RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  ARMY 
SEPARATION DATE:  20030829 

 
NAME:  XXXXXXXXXXXXXX 
CASE NUMBER:  PD1200505 
BOARD DATE:  20130111 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  a  Chief  Warrant  Officer-2  (153D0/Black  Hawk  Pilot),  medically 
separated  for  chronic  back  pain  due  to  lumbar  degenerative  disc  disease  (with  scoliosis.  
Despite conservative management, the CI did not improve adequately with treatment to meet 
the  physical  requirements  of  his  Military  Occupational  Specialty  or  satisfy  physical  fitness 
standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board 
(MEB) which found the two back conditions medically unacceptable.  The MEB forwarded no 
other  conditions  for  Physical  Evaluation  Board  (PEB)  adjudication.    The  PEB  adjudicated  the 
chronic  back  pain  condition  as  unfitting,  rated  10%  with  application  of  the  Department  of 
Defense Instruction (DoDI) 1332.39, Para E2.A1.1.20.2, page 2-1-8, and Army regulation 635-40, 
Appendix B-39.  The CI  made no appeals, and was medically separated with a 10% disability 
rating.   
 
 
CI CONTENTION:  “Back issues were never addressed or identified while enlisted in Air Force 
and later in Army.  Scoliosis and Degenerative Disc Disease as well as duty related herniated 
disks were not treated.  Records indicate condition.”   
 
 
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:   
 

↓No Additional MEB/PEB Entries↓ 
Combined:  10% 
*CI verbally withdrew his VA claim; however, did not do the withdrawal in writing.  Therefore, the VA rated.  NSC upheld on the 
20091124 review 
 
 
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, 

Service IPEB – Dated 20030717 
Condition 
Chronic Back Pain 

Code 
5299-5295 

Rating 
10% 

VA  
Condition 
Herniated  Discs  L4,  L5  with 
Arthritis and Scoliosis 
Not Service-Connected x 2 
Combined: No rating assigned 

Rating 
*NSC  

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 Back Pain Condition.  The CI was first documented to incidentally have scoliosis on a 
13 July 1992 chest X-ray.  There is a record in evidence for low back pain (LBP) on 1 October 
1996 while he was in the Air Force.  The next documented visit for low back pain (LBP) was on 
13  April  2001  when  he  was  seen  for  the  insidious  onset  of  LBP  and  thought  to  have  a 
radiculopathy of the right lower extremity (RLE).  He was referred to physical therapy (PT), but 
had persistent symptoms.  He was seen in orthopedics on 13 June 2001 and was noted to have 
disc  extrusion  at  L4-5  and  protrusion  at  L5-S1  with  a  positive  straight  leg  raise  (SLR),  a 
provocative test of nerve root irritation.  On 10 July 2001, he had an epidural steroid injection 
with good relief of symptoms and was returned to full duty including flying status as a pilot on 
17 February 2001.  His pain recurred.  A 12 November 2002 neurology examination for vertigo 
documented normal sensation, strength and reflexes for the lower extremities.  He was again 
seen  in  orthopedics  on 30  January  2003  and  recommend  for  an  MEB.    A  scoliosis  survey  on 
30 January 2003 showed 27 degrees of dextroscoliosis.  The CI continued PT while in the DES 
process.    At  the  MEB  examination  on  12  June  2003,  the  CI  reported  continued  LBP.    The 
examiner noted that the lumbosacral spine was tender, but that SLR, sensation, strength and 
reflexes were normal.  Range-of-motion (ROM) was full but painful, heel to toe walk was intact 
and signs of non-organic pain absent, scoliosis was noted.  The narrative summary was dictated 
on 8 July 2003, 6 weeks prior to separation.  It noted that the CI had a 10 year history of LBP, 
but  that  his  symptoms  were  exacerbated  in  April  2001  and  again  in  January  2003.    He  was 
unable  to  participate  in  flight  operations  or  complete  a  physical  fitness  test.    He  denied 
radicular symptoms.  Incapacitating episodes were not documented.  A VA Compensation and 
Pension examination was not accomplished.   
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
Board noted that the old spine rules were in effect at the time of separation.  The PEB rated the 
back condition at 10% and coded it 5299-5295, analogous to lumbar strain.  The VA determined 
the back condition to be not service-connected based on the service treatment records.  The 
Board  noted  that  the  examination  was  essentially  normal  other  than  tenderness  over  the 
lumbar spine and history of a positive SLR, normal at separation.  Scoliosis was documented as 
early as 1992; 11 years prior to separation and was determined to be a congenital condition.  
The  Board  considered  the  other  coding  options  available  for  the  back  condition,  but  none 
afforded  a  higher  rating  awarded  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 back pain 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.  As discussed above, PEB 
reliance on DoDI 1332.39 and AR 635-40 for rating the 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  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 
Chronic Back Pain, Due to Lumbar Degenerative Disc Disease… 

VASRD CODE  RATING 
5299-5295 
COMBINED 

10% 
10% 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120604, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 
 

 

           XXXXXXXXXXXXXXXX, DAF 
           Director 
           Physical Disability Board of Review 

 
 
 

SFMR-RB 
 
 
 
 
MEMORANDUM FOR Commander, US Army Physical Disability Agency  
(TAPD-ZB / XXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557 
 
SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20130003082 (PD201200505) 
 
 
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 
 
 
 

     XXXXXXXXXXXXXXXXXXXX 
     Deputy Assistant Secretary 
         (Army Review Boards)