RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY 

CASE NUMBER: PD1201464 SEPARATION DATE: 20020427 

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 (11B/Infantry), medically separated for 
chronic low-back pain (LBP). He first experienced LBP during a unit run in 1999; it resolved, but 
then recurred in 2001. The CI did not improve adequately with conservative treatment and was 
unable to perform within his Military Occupational Specialty (MOS), or meet physical fitness 
standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board 
(MEB). Chronic LBP (right) was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-
501. No other conditions were on the MEB’s submission. The PEB adjudicated chronic LBP with 
L5/S1 radiculitis without focal motor or reflex abnormalities as unfitting, rated 10% with 
application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no 
appeals and was medically separated with a 10% combined disability rating. 

 

 

CI CONTENTION: “The Medical Board came back with a rating of 10% for a degenerated disk. I 
had followed up with Veteran Affairs shortly after discharge and received a 70% rating for all 
service connected injuries and I am currently rated at 80% service connected through the VA. I 
have since had surgery on my lower back which has seen little relief of pain. I was rated by the 
VA for the injury rated by the medical board at a 40% rating. In December on 2010 it was found 
by an MRI that I have another disk bulging which is directly above the injuried [sic] disk from 
Active Service. In December 2011 I had surgery on the disk rated by the medical which has 
proven to given me little relief. The other service connected injuries consist of verrucous [sic] 
veins which I had two vein strippings while in service. I also had surgery on my right calf muscle 
do to a vein compartment issue which left the inner portion of my lower leg numb. Rating also 
for hearing which I was fitted for improper hearing protection. The ear protection did not 
measure for canels [sic] of different proportion while being issued for the smaller ear canel 
[sic]. This does not include the mental and physical aguish I have dealt with in the past 10 years 
with pain management. Before surgery I was up to taking 15mg of Oxicodone 3 times a day to 
function. Although it has been reduced to 10 mg of Oxicodone twice a day I still have large 
quantities of pain. Since February of 200812 [sic] when I suffered a horrific inflammation of 
the service connect [sic] lower back disc injury my left leg is numb from the waist down with 
constant tingling in the left foot. Occasionally having burning pains down my left leg. Also 
experience muscle spasms and cramping in both legs. The right leg being the lesser of the 
problems.” 

 

 

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. Ratings for unfitting conditions will be reviewed 
in all cases. Only the LBP with radiculitis is within the Scope 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 respective Board for Correction of 


Military Records. The Board acknowledges the CI’s information regarding the significant 
impairment with which his service-connected conditions 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 20020219 

VA - (4 Mos. Post-Separation) VARD 20030116 (most proximate to 
Date of Separation) 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

Chronic LBP… 

5295 

10% 

DDD 

5003-5292 

40% 

20020820 

No Additional MEB/PEB Entries 

S/P Right … Knee 

8599-8526 

20% 

20020820 

Residuals, S/P Right Leg Vein… 

7120 

10% 

20020820 

Left Leg Varicose Veins 

7120 

10% 

20020820 

Right Leg Tender Scars … 

7804 

10% 

20020820 

Tinnitus 

6260 

10% 

20020806 

Bilateral Hearing Loss 

6100 

10% 

20020806 

Not Service-Connected x 1 

20020820 

Combined: 10% 

Combined: 70% 



 

 

ANALYSIS SUMMARY: The 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 service 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 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. 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 noted 
that the 2002 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. 

 

Chronic Low Back Pain Condition. The CI initially reported LBP in March 1999 which started 
during a unit run. The CI had a recurrence in February 2001 while walking up a flight of stairs in 
his barracks and reported constant pain following that. Magnetic resonance imaging (MRI) on 
21 March 2001 revealed a left lateral L5/S1 disc protrusion which contacted and displaced the 
left S1 nerve root. There was also a “very small annular tear and disc protrusion” at L4/L5 that 
showed “minimal narrowing of L5.” A single photon emission computed tomography (SPECT) 
scan, a test to evaluate vascular perfusion, was performed on 3 April 2001 and revealed 
hypoperfusion in the medial right calf that correlated with the complaints of pain on 


