RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  MARINE CORPS 
SEPARATION DATE:  20091129 

 
NAME:    
CASE NUMBER:  PD1200361 
BOARD DATE:  20121129 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty,  SGT/E-5,  6467/Consolidated  Automatic  Support 
System  (CASS)  Technician  (2yrs)  –  previously  3531/Motor  Vehicle  Operator  (5yrs),  medically 
separated  for  a  low  back  condition.    He  did  not  respond  adequately  to  treatment  and  was 
unable to fulfill the physical demands within his Military Occupational Specialty (MOS), meet 
worldwide deployment standards or meet physical fitness standards.  He was placed on limited 
duty  and  underwent  a  Medical  Evaluation  Board  (MEB).    Lumbago,  displacement  of  lumbar 
intervertebral  disc  without  myelopathy,  degeneration  of  lumbar  intervertebral  disc  and 
unspecified  hearing  loss  were  forwarded  to  the  Physical  Evaluation  Board  (PEB)  IAW 
SECNAVINST 1850.4E.  The PEB (PEB) adjudicated L4-L5, L5-S1 degenerative disc disease (DDD) 
as unfitting, rated 20%, with application of the Veteran’s Affairs Schedule for Rating Disabilities 
(VASRD).    Herniated  intervertebral  disc  (HNP)  L5-S1,  sciatica,  and  low  back  pain  were 
determined to be not unfitting and Category II (CAT II) conditions.  Bilateral hearing loss was 
determined to be a Category III (CAT III) condition.  The CI made no appeals, and was medically 
separated with a 20% disability rating.   
 
 
CI  CONTENTION:    The  CI  Contended,  “Per  DODI  6040.44,  5.e  (2).A  and  5.e.  (2).B:  I  hereby 
request  my  separation  be  considered  for  medical  retirement  due  to  (conditions  found 
disqualifying for service) AND all other conditions not determined to be unfitting by the PEB but 
found disabling by VA decisions.”   
 
 
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 conditions, herniated intervertebral 
disc L5-S1, sciatica, lower back pain, and bilateral hearing loss, as requested for consideration 
meet the criteria prescribed in DoDI 6040.44 for Board purview and are 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 Board for Correction of 
Naval Records.   
 
 
 
 
 
 
 
 
 
 
 
 

RATING COMPARISON:   
 

L4-L5 L5-SI Degenerative 
disc disease 
Herniated Intervertebral 
Disc L5-S1 
Lower Back Pain 
Sciatica 

Bilateral hearing loss 

Cat II 
Cat II 
Cat II 

Cat III 

Service IPEB – Dated 20090919 
Condition 

Code 
5237 

Rating 
20% 

VA (~11 Mos. Post-Separation) – All Effective Date 20091130 

Condition 

Code 

Rating 

Exam 

Lumbar strain 

5242-5237 

20%* 

20101026 

Sciatica 

Bilateral hearing loss 

Not Service Connected, No 

Diagnosis 

Not Service Connected, 
Hearing Normal for VA 

Purposes 

6260 

10% 

20101026 

20100611 

20100611 

 

↓No Additional MEB/PEB Entries↓ 

Tinnitus 

Combined:  20% 

0% X 0 / Not Service-Connected x 1 

Combined:  30%* 

*increase lumbar strain to 40 % effective 20110929 for a new combined of 50%. 
 
 
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.    It  must  also  judge  the fairness  of PEB  fitness  adjudications  based on the  fitness 
consequences of conditions as they existed at the time of separation.  The Board’s threshold for 
countering  DES  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. 
 
