RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY 

CASE NUMBER: PD1201336 SEPARATION DATE: 20030415 

BOARD DATE: 20130315 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty SGT/E-5 (11B/Infantryman), medically separated for 
chronic low back pain (LBP), which did not improve after surgery, and could not be adequately 
rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or 
to satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a 
Medical Evaluation Board (MEB). The MEB forwarded no other conditions for Physical 
Evaluation Board (PEB) adjudication. The PEB adjudicated the back pain condition as unfitting, 
rated 20%. The CI made no appeals, and was medically separated with a 20% disability rating. 

 

 

CI CONTENTION: “At the time of the Medical Boards decision I was informed by the 
administrative nurse that the board had made a mistake and should have awarded a rating of 
30% or more. She based this on the evidence they presented in the findings and she stated 
they missed the whole point as to why I was at the board with a back injury. She also 
adamantly suggested I appeal this decision but I declined for personal reasons. I have had 
several Doctor and ER visits and MRI’s completed since my discharge in 2003 and they show an 
injury that is gradually getting worse over time. If I had appealed and the decision overturned I 
would have been unemployed, in debt and have post privileges. If I left the decision alone I 
would receive $60,000 for my years of service, still be unemployed but not in debt and no post 
privileges. It wasn’t an easy decision to make but it was the right one for my family. The 
Medical Board’s decision was based on a mistake; my decision to except it was based on 
needing to make a living.” 

 

 

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. 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 20021213 

VA (2 Mos. Pre -Separation) – All Effective Date 20030416 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Back Pain & Loss of 
Motion 

5293-5299-
5292 

20% 

S/p Laminectomy L4-5, L5-S1 

5293-5292 

40% 

20030205 

.No Additional MEB/PEB Entries. 

Left Knee Overuse Syndrome 

5299-5014 

10% 

20030205 

Left Ankle Instability 

5271 

10% 

20030205 

Right Ankle Instability 

5271 

10% 

20030205 

Right Hip Strain 

5299-5014 

10% 

20030205 

Right Knee Overuse Syndrome 

5299-5014 

10% 

20030205 

0% X 1 / Not Service-Connected x 1 

20030205 

Combined: 20% 

Combined: 70% 



 

 

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. The Board has neither the jurisdiction nor authority to scrutinize or render opinions 
in reference to the CI’s statements in the application regarding suspected DES improprieties in 
the processing of his case. 

 

Chronic Low back Pain with Radiculopathy. A review of the medical records shows that the CI 
experienced LBP, well documented since 1992, but exacerbated during a “hard parachute 
landing in Panama in 1995”, and worsened again after a “buddy carry” exercise in 1997. After a 
right L4/L5 hemilaminectomy in February, 1998, symptoms slowly worsened, resulting in a 
second discectomy and partial left hemilaminectomy in October, 2001. With continued 
symptoms of chronic LBP with radiculopathy, a post-operative magnetic resonance imaging 
(MRI) exam in December 2001 revealed “mild right L5/S1 neuroforaminal narrowing,” 
“persistent moderate to severe neuroforaminal narrowing at left L5/S1, possibly affecting the 
S1 nerve root.” Neurology consultation in September, 2002, revealed an abnormal 
electromyogram (EMG) with left L4, L5 and S1 and right S1 neuropathy. At the MEB exam, the 
NARSUM, 24 October 2002, noted “gradual improvement of pain,” but with “persistent 
difficulties with bending, stooping, lifting and running.” The MEB physical exam noted that the 
“general physical examination is within normal limits.” The NARSUM noted that the CI’s 
permanent profile, written in March, 2002, documented “Severe physical restrictions.” The 
presence or absences of surgical scarring, tenderness, muscle spasm, abnormal spinal contour 
or abnormal gait were not addressed. Deep tendon reflexes were normal except for a 
“diminished right ankle jerk,” without demonstrable motor or sensory deficit. Straight leg raise 
test was negative on the right but “somewhat positive” on the left at 80 degrees. Consultations 
obtained for the MEB included neurology, which noted “chronic radiculopathy in left lower 
extremity, L4, L5 and S1.” The MEB diagnosis was “Chronic low back pain secondary to 
degenerative disk disease at L4/5 and L5/S1 with radiculopathy.” A physical therapy 
examination on 28 October 2002 for the MEB records “back” flexion of 55 degrees, extension 
10 degrees, and side bending of 10 degrees to both sides. The request for examination 
requests “ROM lumbar spine.” The PEB noted a moderate loss of range-of-motion (ROM) and 


awarded 20% using codes 5293, 5299, and 5292. At the VA Compensation and Pension (C&P) 
exam, 5 February 2003, 2 months prior to separation, the CI reported daily LBP which was 
“severely limiting,” with outside activities “severely impacted,” including any overhead work 
such as stocking groceries on a shelf. The CI stated that he was unable to sit or stand more than 
15 minutes, had not had a full night’s sleep in 2 years, used a cane, and that his mobility was 
aggravated by repetitive motion. On physical examination, the examiner noted facial grimacing 
upon getting out of a chair, a slow and antalgic gait to the exam room, using a cane. On 
examination was noted a well healed surgical scar, mild tenderness to percussion but no muscle 
spasm. There was no lower extremity muscle atrophy, no sensory abnormality, and deep 
tendon reflexes were normal and symmetrical. The ROM was reported for the “LS spine” 
(lumbosacral spine); flexion was 40 degrees, extension 10 degrees, lateral bending 25 degrees 
bilaterally and rotation 20 degrees bilaterally. There was pain with motion. The VA awarded 
40% rating under Code 5293-5292, due to “severe limitation of motion of lumbar spine” with 
“continued radiculopathy in bilateral lower extremities.” 

