RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  MARINE CORPS 
SEPARATION DATE:  20030731 

 
NAME:  XX 
CASE NUMBER:  PD1200530 
BOARD DATE:  20130110 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty  SSgt/E-6  (3381/Food  Service  Specialist),  medically 
separated  for  a  low  back  condition.   The  CI did  not  respond adequately  to  surgical  and  post 
rehabilitative treatment to fulfill the physical demands of her Military Occupational Specialty 
(MOS), meet worldwide deployment standards or satisfy physical fitness standards.  She was 
placed on limited duty and referred for a Medical Evaluation Board (MEB).   Degeneration of 
lumbar  or  lumbosacral  intervertebral  disc  and  lumbago  were  forwarded  to  the  Physical 
Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions appeared on the MEB’s 
submission.    The  PEB  adjudicated  the  low  back  condition  as  unfitting,  rated  20%,  with 
application  of  the  Veterans  Affairs  Schedule  for  Rating  Disabilities  (VASRD).    The  remaining 
condition was determined to be category II (contributing to unfit condition).  The CI made no 
appeals, and was medically separated with a 20% disability rating. 
 
 
CI CONTENTION:  The CI elaborated no specific contention in her application. 
 
 
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 condition 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: 
 

Service IPEB – Dated 20030529 
Condition 
Lumbar DDD 
Low Back Pain 

Code 
5295 
Cat II 

Rating 
20% 

No Additional MEB/PEB Entries 

L5-S1 

Code 
5242* 
7805 

Rating 
40%* 
0% 

VA (~3 Mos. Post-Separation) – All Effective Date 20030801 
Condition 
S/P 
Diskectomy 
w/Residual Arthritis 
Surgical Scar Lower Back 
Radiculopathy LLE associated w/ 
S/P  Diskectomy 
L5-S1  w/ 
Residual Arthritis 
Radiculopathy of RLE 
Gastric Ulcer 
Endometriosis 
0% X 1 / Not Service-Connected x 3 
Combined: 60% 

8520 
7304-7346 
7629 

10%* 

10%* 
10% 
10% 

8520 

Exam 
20050519 
20031021 

20050519 

20050519 
20031021 
20031021 
20031021 

Combined:  20% 
*Original VARD rated 20% based on exam 20031021 then rating increased to 40% via an appeals and based on a 20050519 
exam effective DOS.  Radiculopathy was not on original VARD for RLE and LLE was added based on later exam effective DOS. 
 
 
ANALYSIS  SUMMARY:    While  the  Disability  Evaluation  System  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 Department of Veterans Affairs (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.  The 
Board’s  operative  instruction,  DoDI  6040.44,  specifies  a  12-month  interval  for  special 
consideration  to  DVA  findings.    This  does  not  mean  that  the  later  DVA  evidence  was 
disregarded,  but  the  Board’s  recommendations  are  directed  to  the  severity  and  fitness 
implications of conditions at the time of separation. 
 