Low Back Condition.  The Board deliberated L4-L5 and L5-S1 DDD, HNP L5-S1, lower back pain, 
and sciatica as a low back condition.  The CI had an insidious onset of atraumatic back pain with 
radiation to the right lower extremity in 2005 for which he sought treatment in May 2006.  He 
was  diagnosed  with  a  lumbar  strain  and  treated  conservatively.    The  pain  persisted  despite 
treatment  with  nonsteroidal  anti-inflammatory  and  muscle  relaxant  medications,  physical 
therapy and chiropractic care.  In 2008, a magnetic resonance imaging (MRI) study was ordered 
which revealed DDD of L5-S1 with a slight broad based effacement of the right S1 nerve root 
within the canal, minimal broad-based disc bulge at L4-L5 with mild effacement and very mild, 
early  central  stenosis.    An  orthopedic  spine  specialist  diagnosed  herniated  lumbar  disc  and 
opined  surgical  management  was  not  a  good  treatment  option  and  referred  to  pain 
management.  From June 2008, pain management treated the pain with injections and a medial 
branch  nerve  block  with  only  transient  relief  of  his  pain  and  ultimately  placed  him  on  a 
medication  regimen  which  included  long  acting  narcotics  (Oxycodone  sustained  released  SR, 
15mg, twice daily), short-acting narcotics (Oxycodone Immediate Release IR 8mg, 3 times daily) 
and  a  chronic  non-steroidal  medication  (Relafen  twice  daily).    A  second  opinion  orthopedic 
spine consult concurred with the non surgical treatment approach.  The CI had responded well 
to transcutaneous electrical nerve stimulation (TENS) previously and at the recommendation of 
physical therapy, a home TENS unit was issued.  The service treatment record (STR) reflects the 

   2                                                           PD1200361 
 

pain was controlled on the referenced above medication regime with a pain scale of 3-4 of 10 in 
intensity.    The  LIMDU’s  identified  all  the  referenced  associated  low  back  conditions  and  the 
limitations  included;  no  deployment,  field  duty,  kneeling,  crawling,  lifting  greater  than  15 
pounds,  sit-ups,  push-ups,  running  and  physical  training  or  testing.    The  non-medical 
assessment  (NMA)  corroborated  the  non  deployable  and 
limitation  however 
recommended he be placed on permanent LIMDU to allow him to complete his tour of duty.  
There  were  two  goniometric  range-of-motion 
in  evidence,  with 
documentation of additional ratable criteria, which the Board weighed in arriving at its rating 
recommendation; as summarized in the chart below.     
 

(ROM)  evaluations 

lifting 

Civilian STR ~11 Mo. Pre-Sep 

PT for MEB ~6 Mo. Pre-Sep 

VA C&P ~11 Mo. Post-Sep 

(Degrees) 

Flexion (90 Normal) 

Thoracolumbar ROM 

Ext (0-30) 

R Lat Flex (0-30) 
L Lat Flex 0-30) 
R Rotation (0-30) 
L Rotation (0-30) 
Combined (240) 

Comment 

With pain at extremes of 
motion, no spasm, normal 

gait 

§4.71a Rating 

20% 

 
DOS 20091129 

Flexion to mid tibia 
Extension to neutral 

wnl 
wnl 
wnl 
wnl 
NA 

15 
10 
25 
20 
24 
22 
115 

Painful motion, 4/10 pain, 

0-60 
0-30 
0-30 
0-30 
0-30 
0-30 
190 

Painful motion; Deluca 

observations 40⁰, no spasm, 

normal gait & posture; 

40% 

20% 

 
The MEB  physical  exam  demonstrated  normal neuromuscular  findings and  cited the  physical 
therapy ROMs above.  There was one orthopedic spine surgeon STR within 12 months prior to 
separation  with  references  to  ROMs  that  documented; flexion to  the mid  tibia,  extension to 
neutral, lateral bending normal, painful motion, normal gait, normal alignment, and no findings 
with  provocative  nerve  testing.    At  the  VA  Compensation  and  Pension  (C&P)  exam  after 
separation,  the  CI  reported  weekly  flares  lasting  1-2  days,  pain  that  radiated  to  right  lower 
extremity  exacerbated  with  lifting,  exercising,  and  sitting,  relieved  with  TENS  unit,  rest, 
ice/heat,  stretching,  no incapacitation  episodes and no  use  of  ambulatory  devices.    The  C&P 
exam  after  separation  demonstrated  a  normal  gait,  no  abnormal  contour,  no  spasm,  no 
weakness and normal reflexes.  Lumbar spine X-rays were normal. 
 
