle jerk, or other neurological findings
appropriate to site of diseased disc, little intermittent
relief........................................................ 60
Severe; recurring attacks, with intermittent relief........... 40
Moderate; recurring attacks................................... 20
Mild.......................................................... 10
Postoperative, cured.......................................... 0
5294 Sacro-iliac injury and weakness:
5295 Lumbosacral strain:
Severe; with listing of whole spine to opposite side, positive
Goldthwaite's sign, marked limitation of forward bending in
standing position, loss of lateral motion with osteoarthritic
changes, or narrowing or irregularity of joint
space, or some of the above with abnormal mobility on forced
motion....................................................... 40
With muscle spasm on extreme forward bending, loss of lateral
spine motion, unilateral, in standing position............... 20
With characteristic pain on motion............................ 10
With slight subjective symptoms only.......................... 0
There were two goniometric 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.
2 PD1200638
Thoracolumbar ROM
(Measurements in Degrees)
Flexion (90⁰ Normal)
NARSUM ~4 Mos. Pre‐Sep
VA C&P ~ 1 Mo. Pre‐Sep
40⁰
‐
‐
‐
‐
‐
‐
70⁰
20⁰
0⁰
0⁰
30⁰
30⁰
150⁰
Extension (30⁰)
R Lat Flexion (30⁰)
L Lat Flexion (30⁰)
R Rotation (30⁰)
L Rotation (30⁰)
Combined (240⁰)
Comment: Surgery
20001030;
Current VASRD normal
listed above
§4.71a Rating
Normal gait; positive
straight leg raise
bilaterally; decreased
vibration on L4‐L5
distribution
20% (PEB 10%)
ROM limited by pain; no fatigue,
weakness, lack of endurance or
incoordination. Normal LE muscle
strength; no significant sensory deficits;
LE reflexes normal (see text)
10%‐20% (see text; VA 20%)
At the MEB exam, 6 months post‐surgery and 4 months prior to separation, the CI reported a
70% relief in pain and the pain was largely positional. Occasional pain was treated with NSAIDs
and Flexeril as needed. The CI could lift 10 pounds easily, but anything more than 20 pounds
caused significant pain, as did prolonged sitting or standing. The MEB exam demonstrated
normal gait, pain limitation of flexion to 40 degrees, mildly positive straight‐leg raise (SLR)
bilaterally, and decreased vibratory sensation at the L4/L5 and L5/S1 levels. Profile and
limitations were no marching, lifting up to 10 pounds and no APFT events. At the VA
Compensation and Pension (C&P) exam performed a month prior to separation, the CI had
decreased ROM secondary to pain as summarized above. The examiner stated that there were
moderate functional limitations because of decreased ROM in the lumbar spine which was
suggestive of a permanent lifting restriction. Lumbar X‐rays showed the presence of the
internal fixation device securing the superior portion body of L4, L5 and the lower margin of the
device fixates into the sacrum. There was evident spondylolisthesis, a pars defect, some mild
joint narrowing in the level above the fixation and some evident degenerative change.
Although remote from separation, the Board notes the VA exam in February 2009, over 8 years
after separation, indicated pain‐limited ROM within the newer VASRD 20% rating criteria and
there was no lower extremity motor or sensory deficit noted. The VA continued their rating of
20% for the lower back condition. The Board directs attention to its rating recommendation
based on the above evidence. The VA exam was closer to separation and further from surgery
to allow for more complete healing. The MEB exam would independently rate at 20% IAW the
VASRD in effect at the time absent application of DOD and Army‐specific rules. The VA exam
documented loss of lateral flexion without spasm and would rate between 10% and 20% for
limited ROM numbers alone; however, the Board considered the examiner’s comments
including repetition and functional loss (VASRD §4.40, functional loss) would justify a 20% rating
as awarded by the VA. After due deliberation, considering all of the evidence and mindful of
VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low
back condition coded 5299‐5292.
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 low back condition was operant in this
case and the condition was adjudicated independently of that instruction by the Board. In the
matter of the low back condition, the Board unanimously recommends a disability rating of
20%, coded 5299‐5292 IAW VASRD §4.71a. There were no other conditions within the Board’s
scope of review for consideration.
3 PD1200638
RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as
follows, effective as of the date of his prior medical separation:
VASRD CODE RATING
5299‐5292
20%
20%
COMBINED
UNFITTING CONDITION
Chronic Mechanical Low Back Pain, status post L4‐5, L5‐S1
Discectomies and Fusion
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120602, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
SFMR‐RB
XXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXX, AR20120022723 (PD201200638)
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 rating to 20% without 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:
4 PD1200638
Encl
XXXXXXXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
5 PD1200638
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