RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 
NAME:  XXXXXXXXXXXXXX                                                                         BRANCH OF SERVICE:  ARMY 
CASE NUMBER:  PD1200386 
SEPARATION DATE:  20060301 
BOARD DATE:  20121106 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  Reserve  CPT/O-3  (35D/All  Source  Intelligence),  medically 
separated  for  chronic  low  back  pain  (LBP)  secondary  to  multilevel  degenerative  disc  disease 
(DDD).  The CI’s atraumatic back and muscle spasms began in June 1994.  Despite orthopedics 
consults, epidural steroid injections, spinal fusion surgery, and medication the CI failed to meet 
the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness 
standards.    He  was  issued  a  permanent  U2/L3  profile  and  referred  for  a  Medical  Evaluation 
Board (MEB).  The MEB forwarded chronic LBP and limited range-of-motion (ROM), status post 
(S/P)  multi-level  lumbar  fusion  on  the  DA  Form  199  to  the  Physical  Evaluation  Board  (PEB).  
Intermittent  right  shoulder  pain/instability,  chronic  intermittent  left  shoulder  pain,  mild 
hypercholesterolemia,  intermittent  staph  folliculitis/cellulitis  and  pes  planus  existed  prior  to 
service  (EPTS)  conditions,  identified  in  the  rating  chart  below,  were  also  identified  and 
forwarded by the MEB as meeting retention standards.  The PEB adjudicated the chronic LBP 
secondary to multilevel DDD condition as unfitting, rated 0%, with likely application of AR 635-
40, B-29.  The CI made no appeals, and was medically separated with a 0% disability rating. 
 
 
CI  CONTENTION:    “At  the  time  of  my  discharge  I  was  serving  in  exemplary  fashion  and  had 
completed over 12 years of active duty service and another 7 years of Reserve Forces time.  It 
had always been my intention to retire from the Army and I would have done so, were it not for 
the serious back troubles that I experienced during my time in Iraq in 2003-2004 that ultimately 
led to my medical discharge.  I continue to experience difficulties from this (cont.) condition and 
it severely limits my employment opportunities, as a result.  I am unable to remain on my feet 
or  seated  in  an  upright  position  for  long  periods  of  time  without  extreme  discomfort.    In 
addition, I am sorely limited in the kind of physical activity that I can perform to include yard 
work,  physical  exercise,  or  even  walking  any  real  distance.    This  limitation  to  my  ability  to 
conduct physical activity is not limited to my back condition, as both of my shoulders continue 
to deteriorate in condition and use.” 
 
 
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 rating for 
the  unfitting  back  condition  and  the  contended  bilateral  shoulder  conditions  are  within  the 
DoDI  6040.44  defined  purview  of  the  Board  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 Army Board for Correction of Military 
Records. 
 

 

VA (~5 Mos. Post-Separation) – All Effective Date 20060302 

Code 

5010-5242 

Rating 
40% 

Exam 

20060823 

8520 

10% 

20060823 

5010-5203 

5010-5203 
7099-7055 

5276 

20% 

20% 
NSC 

10% 
10% 

20060823 

20060823 
20060823 
20060823 

20060823 
20060823 
20060823 

7819-5284 
0% X 2 / Not Service-Connected x 2 

Combined:  80%* 

RATING COMPARISON: 
 

Service IPEB – Dated 20051118 
Condition 
Code 

Rating 

Chronic LBP Secondary to 
Multilevel DDD 

5241 

0% 

Intermittent Right Shoulder 
Pain/Instability 
Chronic Intermittent Left 
Shoulder Pain 
Mild Hypercholesterolemia 
Intermittent Staph Folliculitis 
/ Cellulitis 
Pes Planus (EPTS) 

Not Unfitting 

Not Unfitting 
Not Unfitting 
Not Unfitting 

Not Unfitting 

No Additional MEB/PEB Entries 

Combined:  0% 

Condition 

Degenerative Changes Lumbar 
Spine 
Sciatica Right Lower Extremity 
Associated with Degenerative 
Changes Lumbar Spine 
Degenerative Changes Right 
Shoulder 
Degenerative Changes Left 
Shoulder 
Hypercholesterolemia 
No VA Entry 
Bilateral Pes Planus to include 
Right Great Toe Pain 
Right Foot Plantar Warts 

*No subsequent VARDs 
 
 
ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application 
regarding  the  significant  impairment  with  which  his  service-incurred  back  troubles  condition 
continues to burden him.  The Board wishes to clarify that it is subject to the same laws for 
disability entitlements as those under which the Disability Evaluation System (DES) operates.  
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.  That role and 
authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under 
a  different  set  of  laws  (Title  38,  United  States  Code).    The  Board  evaluates  DVA  evidence 
proximal to separation in arriving at its recommendations, but its authority resides in evaluating 
the  fairness  of  DES  fitness  decisions  and  rating  determinations  for  disability  at  the  time  of 
separation.  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  DVA,  however,  is 
empowered to compensate 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. 
 
