RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

SEPARATION DATE:  20020701 

 
NAME:  XXXXXXXXXXXXX                                                            BRANCH OF SERVICE:  ARMY 
CASE NUMBER:  PD1200533 
BOARD DATE:  20121108    
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty  SSG/E-6  (67S30/OH-58D  Helicopter  Repairer) 
medically  separated  for  chronic  low  back  pain  (LBP)  secondary  to  degenerative  disc  disease 
(DDD) identified on magnetic resonance imaging (MRI), with protrusions, herniations at the L2-
L3, L3-L4 level without neural impingement and degenerative arthritis right hip (X-ray evidence) 
without loss of range-of-motion (ROM), condition limits ambulatory abilities.  The CI developed 
LBP  during  physical  training  runs  in  1995.    He  continued  with  flare-ups  of  LBP  and  then  in 
January 2002 he began having right hip pain due to early arthritis.  Despite the use of a TENS 
unit, medications, physical therapy (PT), chiropractor care and orthopedics consults the CI failed 
to  meet  the  physical  requirements  of  his  Military  Occupational  Specialty  (MOS)  or  satisfy 
physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical 
Evaluation Board (MEB).  The MEB forwarded DDD and degenerative arthritis (R) hip on the DA 
Form 3947 to the Physical Evaluation Board (PEB).  Recurrent (L) shoulder tendinitis, recurrent 
ankle sprains, benign essential tremor, and allergic rhinitis conditions, identified in the rating 
chart below, were also identified and forwarded by the MEB as meeting retention standards.  
The  PEB  adjudicated  the  chronic  and  degenerative  arthritis  right  hip  conditions  as  unfitting, 
rated  10%  and  0%,  with  application  of  the  Veteran’s  Affairs  Schedule  for  Rating  Disabilities 
(VASRD).   The CI made no appeals, and was medically separated with a 10% disability rating.   
 
 
CI  CONTENTION:    “Justice,  right  now  I  have  a  70%  services  connected  disability  rating  and 
getting worse, just Justice”.   
 
 
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  recurrent  (L)  shoulder  tendinitis, 
recurrent ankle sprains, benign essential tremor, and allergic rhinitis are adjudged as requested 
for consideration and meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are 
addressed  below,  in  addition  to  a  review  of  the  ratings  for  the  unfitting  chronic  LBP  and 
degenerative  arthritis  right  hip  conditions.    The  remaining  conditions  rated  by  the  VA  at 
separation and listed on the DD Form 294 are not within the Board’s purview.  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:   
 

Condition 

Chronic LBP 
Secondary to DDD…  
Degenerative 
Arthritis Right Hip…  
Recurrent (L) 
shoulder tendinitis 
Recurrent ankle 
sprains 
Benign essential 
tremor 
Allergic rhinitis 

Service IPEB – Dated 20020514 

VA (~1 Mo. Post-Separation) – All Effective Date 20020722 

Code 
5295 

Rating 
10% 

5003 

0% 

Not Unfitting 

Not Unfitting 

Not Unfitting 
Not Unfitting 

Condition 

Disc Desiccation and Herniated 
Nucleus Pulposus 
Mild Arthritis of The Right Hip 
Mild Degenerative Arthritis of 
The Left Shoulder 
Right Ankle Pain 

Benign Intention Tremor 
Allergic rhinitis 
Acne Keloidalis Nuchae 
Tinnitus 

Code 

5293-5292 

5252-5003 

5201-5003 

5299-5271 

8099-8004 

6522 

7899-7828 

Rating 
10%* 

Exam 
STR 

10% 

10% 

NSC 

0%* 
NSC 
0%* 
0% 

20021016 

STR 

 

20021213 

20021126 
20021010 

 

 

↓No Additional MEB/PEB Entries↓ 

Combined:  10% 

6260 
Not Service-Connected x 8 

Combined:  30%* 

in  DoDI  6044.40,  however,  resides 

* Increased rating of HNP 5293-5292 to 20%, Tremor to 30%, and Acne to 10%; and added Lumbar Radiculopathy at 10%; all 
effective 20061109 (combined 60%).  Tinnitus increased to 10% effective 20090108 (combined 70%)   
 
 
ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application 
regarding  the  significant  impairment  with  which  his  service-incurred  condition  continues  to 
burden him.  It is a fact, however, 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.  This role and authority is granted 
by  Congress to the  Department of Veterans’  Affairs  (DVA).   The  Board utilizes  DVA  evidence 
proximal  to  separation  in  arriving  at  its  recommendations;  and,  DoDI  6040.44  defines  a  12-
month interval for special consideration to post-separation evidence.  The Board’s authority as 
defined 
in  evaluating  the  fairness  of  DES  fitness 
determinations  and  rating  decisions  for  disability  at  the  time  of  separation.    Post-separation 
evidence therefore is probative only to the extent that it reasonably reflects the disability and 
fitness implications at the time of separation.   
 
