RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXX CASE NUMBER: PD1200987 

BRANCH OF SERVICE: ARMY BOARD DATE: 20130320 

SEPARATION DATE: 20070601 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty SSG/E-6 (63M/Bradley Systems Mechanic) medically 
separated for a lumbar spine condition. The CI had a protracted history of back pain, which was 
diagnosed as degenerative disc disease (DDD). Despite physical therapy (PT), pool therapy, 
epidural steroid injections (ESI), activity modifications, and medications, the CI failed 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 chronic low back pain (LBP) condition to the Informal Physical 
Evaluation Board (IPEB) IAW AR 40-501. The MEB also forwarded “Open fractures (Fx’s) of 
multiple metacarpals of the left hand, 2002, status post (S/P) open reduction and internal 
fixation (ORIF), with mild residual weakness and with a cold intolerance” as meets retention 
standards for IPEB adjudication. The initial IPEB adjudicated “Chronic low back pain (LBP) with 
atraumatic onset approximately six years ago” as unfitting rated 10% with application of 
Veterans Affairs Schedule for Rating Disabilities (VASRD). The Administrative Correction to the 
IPEB noted that the hand condition was determined to meet retention standards by the military 
treatment facility. The CI withdrew an initial request for a Formal PEB and he was medically 
separated with a 10% disability rating. 

 

 

CI CONTENTION: “Veteran was discharged with severance pay on 6/1/2007 due to being unfit 
for further service due to degenerative disc disease. The veteran was subsequently awarded 
40% disability for the degenerative disc disease by the Department of Veterans Affairs.” 

 

 

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 lumbar spine 
condition is addressed below and no additional conditions were requested as per 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 Army Board for Correction of Military Records. 

 

 

 


RATING COMPARISON: 

 

Service (Admin Correction) IPEB – Dated 
20061206 

VA - (6 Mos. Pre-Separation) 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Chronic LBP 

5299-5237 

10% 

DDD, L4-5 

5242 

40% 

20061211 

Open Fx’s Multiple 
Metacarpals of the Left 
Hand 

Not Unfitting 

Surgical Scar, Left Hand 

7804 

10% 

20061211 

Metacarpal Fx’s, Left Hand 

5219 

0% 

20061211 

No Additional MEB/PEB Entries 

Other x 9 

20061211 

Combined: 10% 

Combined: 70% 



Derived from VA Rating Decision (VARD) dated 20070614 (most proximate to date of separation [DOS]). VARD 20070531 
entitlement to evaluation for vocational rehabilitation. 

 

 

ANALYSIS SUMMARY: The Board’s authority as defined in DoDI 6040.44, resides in evaluating 
the fairness of Disability Evaluation System (DES) fitness determinations and rating decisions for 
disability at the time of separation. The Board utilizes service and VA evidence proximal to 
separation in arriving at its recommendations and DoDI 6040.44 defines a 12-month interval for 
special consideration of post-separation evidence. Post-separation evidence is probative only 
to the extent that it reasonably reflects the disability and fitness implications at the time of 
separation. 

 

Chronic Low Back Pain Condition. There were two 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 ~ 8 Mo. Pre-Sep 

VA C&P~ 5.77 Mo. Post-Sep 

Flexion (90 Normal) 

55* 

30 (20-30*; 0-20**) 

Extension (30) 

15* 

15 (10-15*) 

R Lateral Flexion (30) 

20* 

15 (10-15*) 

L Lateral Flexion (30) 

20 (22)* 

15 (10-15*; 0-10**) 

R Rotation (30) 

30 

25* 

L Rotation (30) 

30 

25* 

Combined (240) 

170 

125 

Comment 

*Decreased by pain; Grimaces; pain with ROM mid to 
low back; superficial tenderness to palpation (TTP) 
along mid to low back; strength 5/5; sensory normal; 
Waddell’s 2/5; negative bilateral straight leg raise 
with distraction; goniometer used 

*with pain; ** with repetitions, limits due 
to pain; Antalgic gait; additional loss of 
motion on repetitive use due to pain, 
fatigue, weakness or lack of endurance; 
motor/sensory normal 

§4.71a Rating 

20% (PEB 10%) 

40% 



 

The CI was involved in a motorcycle accident in October 2000 and a lumbar spine X-ray 
performed at the time was negative. He continued to complain of LBP with intermittent 
radicular symptoms to both lower extremities. A lumbar spine X-ray performed in November 
2002 revealed very minimal disc space narrowing at L5-S1 area posteriorly and minimal facet 
degenerative changes. Magnetic resonance imaging (MRI) in December 2002 showed L4-5 and 
L5-S1 broad based disc bulges and osteophytes but no significant spinal canal stenosis or neural 
foraminal narrowing. The CI underwent a series of three ESI in June 2006 without relief. He 
was evaluated by neurosurgery who determined he was not a surgical candidate. The MEB 
narrative summary (NARSUM) approximately 8 months prior to separation indicated that the 
CI’s chronic pain was increased with prolonged sitting, standing, bending, reaching, lifting and 
running. He was also unable to bend over and work on equipment, wear his Kevlar, rucksack or 
pass any event for the Army Physical Fitness Test (APFT). The MEB NARSUM physical exam 
findings are summarized in the chart above. The CI was issued a permanent L3 Profile for 


chronic LBP. The commander’s statement noted that the CI’s condition prevented him from 
functioning in his MOS and interfered in his performing required Army duties. In November 
2006, the CI was evaluated by a civilian Neurologist for complaints pains radiating down both 
legs on both sides. Although an electromyelogram (EMG) of the right upper and lower 
extremities was done in November 2006 to rule out myotonic dystrophy, it was negative and 
showed no radiculopathy in the right lower extremity. The neurologist who completed the 
EMG testing also noted normal motor, sensory, and reflex examination in both upper and lower 
extremities. The VA Compensation and Pension (C&P) examination approximately 6 months 
prior to separation noted limited picking up twenty pounds, an inability to sit longer than 30 
minutes, limited bending, and maximum standing for 60 minutes with severe pain flare-ups two 
to three times per week. The CI had constant pain in the lower back rated 7-8 out of 10. He 
was taking Mobic, Cymbalta, Robaxin, and Ultracet (Tramadol and Tylenol). The CI also 
reported numbness and tingling in both legs. The C&P physical exam findings are summarized 
in the chart above. The VA examiner did not mention Waddell’s signs or make any comments 
to suggest embellishment. Later C&P examinations also supported this 40% rating based on 
ROM measurements with repetitive motion in 2008 and ROM measurements without repetitive 
motion in 2011. 