Chronic LBP Secondary to Multilevel DDD Condition.  There were three evaluations in evidence, 
with  documentation  of additional  ratable  criteria,  which  the  Board  weighed  in  arriving  at  its 
rating recommendation; as summarized in the chart below. 
 

 

   2                                                           PD1200386 
 

VA C&P                                     

~5 Mo. Post-Sep 
80 (pain at 15) 

MEB NARSUM                   
~5 Mo. Pre-Sep 
33/24/27 (25) 
25/20/21 (20) 
19/21/21 (20) 
13/17/18 (15) 
41/46/42 (30) 
41/44/41 (30) 

140 

25 
25 
25 
25 
25 
205 

All ROMs w/pain; 1 of 8 
Waddell’s (+ axial load 
tenderness); absent right 
Achilles reflex 

40% (PEB 0%) 

Gait normal; tenderness; pain 
with straight leg raising 20⁰; 
weakened motion against 
strong resistance; No 
additional loss of motion due 
to repetitive motion.  “The 
neurologic exam shows 
sciatica.” (see text) 

10%-40% (VA 40%) 

 

Thoracolumbar ROM 
Flexion (90 Normal) 

Ext (0-30) 

R Lat Flex (0-30) 
L Lat Flex 0-30) 
R Rotation (0-30) 
L Rotation (0-30) 
Combined (240) 
Comment:  Spine 
formula notes 2 

(maximum VA normal) 

and 4 (rounding to 

nearest 5⁰), as well as 
DeLuca (repetition) 
considerations were 

applied 

§4.71a Rating 

MEB Consultation         
~6 Mo. Pre-Sep 

“Forward flexion to level 

of tibial tubercule” 

“LBP”; Slight antalgic 
gait favors right leg; 
different sensation to 

light touch in right 

lateral thigh/dorsum of 
foot; + FABER; SLR 70⁰ 
pain in low back; motor 
and reflex exams normal 

10%-20% 

 
The MEB consultation 6 months prior to separation noted pain at rest, with activities and that 
the  CI  is  “slow  on  start  up  but  then  becomes  more  fluid  as  he  begins  to  move.”    The  exam 
findings are summarized in the chart above, with no goniometric range-of-motion (ROMs) or 
indication of repetitive testing.  The diagnosis was failed back syndrome.  The MEB narrative 
summary (NARSUM) examination, performed 5 months prior to separation documented mild 
intermittent pain with prolonged standing or sitting and the primary limitation “is now with this 
ROM.”  The MEB NARSUM exam findings are summarized in the chart above, with repetitive 
ROMs  accomplished  by  the  examiner.    L-spine  radiographs  performed  in  September  2005 
showed "Status post prosthetic disc placement at the L4-L5, L5 transitional S1 and transitional 
S1-S2."    The  VA  Compensation  &  Pension  (C&P)  examination,  performed  5  months  after 
separation, noted that the CI needed to sit in a reclined position, and had an inability to stand 
or sit for more than 5 minutes and had a moderate to severe lower back functional impairment.  
The  C&P  exam  findings  are  in  the  chart  above.    There  were  no  incapacitating  events  that 
required bed rest.  There were no details concerning the neurologic exam “shows sciatica.”  The 
examiner’s  diagnosis  was  “Spinal  fusion  is  02-05  for  severe  stenosis,  disc  bulging,  and 
degenerative disease.  There is moderate to severe functional impairment of his lower back.” 
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
PEB  coded  5241  (Spinal  Fusion)  and  rated  at  0%  and  the  VA  coded  5010  (Arthritis,  due  to 
trauma) with 5242 Degenerative arthritis of the spine rated 40%.  The General Rating Formula 
for  Diseases  and  Injuries  of  the  Spine  considers  the  CI’s  pain  symptoms  “with  or  without 
symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine 
affected by residuals of injury or disease.”  The Board must decide which examination has the 
higher  probative  value.    The  consultation  exam  was  furthest  from  separation  and  was  not 
adequate for rating IAW the Veterans Administration Schedule for Rating Disabilities (VASRD).  
The  MEB  exam  was  the  most  detailed  exam  and  the  MEB  and  VA  examinations  are  both 
equidistant from the date of separation.  The MEB NARSUM exam met the 40% rating criteria 
for “forward flexion of the thoracolumbar spine 30 degrees or less.”  The VA exam was rated by 
the VA at 40%, without detailed rating decision explanation, and there were no details on the 
“weakened motion against strong resistance” examiner finding.  The Board determined that the 
MEB  exam  had  the  highest  probative  value  for  rating  at  separation.    After  due  deliberation, 
considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), §4.7 (higher of 
two evaluations), 4.40 (functional loss) and §4.45 (the joints) the Board recommends a disability 
rating of 40% for the chronic LBP secondary to multilevel DDD condition. 
 

