RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY 

CASE NUMBER: PD1201309 SEPARATION DATE: 20020729 

BOARD DATE: 20130314 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty SGT/E-5 (91C/Practical Nurse) medically separated for 
lumbar spine and right foot conditions. He developed low back pain (LBP) in 2001 during 
exercise; and, his persistent pain was diagnosed as spondylolysis and spondylolisthesis 
(degenerative disease of the lumbar facets with slippage of the vertebrae). He developed right 
foot pain after a road march in 2001, and was subsequently diagnosed with hallux valgus and 
degenerative arthritis of the metatarsal phalangeal (MTP) joint of the right great toe. He 
underwent surgical intervention without satisfactory results. Neither of these orthopedic 
conditions could be adequately rehabilitated to meet the physical requirements of his MOS or 
satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a 
Medical Evaluation Board (MEB). He also presented to mental health in early 2002 with anxiety 
and stress related to service and personal stressors, and was diagnosed with generalized 
anxiety disorder. The lumbar and right foot conditions were forwarded to the Physical 
Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. The anxiety disorder was 
submitted as meeting retention standards. The PEB adjudicated the lumbar spine and right 
hallux valgus conditions as unfitting, rated 10% each, citing criteria of the Veteran’s Affairs 
Schedule for Rating Disabilities (VASRD). The psychiatric condition was determined to be not 
unfitting. The CI made no appeals, and was medically separated with a 20% combined disability 
rating. 

 

 

CI CONTENTION: The narrative is in a letter format, and was reviewed by the Board and 
considered in its recommendations. It provides an introduction, noting the Service connected 
conditions “Severe Anxiety Disorder and Spondylolysis (Degenerative Disc Disease)”. The CI 
elaborates the disabilities, economic consequences, and adverse impacts of these conditions on 
multiple facets of his life. No additional conditions are mentioned or requested for Board 
consideration. 

 

 

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 and 
right foot conditions are addressed below. The requested anxiety disorder, which was 
determined to be not unfitting by the PEB, is likewise 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. The Board acknowledges the CI’s information regarding the significant impairment 
with which his service-connected condition continues to burden him; but, must emphasize 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. That role and authority is granted by Congress to the Department of 
Veterans Affairs (DVA), operating under a different set of laws. The Board considers DVA 
evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 
defines a 12 month interval for special consideration to post-separation evidence. Post-


separation evidence is probative to the Board’s recommendations only to the extent that it 
reasonably reflects the disability at the time of separation. 

 

 

RATING COMPARISON: 

 

Service IPEB – Dated 20020608 

VA - Based on Service Treatment Records (STR)* 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Chronic Low Back Pain... 

5299-5295 

10% 

Lumbar Spondylolysis... 

5299-5295 

10% 

STR 

Hallux Valgus Right MTP Joint 

5280 

10% 

Right Foot Hallux Valgus 

5010-5280 

0% 

STR 

Generalized Anxiety Disorder 

Not Unfitting 

Anxiety Disorder 

9400 

10%** 

STR 

Combined: 20% 

Combined: 20% 



Derived from VA Rating Decision (VARD) dated 20020927 (most proximate to date of separation [DOS]). 

* CI failed to report for initial VA rating exams; earliest VA evaluation was dated 20060821 (> 4 years post-separation). 

** Remained at 10% until increased to 70% (effective 20070327) based on evaluation performed 5+ years post-separation. 

 

 

ANALYSIS SUMMARY: 

 

Lumbar Spine Condition. The CI first developed LBP after doing sit-ups in June 2001. The pain 
gradually worsened, and he started getting LBP with heavy lifting and repeated bending. He 
was followed in the troop medical clinic, and X-rays revealed mild spondylolisthesis at L5-S1. 
There were no significant radicular symptoms, and neurologic findings remained normal. There 
are no entries for grossly abnormal range-of-motion (ROM). An orthopedic consultant in March 
2002 found no surgical indications, documented the failure of conservative measures, and 
recommended a MEB. The narrative summary (NARSUM) noted pain with standing longer than 
30 minutes or driving longer than an hour; and, inability to perform “repeated bending or heavy 
lifting.” The physical examination noted tenderness and normal neurologic findings. A 
complete set of ROM measurements was provided, listing normal values for all planes of 
motion. An orthopedic addendum to the NARSUM noted similar physical limitations; and, the 
physical exam documented tenderness, but a normal gait and normal neurological findings. It 
recorded flexion of 90 degrees (normal) and extension to 30 degrees (normal). 

 

The Board directs attention to its rating recommendation based on the above evidence. The 
Board directs attention to its rating recommendation based on the above evidence. The 2002 
VASRD coding and rating standards for the spine, which must be applied to the Board’s 
recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating 
formula for the spine. The applicable coding options for this case are excerpted below. 

5292 Spine, limitation of motion of, lumbar 

Severe ...................................................................................................................................... 40 

Moderate ................................................................................................................................. 20 

Slight ........................................................................................................................................ 10 

5295 Lumbosacral strain: 

 

With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, 

 in standing' position ............................................................................................................. 20 

With characteristic pain on motion ......................................................................................... 10 

The PEB’s 10% rating under code 5295 is supported by the criteria of that code, and the criteria 
for the higher ratings were not in evidence. The VA, in consideration of the same evidence, 
applied the same code and arrived at the same rating. In light of the normal ROM evidence, it 
is obvious that a recommendation for a higher rating under code 5292 cannot be justified. The 
only remaining code available in the 2002 VASRD schedule was 5293 (intervertebral disc 


syndrome), which is not clinically appropriate (nor favorable to rating regardless). 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 of the lumbar spine condition. 