 

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 VASRD in 
effect at the time of separation. The Board notes that the 2002 Veteran Administration 
Schedule for Rating Disabilities (VASRD) standards for the spine, which were in effect at the 
time of separation, were changed to the current §4.71a rating standards in 2004. The Board 
must correlate the above clinical data with the 2002 rating schedule. The applicable diagnostic 
codes include 5292 (limitation of lumbar spine motion), 5293 (intervertebral disc syndrome) 
and 5295 (lumbosacral strain). The Board considered the rating under the VASRD diagnostic 
code 5292, in effect at the time of separation. The physical therapy ROM was of the “back.” It 
is not clear if this was thoracolumbar spine (lumbar plus thoracic spine) range of motion or 
lumbar spine as was indicated in the request for the examinations. The C&P examiner reported 
the ROM was of the lumbosacral spine. This is important for assessing the limitation of motion 
compared to normal as it is different for the lumbar spine where normal flexion is 60 degrees 
and the thoracolumbar spine where normal flexion is 90 degrees. Under the VASRD guidelines 
in effect at the time, there were separate codes for limitation of motion of the lumbar spine 
and dorsal (thoracic) spine, therefore the Board concluded the VA examiner was likely reporting 
a lumbar spine motion examination consistent with the VASRD in effect at that time and not 
combined thoracolumbar motion which was introduced into the VASRD in September 2003. If 
the physical therapist and the C&P examiner were reporting lumbar spine flexion, the limitation 
would be considered slight to moderate respectively supporting a 10% rating in the first, and 
20% in the latter examination. Even if the examiners were instead reporting thoracolumbar 
range of motion, the limitation would still be considered moderate supportive of a 20% rating 
(including under current guidelines based on thoracolumbar motion). The Board next 
considered whether a higher rating was warranted under the guidelines for intervertebral disc 
syndrome, code 5293. The CI had well documented intervertebral disc disease with radicular 
symptoms but intermittent signs of radicular involvement, such as a diminished right ankle jerk 
reflex. No care for exacerbations was documented in the service treatment records and there 
are no VA treatment records for back pain in the months after separation. The only criterion 
for Code 5293 during the interim back pain rules period is the frequency of incapacitating 
episodes. Board members concluded that there were no documented incapacitating episodes 
that warranted consideration under the VASRD criteria for that rating, which had become 
effective prior to the CI’s separation. The Board also considered the rating under the code, 
5295 (lumbosacral strain). All members agreed that there was characteristic pain on motion 
supportive of at least a 10% rating. The MEB examinations did not comment on presence of 
spasm, however it was absent at the time of the C&P examination, and there was not unilateral 
loss of lateral bending to support either the 20% or 40% rating under the lumbosacral strain 
guideline. Gait was not documented in the MEB NARSUM, but the C&P examination only two 
months later noted significant gait abnormality. The Board considered the functional loss due 
to pain reported in the examinations and concluded that a 20% rating under 5295 was 


supportable based on functional loss. The Board also considered if an additional disability 
rating was justified for peripheral nerve impairment due to radiculopathy. The CI had well 
documented degenerative disc disease, and the MEB documented nerve root involvement on 
the MRI and electrodiagnostic testing was positive for evidence of bilateral radiculopathy. On 
the MEB examination, the right ankle jerk reflex was diminished however strength was normal. 
However, 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 diminished 
ankle jerk reflex was intermittent and could not be linked to significant physical impairment. 
Since no evidence of functional impairment due solely to neuropathy exists in this case, the 
Board cannot support a recommendation for a separately unfit rating based on nerve 
impairment. The majority of the Board concluded that the preponderance of evidence did not 
support a rating higher that the 20% rating assigned by the PEB. The minority voter placed 
more weight on the VA exam and considered the contribution of radiculopathy to the overall 
disability picture in concluding a rating of 40% was warranted. The Board majority considered 
the VA examination but noted it conflicted with the overall disability picture indicated by prior 
examinations and performance reports (May 2002 NCOER and 12 September 2002 
commander’s letter) indicating performance of administrative duties as Company Training NCO 
was outstanding. Impairment in physically demanding military tasks was noted but no 
impairment in routine tasks was noted. 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 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 low back condition and IAW VASRD §4.71a, the Board by a vote of 2:1 recommends no 
change in the PEB adjudication. The single voter for dissent, who recommended 40%, did not 
elect to submit a minority opinion. 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 Condition 

5293-5299-5292 

20% 

COMBINED 

20% 



 

 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20120606, w/atchs 

Exhibit B. Service Treatment Record 

Exhibit C. Department of Veterans’ Affairs Treatment Record 

 

 

 

 

xxxxxxxxxxxxxxxxxxxxxxxxx, DAF 

Acting Director 

Physical Disability Board of Review