examination indicating a non-radicular component to the pain. There was normal perfusion in 
the left leg. Conservative treatment, including physical therapy (PT), traction, and lumbar 
stabilization was unsuccessful. He was referred to Physical Medicine and Rehabilitation (PMR) 
in October 2001 for further management. According to the narrative summary (NARSUM), a 
bone scan of the lumbosacral spine and hip in November 2001 was read as normal. The 
NARSUM stated that the CI was recommended for permanent profile by the PMR physician 
because of worsening pain, difficulty sleeping, walking, and getting up from a seated position. 
The NARSUM was dictated 4 months prior to separation. The CI reported that his pain had 
worsened and that he was unable to walk or get out of his chair some days. He also reported 
constant numbness of the right medial leg, but there was some belief that this might have 
resulted from a fasciotomy performed in July 2001 for a right leg posterior compartment 
syndrome. The CI also reported that he was having difficulty standing in one position for too 
long, running, lifting, carrying, and doing pushups and sit ups. The CI reported that avoiding 
sitting or standing for extended periods of time and a certain analgesic (unknown) was helpful 
in alleviating the pain; however, he was not taking medication for pain at that time. On 
examination, the patient had reduced extension, but the range-of-motion (ROM) was otherwise 
normal. The examiner noted diffuse tenderness to palpation along the entire lumbosacral 
spine. Four of five signs of non-organic pain were present. The CI’s muscle strength and 
reflexes were normal. There was normal sensation in the lower extremities with the exception 
of the medial aspect of the right leg; this was thought to be secondary to the prior fasciotomy 
and not noted as impairing duty. The C&P examination was on 20 August 2002, 4 months after 
separation. The CI reported chronic back pain for 4 years which was constant with shooting 
pain from the lower back down both legs. The CI reported a flare up every couple of weeks 
which last 3 to 4 days and required him to have bed rest every couple of months. The CI 
reported that he was able to complete activities of daily living, vaccum, walk a reasonable 
distance, drive a car, shop, and take out the trash. He reported that he was unable to climb 
more than a flight of stairs at a time and he avoided lawn mowing and gardening. He had been 
employed as a cashier and reported missing a day of work each month, mostly due to his 
radiating back pain. On examination, the examiner made note of the absence of symptoms 
consistent with intervertebral disc syndrome (no radiation of pain in the lumbar spine, no 
muscle spasm, and no signs of radiculopathy). The examiner reported the presence of 
paravertebral tenderness and decreased ROM in extension, rotation, and lateral bending. His 
flexion was near normal. The examiner stated “There is no extension of the lumbar spine and 
he has pain on attempting to extend the lumbar spine.” It was also noted that there was no 
ankylosis of the spine. 

 

The Board directed its attention to the rating recommendation based on the above evidence. 
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 two examinations 
proximate to separation. The two examinations bracketed the date of separation within a 
month of each other. It is obvious that there is a clear disparity between these examinations, 
with very significant implications regarding the Board's rating recommendation. The Board 
thus carefully deliberated its probative value assignment to these conflicting evaluations, and 
carefully reviewed the service file for corroborating evidence in the 12-month period prior to 
separation. The Board observed that the MEB examination showed better ROM despite the 
presence of four non-organic signs of pain. This examination was also more consistent with the 
examinations recorded at various clinical appointments the year prior to separation and with 
the clinical and diagnostic pathology in evidence. The incapacitation, reported by the CI at the 
C&P examination as being bed rest for 3 to 4 days every couple of weeks, was not supported by 
the clinical record or the commander’s letter. There is not a reasonable accounting for 


progressively impaired ROM in the fairly short interval between the MEB and VA examinations 
or the increased level of symptoms reported by the CI at the C&P examination. The VA ROM 
evaluations rely on subjective pain thresholds which are plainly associated with financial 
incentive, thus intrinsically subject to some loss of objectivity. Therefore, based on all evidence 
and associated conclusions just elaborated, the Board is assigning preponderant probative 
value to the MEB evaluation. The Board agreed that the CI’s back condition, using the code 
5292 for limitation of motion based on the MEB examination was not greater than slight, 
providing no advantage to the CI. The Board did not concur with the VA assessment of severe 
limitation in ROM which was based on the C&P examination. The Board reviewed the VASRD 
standards for code 5293, intervertebral disc syndrome that were current at the time of the PEB 
adjudication and all agreed that the CI’s condition was not compensable using this code. 
Although, there was evidence to support characteristic pain, there was no demonstrable 
muscle spasm, absent ankle jerk, or other neurological finding present which is required for this 
syndrome. The Board noted that while the CI reported incapacitation of 3 to 4 days every 
couple of weeks to the C&P examiner, this is not supported by the record. The Board reviewed 
the rating criteria for VASRD code 5295, lumbosacral strain, used by the PEB to assign a 10% 
disability. The Board agreed that the evidence documented in the service treatment records 
(STR) did not support a higher rating than that adjudicated by the PEB. After due deliberation, 
considering all of the evidence and mindful of VASRD §4.3 (Resolution of 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. 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 chronic back pain 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 

Chronic Low Back Pain 

5295 

10% 

COMBINED 

10% 



 

 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20120629, w/atchs 

Exhibit B. Service Treatment Record 

Exhibit C. Department of Veterans’ Affairs Treatment Record 

 

 

 

 

 xxxxxxxxxxxxxxxxxxxxxxxx, 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 xxxxxxxxxxxxxxxxxxx, AR20130007727 (PD201201464) 

 

 

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 xxxxxxxxxxxxxxxxxxxxxx 

 Deputy Assistant Secretary 

 (Army Review Boards)