 

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. The 
bilateral neurologic exam was normal on multiple occasions, as was EMG testing of the right 
lower extremity. Since no evidence of functional impairment exists in this case, the Board 
cannot support a recommendation for additional rating based on nerve impairment. 

 

The Board directs attention to its rating recommendation based on the above evidence. The 
PEB coded the chronic LBP condition analogous to 5237 Lumbosacral strain and rated it at 10%. 
The VA coded the DDD, L4-5 condition using 5242 Degenerative arthritis of the spine and rated 
it at 40%. The PEB and the VA chose different coding options, however either coding option 
used the same VASRD General Rating Formula for Diseases and Injuries of the Spine criteria. 
The spine rating considers the CI’s back symptoms “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 MEB exam noted limited ROM flexion (55 degrees) measured by 
goniometer, and an inability to bend over with limited ability to perform his duties. The C&P 
exam indicated severely limited ROM flexion (30 degrees) that decreased even further with 
repetitive motion and that meets the criteria (forward flexion of the thoracolumbar spine 30 
degrees or less) for a rating of 40%. The Board noted that the VA examination was closer to, 
but still prior to, separation. It was also more complete in that it included the effects of 
repetitive motion on the ROM measurements and therefore, it had the higher probative value. 
The available record contained no evidence that would call the accuracy of the VA examination 
into question. After due deliberation, considering all of the evidence and mindful of VASRD 
§4.3 Reasonable doubt, the Board majority recommends a disability rating of 40% for the 
chronic LBP condition. 

 

 

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 LBP condition, the Board, by a vote of 2:1, recommends a disability rating of 40%, coded 
5242 IAW VASRD §4.71a. The single voter for dissent who recommended adopting 5242 at 20% 
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; 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 Low Back Pain 

5242 

40% 

COMBINED 

40% 



 

 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20120516, w/atchs 

Exhibit B. Service Treatment Record 

Exhibit C. Department of Veterans’ Affairs Treatment Record 

 

 

 

 

 

xxxxxxxxxxxxxxxxxxxxx, DAF 

Acting Director 

Physical Disability Board of Review 

 


MINORITY OPINION: 

 

The crux of this case and sole foundation for the majority recommendation, a permanent 
separation of 40% for Chronic LBP, was the C&P exam. The majority vote defaulted to a higher 
rating recommendation based upon the C&P Exam being approximately 6 months prior to 
separation and 48 days after the MEB exam. The majority vote believes the VA Exam has more 
probative value than the MEB exam as this exam is closer to the date of separation. 

 

The MEB NARSUM documented a forward flexion of 55 degrees, equating to a rating of 20% 
using code 5242. However, the PEB adjudicated the condition at 10% using the analogous code 
of 5299-5237. Review of the case indicates that the condition should have been rated at 20%, 
using 5242. The minority vote in this case disagrees with majority and believes that based on a 
total review of the medical history provided, an award of 20% is fair and equitable. 

 

The CI originally injured his back in April 1999 playing football, with a second injury, a 
motorcycle accident, occurring in October 2000. There were two clinic visits after the second 
injury, and none until November 2002. In 2003, there were two clinic visits (February and 
March), and then none again until April 2005. During that time period the CI was deployed. 
Three visits were documented in 2005 (April and May) and the CI underwent three ESI in June 
2006. His last clinic visit prior to separation, June 2007, was in July 2006. Review of all of the 
visits within two years of separation indicated that the CI had some “decreased” ROM; 
however, no numbers were provided. 

 

The CI had his MEB exams in August 2006, with the NARSUM being written in September 2006. 
At the NARSUM, the L-Spine flexion of 55 degrees was recorded. Subsequently, the CI had a 
C&P exam in December 2006, at which time the L-Spine flexion was recorded at 30 degrees. 

 

Based on an entire review of the file, and the fact that the two ROM measurements provided 
were only forty-eight days apart, the minority voter believes that the NARSUM measurements 
are more reflective of the CI’s chronic back condition. There was no clinical pathology to 
indicate that the CI’s back had worsened after the NARSUM. The minority voter understands 
the differences that can occur with back problems, and the fact that individuals with chronic 
back pain have “good” and “bad” days. However, the minority voter believes it is inappropriate 
to base a rating on a single set of measurements, without at least some corroborating evidence 
to indicate that they were most likely the norm. 

 

I respectfully submit that the Secretary consider a minority recommendation that the 
permanent rating for the chronic low back pain condition be increased to 20%. 

 

RECOMMENDATION: The minority voter therefore, recommends that there be a 
recharacterization of the CI’s disability and separation determination, as follows: 

 

UNFITTING CONDITION 

VASRD CODE 

RATING 

Chronic Low Back Pain 

5242 

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 xxxxxxxxxxxxxxxxxx, AR20130007616 (PD201200987) 

 

 

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. 

 

 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 xxxxxxxxxxxxxxxxxxxx 

 Deputy Assistant Secretary 

 (Army Review Boards)