 

Right Foot Condition. The CI developed pain in his right big toe after a march in July 2001. He 
was initially felt to have gout; but, the pain persisted and he was diagnosed by podiatry with 
arthritis at the 1st MTP (as above). He underwent a joint debridement and bunionectomy in 
December 2001; but, was left with significant residual pain. The NARSUM noted chronic pain of 
the right great toe (confined to MTP) aggravated by running, prolonged walking or standing, 
and cold exposure. The physical exam noted hypertrophy, tenderness, valgus (outward) 
deviation of the affected joint. The ROM was significantly limited to 15 degrees of flexion and 
extension (normal 30 degrees and 80 degrees). The podiatric addendum to the NARSUM noted 
similar physical limitations, pain with examination (wincing), and ROM of 10 degrees for flexion 
and extension. 

 

The Board directs attention to its rating recommendation based on the above evidence. Both 
the PEB and VA applied the code 5280 (hallux valgus), which offers only a 10% rating for 
‘severe’ disability. The PEB conceded the compensable rating; the VA did not. The Board 
considered analogous rating to 5017 (gout), which defaults to rating criteria for rheumatoid 
arthritis; but, documentation of incapacitating episodes is required for a 20% or higher rating; 
and, no evidence of such is found in the record. The Board further considered analogous rating 
to 5284 (foot injuries, other); which offers a 20% rating for ‘moderately severe’ disability, and 
30% for ‘severe’. Members agreed, however, that the absence of an ‘injury’ (surgery 
notwithstanding) rendered analogous application of the code too far abreast of its intended 
application; especially considering that 5280 is the most specific §4.71a code for the pathology 
in this case. 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 of the right foot condition. 

 

Contended Anxiety Disorder. The CI first presented for mental health evaluation a month after 
orthopedic referral for the MEB. He expressed anxiety and described panic attacks associated 
with interpersonal stress with his fellow soldiers, concerns about occupational options after 
separation, and the recent premature birth of a son. Medication and counseling were initiated. 
The psychiatric addendum to the NARSUM described a normal mental status examination 
(MSE) and assigned a normal Global Assessment of Functioning (GAF) score. The psychiatrist’s 
assessment is excerpted below. 

He has responded well to treatment. His prognosis is good. This psychiatric condition is not 
unfitting for military duty. This condition does not warrant compensation through the military 
medical retirement system. This condition will not negatively impact on this soldier's social and 
industrial adaptability when he returns to civilian life. 

The commander’s statement noted that the CI was “nonproductive at his job” due to his 
psychiatric symptoms and medication side effects; but, there is no specific corroboration of 
performance limitations due to psychiatric impairment elsewhere in the record. 

 

The Board’s main charge with respect to this condition is an assessment of the fairness of the 
PEB’s determination that it was not unfitting. The Board’s threshold for countering fitness 
determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating 
recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. 
Although the condition was implicated in the commander’s statement, it was not judged to fail 
retention standards; and, the profile was S1. The psychiatric opinion strongly refutes the 
commander’s impression, and was written only 3 weeks later. The condition was reviewed by 
the action officer and considered by the Board. There was no performance based evidence 


from the record (the commander’s statement notwithstanding) that the psychiatric condition, 
emerging 4 months prior to separation, significantly interfered with satisfactory duty 
performance. After due deliberation in consideration of the preponderance of the evidence, 
the Board concluded that there was insufficient cause to recommend a change in the PEB 
fitness determination for the anxiety disorder. 

 

 

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 lumbar spine condition and IAW VASRD §4.71a, the Board 
unanimously recommends no change in the PEB adjudication. In the matter of the right foot 
condition (hallux valgus) and IAW VASRD §4.71a, the Board unanimously recommends no 
change in the PEB adjudication. In the matter of the contended anxiety disorder, the Board 
unanimously recommends no change from the PEB determination as not unfitting. There were 
no other conditions within the Board’s scope of review for consideration. 

 

 

RECOMMENDATION: The Board, therefore, recommends that there be no re-characterization 
of the CI’s disability and separation determination, as follows: 

 

UNFITTING CONDITION 

VASRD CODE 

RATING 

Chronic Low Back Pain with Spondylolysis and Spondylolisthesis 

5299-5295 

10% 

Hallux Valgus, Right Metatarsal Phalangeal Joint 

5280 

10% 

Generalized Anxiety Disorder 

Not Unfitting 

COMBINED 

20% 



 

 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20120626, w/atchs 

Exhibit B. Service Treatment Record 

Exhibit C. Department of Veterans’ Affairs Treatment Record 

 

 

 

 

 xxxxxxxxxxxxxxx, DAF 

 Acting Director 

 Physical Disability Board of Review 

 


SFMR-RB 


 

 

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

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

 

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for 
xxxxxxxxxxxxxxxxxxxxxx, AR20130006859 (PD201201309) 

 

 

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 xxxxxxxxxxxxxxxxx 

 Deputy Assistant Secretary 

 (Army Review Boards)