Chronic LBP Condition:  The chronic back condition was rated IAW the 2002 VASRD standards 
which  are  no  longer  in  effect.    The  2002  Veterans’  Administration  Schedule  for  Rating 
Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time 
of  separation,  were  changed  in  September  2002  for  VASRD  code  5293  (intervertebral  disc 
syndrome)  criteria,  and  then  changed  to  the  current  §4.71a  rating  standards  in  September 
2003.    The  2002  standards  for  rating  based  on ROM  impairment  were  subject  to  the  rater’s 
opinion regarding degree of severity, whereas the current standards specify rating thresholds in 
degrees  of  ROM  impairment.    The  pertinent  5293  code  criteria  also  specifically  included 
symptoms compatible with sciatica which were present in this case.  (NOTE:  The current VASRD 
general spine formula does not include similar 5293 criteria).  For the reader’s convenience, the 
2001 rating codes under discussion in this case are excerpted below.   
 

5292 Spine, limitation of motion of, lumbar: 

5293 Intervertebral disc syndrome: 

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

   2                                                           PD1200533 
 

Thoracolumbar ROM 
Flexion (90⁰ Normal) 

Ext (0-30) 

       R Lat Flex (0-30) 
       L Lat Flex 0-30) 

R Rotation (0-30) 
L Rotation (0-30) 
Combined (240⁰) 

 

90⁰ 
20⁰ 
 

 

80⁰ 
25⁰ 
25⁰ 
25⁰ 
30⁰ 
30⁰ 
215⁰ 

 

75⁰ 
35⁰ 
40⁰ 
40⁰ 
35⁰ 
35⁰ 
260⁰ 

Postoperative, cured.......................................... 0 

5294 Sacro-iliac injury and weakness: 
5295 Lumbosacral strain: 

Severe; with listing of whole spine to opposite side, positive  
Goldthwaite's sign, marked limitation of forward bending in 
standing position, loss of lateral motion with osteoarthritic 
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 20 
spine motion, unilateral, in standing position............... 20 
With characteristic pain on motion............................ 10 
With slight subjective symptoms only.......................... 0 

 
There  were  three  ROM  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.   
 

MEB ~4 Mos. Pre-Sep 

MEB ~2 Mos. Pre-Sep 

VA C&P ~3 Mos. Post-Sep 

Comment:   

“LBP”; Tenderness to 
palpation L2-S1 mid 

spine; - SLR; motor 5/5; 

sensory L1-S1 nml 

§4.71a Rating 

10% 

“Pain with bending”; + 
Tenderness right side at 

lumbosacral junction; straight 

leg raise increase in LBP; 

“slight decrease sensation R 

side in distro of L-5” 
10%-20% (MEB 10%) 

“occasional moderate 

pain”; no TTP; motor intact 

10% (VA 10%)  

 
The L/S spine MRI performed in January 2002 demonstrated herniated discs L2-3 and L3-4.  The 
commander’s statement indicated that the CI’s LBP limited his mobility and his ROM to perform 
his MOS.  The first MEB examination 4 months prior to separation noted that the CI had both 
orthopedic  and  chiropractic  evaluations  without  significant  improvement  in  chronic  LBP 
symptoms.  Exam findings are in the chart above.  The second MEB examination 2 months prior 
to  separation  indicated  that  the  CI  was  unable  to  walk  more  than  30  minutes  due  to 
aggravation  of  pain  in  his  back.    The  CI  would  get  pain  with  running  and  had  an  inability  to 
perform  repeated  bending  and  running.    The  exam  findings  are  in  the  chart  above,  and 
indicated sensory deficit in the right lower extremity.  Electrophysiological testing (EMG/NCV) 
was accomplished within 3 weeks after the narrative summary (NARSUM) and demonstrated 
right L5 and S1 radiculopathy.  The service treatment record (STR) documented numerous visits 
for the low back condition including one emergency room visit with “extremely limited ROM 
and  decreased  strength”  within the  year prior to  separation.    Three  additional  ER  treatment 
visits were prior to the 12-month pre-separation timeframe.   
 