The Board directs attention to its rating recommendation based on the above evidence.  There 
is  a  clear  disparity  between  the  MEB  and  VA  ROM  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.  
In assigning probative value to these somewhat conflicting examinations, the Board notes that: 
the VA measurements are consistent with corroborating evidence from the orthopedic spine 
STR;  the  VA  measurements  are  consistent  with the  other  collateral  physical  findings;  the  VA 
measurements are consistent with the diagnostic and clinical pathology in evidence; there are 
no STR reflective of the near ankylosis spine as evidence by the PT flexion ROM exam and the 4 
of 10 pain at the time of the PT exam is inconsistent with the severe flexion ROM.  Therefore, 
based  on  all  evidence  and  associated  conclusions  just  elaborated,  the  Board  is  assigning 
probative value to the VA evaluation.  The PEB and VA chose the same primary coding options 
for the condition and both ruled IAW the VASRD §4.71a general rating formula for diseases and 
injuries  of  the  spine.    The  PEB  assigned  a  20%  based  on  limited  flexion  based  on  a  forward 
flexion greater than 30 degrees and but not greater than 60 degrees.  The VA assigned 20% 
based  limited  flexion  of  40  degrees  with  a  positive  DeLuca  evaluation  and  further  cited  no 

   3                                                           PD1200361 
 

additional  ratings  for  flare-ups,  incapacitation  episodes  or  peripheral  nerve.    The  Board 
considered whether additional rating could be recommended under a peripheral nerve code for 
the  residual  sciatic  radiculopathy  at  separation.    Firm  Board  precedent  requires  a  functional 
impairment tied to fitness is required to support a recommendation for addition of a peripheral 
nerve rating to disability in spine cases.  The pain component of a radiculopathy is subsumed 
under the general spine rating as specified in §4.71a.  There is no motor weakness in evidence.  
Since  no  evidence  of  functional  impairment  exists  in  this  case,  the  Board  cannot  support  a 
recommendation for  additional  rating  based  on  peripheral  nerve  impairment.   There  was  no 
documentation  of  incapacitating  episodes  which  would  provide  for  higher  rating.    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 low back condition. 
 
Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the PEB 
was hearing loss.  The Board’s first charge with respect to these conditions is an assessment of 
the appropriateness of the PEB’s fitness adjudications.  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.  This condition was not listed on the LIMDU’s; implicated in the NMA statement; and, 
was not judged to fail retention standards.  There was no indication from the record that this 
condition 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 this contended 
condition, therefore, no additional disability rating can be recommended. 
 
 
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  low back  condition  and  IAW  VASRD  §4.71a,  the  Board 
unanimously recommends no change in the PEB adjudication.  In the matter of the contended 
hearing  loss  condition,  the  Board  unanimously  recommends  no  change  from  the  PEB 
determinations 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 recharacterization of 
the CI’s disability and separation determination, as follows:   
 

VASRD CODE  RATING 

5237 

COMBINED 

20% 
20% 

L4-L5, L5-SI Degenerative disc disease 

UNFITTING CONDITION 

 
 
 

 

   4                                                           PD1200361 
 

The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120412, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 

 

  
           President 
           Physical Disability Board of Review 

   5                                                           PD1200361 
 

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL 
                                  OF REVIEW BOARDS  
 
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS 
 
Ref:   (a) DoDI 6040.44 
             (b) CORB ltr dtd 18 Dec 12 
 
      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, 
for the reasons provided in their forwarding memorandum, approve the recommendations of 
the PDBR that the following individual’s records not be corrected to reflect a change in either 
characterization of separation or in the disability rating previously assigned by the Department 
of the Navy’s Physical Evaluation Board: 
 
                   

-    former USN  
-    former USN  
-    former USMC 

  
     
 
 
 
 
 

 
      
 

 
 
 

 
 
 

 
 
 

 
 
 

    
  Assistant General Counsel 
  (Manpower & Reserve Affairs) 

   6                                                           PD1200361