Low Back Condition.  The CI injured her low back while practicing the fireman’s carry.  She was 
treated  conservatively  for  musculoskeletal  back  pain  with  anti-inflammatory  and  muscle 
relaxants medications and physical therapy (PT) with significant improvement.  Six months later 
she  reinjured  her  back  after  doing  a  physical  training  test  with  new  intermittent  radicular 
symptoms  of  tingling  and  numbness  in  the  left  leg.    The  CI  was  evaluated  and  treated 
conservatively by orthopedics for a magnetic resonance imaging (MRI) confirmed L5-S1 central 
disk  protrusion  (HNP).    In  September  2000,  she  underwent  a  microdiscectomy  of  the  L5-S1 
without complication and was returned to duty, 7 months later, in April 2001 with resolution of 
her symptoms.  However, due to a new onset of persistent pain and radicular symptoms she 
underwent  a  second  surgical  procedure  in  November  2001  to  include;  a  L5-S1  fusion  and 
fixation, removal of scar tissue from the prior surgery and removal of S1 epidural scar tissue.  
She had a post operative complication of left leg weakness that gradually improved while in the 
hospital,  which  was  documented  as  full  strength  2  weeks  after  surgery.    4  weeks  into 
rehabilitation she had a fall that aggravated her back pain that resurfaced radicular symptoms 
of pain, numbness and weakness to her left leg.  X-rays revealed that the hardware and fusion 
bone  were  in  place.    She  was  seen  3  months  later  with  the  same  symptoms  as  prior  to  her 
second surgery.  The neurosurgeon diagnosed likely failed fusion, due to persistent symptoms, 
and  documented  an  exam  consistent  with  mild  diffuse  weakness;  especially  at  left  foot 
dorsiflexion.  In June 2002, she underwent her third and final back surgery for a failed fusion 
with  a  redo  of  the  L5-S1  fusion  with  extension  of  fusion  and  fixation  to  S2  without 
complications.  Three months post surgery, she reported intermittent worsening low back pain, 
especially  when  lying  down  and  sitting,  but  an  improvement  in  the  numbness  and  tingling.  
Neurosurgery  referred  her  to  pain  management  and  mental  health  clinics,  requesting  other 
treatment modalities for her persistent pain reported as 6-8 of 10 in intensity post surgery.  Her 
pain decreased after epidural steroid injections down to 4-6 of 10 with decreased numbness 
and  paresthesias;  she  reported  a  60%  improvement  from  baseline.    The  non-medical 
assessment corroborated her low back and leg pain and documented her restriction to dining 
facility  administrative  duties  and  inability  to  physically  supervise  other  cooks  in  garrison.  
During  the  24  months  period  prior  to  separation,  the  CI  visited  neurosurgery  18  times,  pain 
management  at  5  times,  received  2  documented  sets  of  epidural  steroid  injections;  and  11 
other  outpatient  clinic,  ER  or  hospitization  visits  to  treat  her  low  back  and  radicular  pain 
conditions. 
 
Seven months after separation the evidence reflected:  her continued need to seek care for her 
back  pain;  a  daily  requirement  for  Neurontin  pain  modifying  medication  and  an  intermittent 
muscle  relaxant;  she  attended  PT;  had  pain  at  4-5  of  10;  and  a  bilateral  antalgic  gait.    In 
November 2005, 28 months post separation she was implanted with an intrathecal pain pump, 
which  provided  pain  relief,  but  was  removed  due  to  complications  and  in  August  2006,  37 
months post separation, she underwent a permanent dorsal column stimulator, but there was 
no evidence detailing pain relief. 
 
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 

2                                                           P1200530 
 

 

Thoracolumbar ROM 
Degrees 
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) 

MEB ~5 Mo. Pre-Sep 
Very limited 
Very limited 
-- 
-- 
-- 
-- 
-- 

Comment 

 

VA C&P ~3 Mo. Post-Sep 
60 
0 
20 
20 
30 
30 
160 
All  movement  slow  and 
could 
guarded; 
not 
perform 
repetitions 
adequately due to pain 
20% 

§4.71a Rating 

20% vs. 40% 

 
The MEB physical exam, completed by the treating neurosurgeon, demonstrated diffuse give 
away weakness in both lower extremities, 4 of 5 strength due to pain in her low back, normal 
knee and ankle reflexes and decreased sensation along the medial side of her left foot.  X-rays 
revealed  a  good  fusion  with  hardware  in  place  from  L5-S2.    The  final  diagnosis  was  lumbar 
degenerative  disc  disease  (DDD)  and  low  back  pain.    At  the  VA  Compensation  and  Pension 
(C&P) exam approximately 3 months after separation, the CI:  appeared in acute distress; had a 
slow unassisted gait; spine showed no postural abnormalities or deformities such as kyphosis or 
scoliosis;  no  spasm  of  paravertebral  muscles  in  lumbar  region;  significant  tenderness  to 
percussion over lumbar spine; had to roll to her side to get on and off the exam table; ROMs 
noted in chart above with all movements performed slowly with guarding and exacerbation on 
forward  flexion  and  attempted  extension  of  lumbar  spine;  pain  prevented  any  attempt  for 
repetitive motions; positive for bilateral straight leg raises (neurologic sign for disc disease); and 
MRI showed degenerative changes. 
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
Board  utilized  2002  VASRD  standards  for  the  spine,  which  were  in  effect  at  the  time  of 
separation.  For the reader’s convenience, the 2002 rating codes under discussion in this case 

are excerpted below.   