The  initial  VA  Compensation  &  Pension  (C&P)  examination  performed  3  months  after 
separation noted  more than  20  sick  call  visits  in  the  STR for  severe  LBP  flare-ups  along  with 
three acute bouts of LBP that caused functional impairment.  The examiner also indicated that 
the CI’s daily pain prevented him from performing running, mechanics or heavy lifting.  The C&P 
exam  findings  are  in  the  chart  above.    VA  records  over  4  years  remote  from  separation 
indicated  worsening  of  the  back  condition  with  a  documented  lumbar  radiculopathy  at  that 
time.   
 

   3                                                           PD1200533 
 

The Board directs attention to its rating recommendation based on the above evidence.  The 
PEB coded the chronic LBP condition as 5295 (Lumbosacral strain: With characteristic pain on 
motion) rated at 10%.  The PEB disability description indicated “no radiculopathy”; however, 
the NARSUM documented a sensory deficit with an objective EMG/NCV radiculopathy prior to 
the  PEB.    The  Board  notes  that  at  the  time  of  the  NARSUM  and  MEB,  the  EMG  results 
demonstrating a radiculopathy, had not been performed  and were therefore not part of the 
NARSUM.  The VA coded the back condition as 5292 (Spine, limitation of motion of, lumbar: 
Slight) with 5293 (Intervertebral disc syndrome: Mild) rated at 10%.  However, of special note, 
the  initial  VA  rating  narrative  (February  2003)  cited  the  updated  5293  spine  criteria 
(incapacitation)  in  their  rating  decision,  while  the  older  5293  spine  criteria  (including  sciatic 
symptoms as noted above) were in effect the date of the CI’s separation.   
 
The  Board  considered  the  tenants  of  the  older  VASRD  5293,  Intervertebral  disc  syndrome, 
criteria which included radicular pain symptoms and the STR that indicated radicular symptoms, 
as  well  as  the  provisions  of  5292  (Spine,  limitation  of  motion  of,  lumbar).    There  was  ample 
documentation  of  limited  mobility  and  functional  loss  (IAW  VASRD  §4.40)  due  to  LBP  in  the 
commander’s statement interfering with the CI’s ability to perform his MOS.  Board precedent 
is  that  a  functional  impairment  tied  to  fitness  is  required  to  support  a  recommendation  for 
addition of a peripheral nerve rating at separation:  However, the spine criteria in effect in 2001 
includes  specific  VASRF  coding  (5293)  that  includes  radicular  pain  as  a  rating  element.    The 
Board  deliberated  regarding  the  CI’s  disability  picture  with  limited  ROM  and  radicular 
symptoms and considered if the CI was closer to the moderate (20%) rating picture envisioned 
under  the  older  5293  coding  when  also  considering  the  underlying  spine  pathology,  limited 
motion, and functional loss noted in the treatment record.   
 
After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable 
doubt), the Board recommends a disability rating of 20% for the chronic LBP condition coded 
5292-5293 which includes limited motion, pain and sensory loss in the right lower extremity.   
 
Degenerative  Arthritis  Right  Hip:    There  were  three  ROM  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.   
 

MEB ~4 Mos. Pre-Sep 

90⁰ with pain 

110⁰ 

MEB ~2 Mos. Pre-Sep 

VA C&P ~3 Mos. Post-Sep 

50⁰ (45⁰) 

125⁰ 
25⁰ 

40⁰ 
25⁰ 

Normal gait; “occasional 

moderate pain”; “associated 
with limitation of motion”; no 
weakness of legs; motor wnl 

Right Hip 

Flexion (0-125⁰) 
Extension (0-20⁰) 

External Rotation (0-45⁰) 

Abduction (0-45⁰) 
Adduction (0-45⁰) 

Comment:   

X-ray show early 

degenerative arthritis 

Full ROM 

Not recorded 

0-45⁰ 

Not recorded 

Increased pain with flexion; 
TTP deep into inguinal area; 

neurovascularly intact 

“pain with running”; 
Tenderness over right 

abductor tendons 

§4.71a Rating 

10% 

10% (PEB 0%) 

10% (VA 10%) 

 
The  exams  all  showed  right  hip  painful  motion.    The  right  hip  X-ray  demonstrated  early 
degenerative arthritic changes.  The commander’s statement indicated that the right hip pain 
and LBP limited the CI’s mobility and his ROM to perform his MOS.  The first MEB examination 
noted that the CI had increased pain in flexion.  The second MEB examination indicated that the 
CI was unable to walk more than approximately 30 minutes and an inability to run due to right 
hip pain.  The exam findings are in the chart above.  X-rays demonstrated early degenerative 
arthritis.  The initial C&P examination 3 months after separation noted intermittent moderate 
pain associated with painful motion.  The C&P exam findings are in the chart above with no 
objective evidence of painful motion.   
 