   3                                                           PD1200386 
 

Contended PEB Conditions (Both Shoulders).  The Board’s main charge is to assess the fairness 
of  the  PEB’s  determination  that  the  intermittent  right  shoulder  pain/instability  and  chronic 
intermittent  left  shoulder  pain  conditions  were  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.    The  right  shoulder  condition  was  profiled  as  U2,  with  no  left  shoulder 
condition  profile,  and  restriction  of  no  push-ups  or  overhead  lifting.    The  commander’s 
statement  focused  on  the  low  back  condition.    Neither  shoulder  condition  failed  retention 
standards.  All were reviewed by the action officer and considered by the Board.  Each shoulder 
had undergone surgical repair with resolution of most symptoms:  The NARSUM indicated no 
significant limitations from either shoulder following surgery.  There was no performance based 
evidence  from  the  record  that  either  shoulder  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  the  contended  right  or  left  shoulder  conditions  and  so  no 
additional disability ratings are 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.  As discussed above, PEB 
reliance  on  AR  635-40  for  rating  the  low  back  condition  was  operant  in  this  case  and  the 
condition was adjudicated independently of that instruction by the Board.  In the matter of the 
chronic  LBP  secondary  to  multilevel  DDD  condition,  the  Board  unanimously  recommends  a 
disability rating of 40%, coded 5241 IAW VASRD §4.71a.  In the matter of the contended right 
and  left  shoulder  conditions,  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 recommends that the CI’s prior determination be modified as 
follows;  and,  that the discharge  with  severance pay  be  recharacterized to  reflect  permanent 
disability retirement, effective as of the date of his prior medical separation: 
 

VASRD CODE  RATING 

5241 

COMBINED 

40% 
40% 

Chronic LBP Secondary to Multilevel DDD 

UNFITTING CONDITION 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120424, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 

 

           XXXXXXXXXXXXXXX 
           President 
           Physical Disability Board of Review 

   4                                                           PD1200386 
 

 
 

 
 

 
 
 

a.  Providing a correction to the individual’s separation document showing that the 

SFMR-RB 
 
 
 
 
MEMORANDUM FOR Commander, US Army Physical Disability Agency  
(TAPD-ZB /  ), WRAMC, 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557 
 
 
SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation  
for XXXXXXXXXXXXXXXX, AR20120020914 (PD201200386) 
 
 
1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed 
recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) 
pertaining to the individual named in the subject line above to recharacterize the individual’s 
separation as a permanent disability retirement with the combined disability rating of 40% 
effective the date of the individual’s original medical separation for disability with severance 
pay.   
 
2.  I direct that all the Department of the Army records of the individual concerned be corrected 
accordingly no later than 120 days from the date of this memorandum: 
 
 
individual was separated by reason of permanent disability retirement effective the date of the 
original medical separation for disability with severance pay. 
 
 
effective the date of the original medical separation for disability with severance pay. 
 
 
c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will 
account for recoupment of severance pay, and payment of permanent retired pay at 40% 
effective the date of the original medical separation for disability with severance pay. 
 
 
medical TRICARE retiree options. 
 
3.  I request that a copy of the corrections and any related correspondence be provided to the 
individual concerned, counsel (if any), any Members of Congress who have shown interest, and 
to the Army Review Boards Agency with a copy of this memorandum without enclosures. 
 
BY ORDER OF THE SECRETARY OF THE ARMY: 
 
 
 
 
Encl 
 
 
 
CF:  
(  ) DoD PDBR 
(  ) DVA 
 

b.  Providing orders showing that the individual was retired with permanent disability 

d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and 

 
 
 

     XXXXXXXXXXXXXXXX 
     Deputy Assistant Secretary 
         (Army Review Boards) 

 
 
 

 
 
 

 
 
 

 
 
 

   5                                                           PD1200386