 

 

5292 Spine, limitation of motion of, lumbar: 

Severe ………………………………………………………..……….………….......................... 40 
Moderate …………………………………….……………….…….…………...……………………. 20 
Slight ………………………………………………………..…………………..……………………….. 10 

5293 Intervertebral disc syndrome (to include incapacitating episodes): 
Pronounced; with persistent symptoms compatible with: sciatic 

 neuropathy with characteristic pain and demonstrable muscle 
 spasm, absent ankle jerk, or other neurological findings appropriate 
 to site of diseased disc, little intermittent relief ………………..….……....… 60 
Severe; recurring attacks, with intermittent relief ……………..…….….…..……. 40 
Moderate; recurring attacks ……………………………………………............….... ..... 20 
Mild ……………………………………………………………..…………….….………………………. 10 
Postoperative, cured ……………………………………………..……………....……………… 0 
 

 
5295 Lumbosacral strain: 

Severe; with listing of whole' spine to opposite side, positive 

Goldthwaite's sign, marked limitation of forward bending in 

3                                                           P1200530 
 

 standing position, loss of lateral motion with osteo-arthritic 
 changes, or narrowing or irregularity of joint space, or some 
 of the above with abnormal mobility on forced motion …………………. 40 

With muscle spasm on extreme forward bending, loss of lateral spine  

 motion, unilateral, in standing' position ……………...…………..…...….…… 20 
With characteristic pain on motion ………………………………..……...…….………. 10 
                                   With slight subjective symptoms only ……………………...…………………………… 0 
 
The  Board  directs  its  attention  to  the  coding  and  rating  recommendation  for  the  low  back 
condition.  The PEB assigned a 20% rating under the 5295 code of the 2002 VASRD.  The 20% 
rating  for  5295  requires  ‘muscle  spasm  on  extreme  forward  bending,  loss  of  lateral  spine 
motion, unilateral, in standing position’.  The Board agreed the MEB exam was silent to lateral 
bending,  spasm,  posture  or  gait  and  likely  assigned  the  20%  for the  very  limited  flexion  and 
extension exam without goniometric detail.  The Board carefully reviewed the service file for 
corroborating ROM evidence in the 12-month period prior to separation and did not find any.  
The Board agreed the CI’s condition did not meet the code 5295 severe threshold at the VA 
examination  3  months  as  well  as  22  months  post-separation  with  either  the  flexion  or 
combined thoracolumbar exam.  A lengthy deliberation ensued as to how to best capture the 
disability  in  this  case  under  the  old  spine  rules.    The  Board  considered  the  code  5292  and 
agreed the very limited flexion exam could meet either the moderate or severe criteria under 
this code.  The VA originally assigned a 20% for limited forward flexion of 60 degrees under the 
new  VASRD  code  5242(Degenerative  arthritis  of  the  spine).    However,  the  Decision  Review 
Officer (DRO), 22 months later, changed the code to the more clinically appropriate code 5241 
(spinal fusion) and assigned a higher rating, 40%, for severe functional impairment IAW VASRD 
§4.10, due to pain despite having a measured flexion exam meeting the 20% rating in the 22-
month exam.  Therefore the next challenge before the Board is to consider the evidence for the 
higher  rating  with;  VASRD  §4.10,  VASRD  §4.40  (Functional  loss),  VASRD  §4.45  (DeLuca),  or 
under the code 5293 (Intervetebral disc syndrome).  None of the exams documented additional 
ROM  impairment  to  meet  VASRD  §4.45,  however  the  Board  acknowledges  this  could  not  be 
tested due to the inability to do repetitive motion.  The evidence clinically supports; residual 
motor weakness with left foot dorsiflexion, sensory deficits consistent with an S1 radiculopathy 
and  moderate  to  moderate-severe  pain  impairment  for  which  the  CI  continued  to  seek 
alternative treatment modalities after separation to mitigate her pain.  Prior to separation she 
sought  care  for  her  back  pain  36  times  including  neurosurgery,  pain  management,  mental 
health and primary care specialties.  The Board also acknowledges her ability to do only desk 
administrative  duties  at  the  time  of  separation;  which  demonstrates  her  physical  functional 
limitations.  Therefore, the Board agreed based on all evidence and associated conclusions just 
elaborated that a higher rating is supported due to severe functional impairment IAW VASRD 
§4.10.  The Board deliberated the higher rating with either the 5292 code for severe limitation 
of  motion  or  the  5293  code  for  severe  pain  with  intermittent  relief.    The  Board  agreed  to 
recommend the higher rating under the more objective 5293 code IAW VASRD §4.7.  After due 
deliberation,  considering  all  of  the  evidence  and  mindful  of  VASRD  §4.3  (Resolution  of 
reasonable doubt), the Board majority recommends a disability rating of 40% for the low back 
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  low  back  condition,  the  Board,  by  a  vote  of  2:1,  
recommends a disability rating of 40%, coded 5293 IAW VASRD §4.71a.  The single voter for 