   4                                                           PD1200533 
 

The Board directs attention to its rating recommendation based on the above evidence.  The 
PEB  coded  the  degenerative  arthritis  right  hip  5003  arthritis,  degenerative  (hypertrophic  or 
osteoarthritis) rated 0%.  The VA coded the Right Hip condition 5252 (thigh, limitation of flexion 
of) to 5003 arthritis, degenerative (hypertrophic or osteoarthritis) rated 10%.  Both MEB exams 
indicated pain with motion and the right hip X-ray demonstrated degenerative arthritis.  The 
C&P exam indicated mild right hip arthritis with a noncompensable limitation of motion with 
abduction  and  adduction.    The  Board  agreed  that  the  more  probative  evaluation  reflecting 
disability at separation was that of the MEB examiner.  The PEB-stated “without loss of motion” 
was  in  contrast  to  the  NARSUM  limited  ROM  measurements.    The  PEB  indicated  “condition 
limits ambulatory abilities” was supported in the NARSUM and the commander’s statement and 
indicated functional loss IAW VARD §4.40.   
 
The  NARSUM  examination  and  STR  notes  warranted  application  of  VASRD  §4.59  (painful 
motion) and §4.40 (functional loss) to achieve the minimal compensable rating (10%).  There 
was no compensable ROM impairment under either the 5251 (limitation of extension) or 5252 
(limitation  of  flexion)  codes.    Code  5253  (thigh,  impairment)  was  considered;  but,  loss  of 
motion beyond 10 degrees abduction was not documented and this was the only route to a 
rating higher than 10% under that code.  Thus there is no route to a rating higher than 10% 
under  any  applicable  joint  code  and  no  coexistent  pathology  which  would  merit  additional 
rating for the hip condition under a separate code.  After due deliberation, considering all of the 
evidence  and mindful  of  VASRD  §4.3  (reasonable  doubt), the  Board  recommends  a  disability 
rating of 10% for the degenerative arthritis right hip condition coded 5003.   
 
Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the PEB 
were recurrent (left) shoulder tendinitis, recurrent ankle sprains, benign essential tremor, and 
allergic rhinitis.  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.   
 
None of these conditions were profiled; none were implicated in the commander’s statement; 
and, none were judged to fail retention standards.  All were reviewed by the action officer and 
considered by the Board.  There was no indication from the record that any of these conditions 
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  any  of  the  contended  conditions;  and,  therefore,  no  additional  disability 
ratings 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.    In  the  matter  of  the 
chronic  LBP  Secondary  to  DDD  condition,  the  Board  unanimously  recommends  a  disability 
rating of 20%, coded 5292-5293 IAW VASRD §4.71a.  In the matter of the degenerative arthritis 
right hip condition, the Board unanimously recommends a disability rating of 10%, coded 5003 
IAW  VASRD  §4.71a.    In  the  matter  of  the  contended  recurrent  (left)  shoulder  tendinitis, 
recurrent  ankle  sprains,  benign  essential  tremor,  and  allergic  rhinitis  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.   
 

   5                                                           PD1200533 
 

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 
5292-5293 

20% 
10% 
30% 

5003 

COMBINED 

UNFITTING CONDITION 

Chronic LBP Secondary to DDD 
Degenerative Arthritis Right Hip 

 
 
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 
 
 
 
 
 
 
 
 

 

           XXXXXXXXXXXXXXX 
           President 
           Physical Disability Board of Review 

   6                                                           PD1200533 
 

 
 

 
 

 
 
 

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 /  ), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557 
 
 
SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation  
for XXXXXXXXXXXXXXXXXXXXXXX, AR20120021439 (PD201200533) 
 
 
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 30% 
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 30% 
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) 

 
 
 

 
 
 

 
 
 

 
 
 

 
 
 

   7                                                           PD1200533