RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY 

CASE NUMBER: PD1201434 SEPARATION DATE: 20021001 

BOARD DATE: 20130301 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty SGT/E-5 (19K/M1 Gunner), medically separated for 
low back pain (LBP) with history of radiation to the right buttock and to bottom of the foot. The 
back condition could not be adequately rehabilitated 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 
no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the 
LBP condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for 
Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% 
disability rating. 

 

 

CI CONTENTION: “I think that my back condition was underrated at the time because I served 
for almost six years honorably. And to be dismissed with only 10% for a pinched nerve 
herniated disc and bulging disc was inappropriate. 1) R/Shoulder impairment 20%, 2)R/had 5th 
metacarpal (broken) 10%, 3)L/wrist carpal tunnel syndrome 10%, 3)L/wrist scar from surgery 
10%.” 

 

 

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 condition LBP as requested for 
consideration meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are 
addressed below, in addition to a review of the ratings for the unfitting conditions. The other 
requested conditions 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 20020703 

VA (# Mos. Pre/Post-Separation) – All Effective Date 20021002 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Low Back Pain 

5293 

10% 

Right L5-S1 Disc Bulge 

5299-5003 

10% 

20021125 

 

.No Additional MEB/PEB Entries. 

Right Shoulder Injury 

5299-5203 

*10% 

20030415 

Left Carpal Tunnel Syndrome 

8515 

*10% 

20030415 

Right Hand Fracture 

5299-5215 

*10% 

20030415 

0% X 2 

 

Combined: 10% 

Combined: 40% 



*Added by VARD 20030515 effective 20021002 

 

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 VA but not determined to be unfitting by the PEB. 
However the Department of Veterans Affairs (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. 

 

Low Back Pain Condition. The orthopedic MEB narrative summary (NARSUM), dictated 16 May 
2002, recorded a year history of LBP with radiation to the right buttock, right posterior thigh, 
right posterior leg and bottom of his foot. There was no specific trauma or injury related to the 
onset of back pain. Magnetic resonance imaging (MRI) on 30 August 2001 demonstrated 
intervertebral disc protrusion at L4-5 and a disc herniation at L5-S1 making contact the right L5 
nerve root, with an associated annular tear. Neurosurgical evaluation in October 2001 
concluded with a recommendation for non-surgical treatment based on the absence of 
weakness, intact reflexes, and negative straight leg raising. Despite treatment duty limiting 
pain persisted. At the time of the MEB NARSUM, the CI stated that he had pain most days, 
which worsened with activity. The CI reported that his permanent profile had led to 
improvement of his pain. He was working as an instructor operator for a tank simulator and 
was not experiencing pain, as he was no longer riding in military vehicles, running, rucking, 
lifting, and going across uneven terrain. On examination, there was full range-of-motion (ROM) 
(lumbar spine), normal strength (5/5) in all muscle groups, and normal, symmetric reflexes. The 
CI reported decreased sensation to pin prick in the right S1 distribution. The CI had a positive 
straight leg exam around 35 degrees on the right. No muscle spasms were noted. The CI’s gait 
was normal and he was able to walk on his heels and toes without difficulty. The VA 
Compensation and Pension (C&P) examination, performed 25 November 2002 a month after 
separation, reported that the CI reported continued pain (8/10 intensity) with radiation, now to 
both lower extremities, despite physical therapy, nonsteroidal anti-inflammatory drugs 
(NSAIDs), and traction. The CI reported to the examiner that he was having difficulty obtaining 
employment secondary to his pain. He was unable to tolerate various classes of pain 
medication. The physical examination revealed a normal ROM with 90 degrees of forward 
flexion, 30 degrees extension, lateral flexion of 35 degrees, and 30 degrees rotation bilaterally. 
The CI reported pain on motion at maximum ROMs. There was no deformity of the spine, no 
paraspinal muscle spasms, and no postural or gait abnormality. The CI was able to squat, walk 
on toes and heels, hop, and bear weight in each leg without evidence of pain. 

 

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 (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 limitation of lumbar spine motion in effect at the time. The Board agreed the ROM at the 
time of the MEB examination and the C&P examination was normal more nearly approximating 
a 0% (zero) rating. There was pain on motion which warrant consideration of a 10% rating IAW 
VASRD §4.49 (painful motion), however, the examinations supported a 10% rating under 5293 
or 5295 as noted below. The Board next considered whether a higher rating was warranted 
under the guidelines for intervertebral syndrome, code 5293, used by the PEB. The CI did have 
evidence of intervertebral disc syndrome with radiating pain without neurologic findings. The 


Board initially looked at the VASRD standards for code 5293 that were current at the time of 
the PEB adjudication and all agreed that the CI’s condition was consistent with the 10% rating, 
reflecting mild disease. There was chronic pain aggravated by activity but no “attacks.” The 
Board noted that the VASRD guidance under 5293 was updated effective 25 September 2002, 
one week before the CI separated. The updated guidance for 5293 was based on incapacitating 
episodes requiring bed rest prescribed by a physician. There was no evidence of incapacitating 
episodes to warrant a minimum rating under the updated 5293 guidance. The Board also 
considered the rating under the code, 5295, lumbosacral strain but concluded the 
preponderance of evidence did not support a rating higher than the 10% rating assigned by the 
PEB. There was pain on motion but no spasm or loss of lateral motion. Although there was 
radiating pain, there was no objective evidence of weakness. The presence of functional 
impairment with a direct impact on fitness is the key determinant in the Board’s decision to 
recommend any condition for rating as additionally unfitting. Therefore the critical decision is 
whether or not there was a significant motor weakness which would impact military occupation 
specific activities. There is no evidence in this case that motor weakness existed to any degree 
that could be described as functionally impairing. The Board therefore concludes that 
additional disability rating was not justified on this basis. 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 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. 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 LBP 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 

Low Back Pain 

5293 

10% 

COMBINED 

10% 



 

 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20120801, w/atchs 

Exhibit B. Service Treatment Record 

Exhibit C. Department of Veterans’ Affairs Treatment Record 

 

 

 

 

 XXXXXXXXXXXXXXXXXXXX, DAF 

 Acting Director 

 Physical Disability Board of Review 

 


SFMR-RB 


 

 

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

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

 

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXX, AR20130006198 (PD201201434) 

 

 

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)