4                                                           P1200530 
 

dissent (who recommended no recharacterization) submitted the appended minority opinion. 
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 her prior medical separation:   
 

UNFITTING CONDITION 
Lumbar DDD 

VASRD CODE  RATING 
5293 
COMBINED 

40% 
40% 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120602, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 
 

 

           xx 
           Director 
           Physical Disability Board of Review 

5                                                           P1200530 
 

MINORITY OPINION: 
 
The Minority concluded that the 20% rating adjudicated by the PEB was appropriate due to the 
documented  evidence  that  best  described  the  medical  condition  of  the  CI  on  the  date  of 
separation.  There is no evidence presented in the majority recommendation that introduces 
reasonable doubt regarding the accuracy and fairness of the PEB rating.  On the contrary, there 
is documented evidence to support the original 20%.  The CI had numerous reported sources of 
pain, including pelvic, lower extremity, lumbar, gastrointestinal, and abdominal, among others.  
For the back condition rated as unfitting, only lumbar and lower extremity can be connected.  
When able, pain rating scales must be parsed to decide which pain the CI was reporting if the 
evidence is to be considered probative.  It is acknowledged that the CI’s condition and pain did 
and will continue to wax and wane.  The majority cites 36 visits to various clinics in 2 years; this 
in no way is indicative of severity.  There is nothing presented in the majority opinion, other 
than unsubstantiated conjecture, that reasonably leads towards rating higher than 20%.  
 
A  month  prior  to  separation  (June  2003)  a  pain  management  cinic  reported  positive 
improvement,  decreased  numbness,  paresthesia  60%  improvement  from  baseline,  and  good 
relief from epidural steroid injection. 
 
The MEB exam (6 months prior to separation) is uninformative regarding ROM for rating.  The 
majority’s  assumption  that  “very  limited”  equates  to  “severe”  limitation  of  motion  is 
speculative and not based on significantly probative evidence.  That exam indicates 4/5 motor 

strength (“give away” weakness is an equivocal sign of diminished strength), which would lead 

any  rating  away  from  “severe.”  The  first  VA  exam  (3  months  after  separation)  rated  at  20% 
based  upon  the  new  spine  rules  in  effect  and  is  supported  by  evidence  (goniometric 
measurements)  in  the  corresponding  C&P  exam.    Whereas  the  majority  above  incorrectly 
quotes that October, 2003 C&P exam reporting the CI in acute distress, in actuality the exam 
reads “well appearing young woman in on acute distress” (emphasis added), an almost certain 
misspelling  of  “no”  as  “on.”    The  sentence  unquestionably  should  be  read  “Well  appearing 
woman in no acute distress.”  For old spine rules, the reported flexion of 60 degrees and total 
ROM of 160 degrees would lead one to more reasonably characterize the ROM limitation as 
“moderate” (i.e., rated 20%); characterizing it as “severe” is not a reasonable conclusion.  That 
same exam reported no postural abnormalities and lower extremity distal muscle strength 5/5; 
it stated “Low back pain radiates down her left lower extremity from time to time” and “gait 
was slow, but normal.”  No spasm was reported and no evidence in that most proximate, most 
informative exam could reasonably lead to a rating of “severe” under any of the old spine rules.  
In fact, the rating from that exam was an accurate, well-supported 20%. 
 
A VA DRO increased the lumbar spine rating to 40% based upon that C&P exam, retroactive to 
the  day  after  separation.    The  evidence  section  of  the  VA  decision  does  not  support  that 
increase; it cites functional impairment despite the fact no functional impairment is mentioned 
in  the  associated  C&P  exam  cited  as  evidence  in  the  VARD  (acknowledged  by  the  majority 
during board deliberation).  In fact, functional impairment is contradicted in that C&P exam.   
 
As documented, the CI was able at separation to perform administrative duties, which indicates 
employability in the average civilian job up to the date of separation.  The C&P exam in May 
2005  documented  “[CI] is  in  a  work  study  program  with  no  limitation  at  this  time.”    At  that 
same exam, it was noted “…no bowel or bladder incontinence. No brace, no cane or crutch. No 
physician-directed bed rest.”  As the Board noted, unemployability was granted by the VA as of 
October 2005.  The majority conflates the DRO decision, incorrectly based upon non-existent 
evidence,  to  produce  a  claim  of  functional  impairment  for  consideration.    The  evidence  of 
record, in fact, directly refutes that interpretation and the functional impairment invoked for 
the  VA  rating  increase.    So  any  reference  to  functional  impairment,  for  coding  purposes  or 
otherwise, is also inaccurate. 

6                                                           P1200530 
 

 
The minority recognizes the dedicated service to the nation by the CI as well as the pain and 
discomfort  brought  on  by  this  unfitting  condition.    Neither  the  evidence  of  record  nor  the 
information as presented in the report of the majority, however, justifies reasonable doubt that 
the PEB made an accurate and fair rating of 20% disability based upon the VASRD rules in effect 
and the medical condition at the time of separation.   
 
 
RECOMMENDATION:    The  Board  minority  recommends  no  recharacterization  of  the  PEB 
adjudicated disability and separation determination, as follows: 
 

VASRD CODE  RATING 
5295 
COMBINED 

20% 
20% 

UNFITTING CONDITION 
Lumbar DDD 

 
 

 

7                                                           P1200530 
 

      

             

                                       

b. former USMC:  Disability retirement with a final disability rating of 30 percent 

a. former USMC:  Disability separation with a final disability rating of ten (10) percent 

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS 
 
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS           
 
Ref:   (a) DoDI 6040.44 
          (b) PDBR ltr dtd 11 Feb 13 ICO 
          (c) PDBR ltr dtd 7 Feb 13 ICO   
          (d) PDBR ltr dtd 27 Feb 13 ICO   
          (e) PDBR ltr dtd 7 Mar 13 ICO   
                                         
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of 
Review set forth in references (b) through (d). 
 
2.  The official records of the following individuals are to be corrected to reflect the stated 
disposition: 
 
 
(increased from zero percent) with entitlement to disability severance pay effective 5 April 2002.  
 
 
(increased from 20 percent) with retroactive placement on the Permanent Disability Retired List 
effective 31 January 2002. 
 
 
c.  former USMC:  Disability separation with a final disability rating of ten (10) percent 
(increased from 0 percent) with entitlement to disability severance pay effective 15 July 2003. 
 
 
(increased from 20 percent) with retroactive placement on the Permanent Disability Retired List 
effective 31 July 2003. 
 
3.  Please ensure all necessary actions are taken, included the recoupment of disability severance 
pay if warranted, to implement these decisions and that subject members are notified once those 
actions are completed. 
 
 
 
 
 
 
 

  xx 
  Assistant General Counsel 
     (Manpower & Reserve Affairs) 

d. former USMC:  Disability separation with a final disability rating of 40 percent 

 

 
 
 

 
 
 

 
 
 

 
 
 

 
 
 

8                                                           P1200530