RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
BRANCH OF SERVICE: ARMY
SEPARATION DATE: 20020531
NAME: XXXXXXXXXXXXXXXXX
CASE NUMBER: PD1200558
BOARD DATE: 20130123
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SGT/E‐5 (11B20/Infantry), medically separated for
chronic low back pain (LBP) post L4/5 fusion. The CI injured his back in 2000. He was treated
with a L4‐5 microdiscectomy on 30 January 2001, but had recurrent symptoms leading to a L4‐5
fusion on 21 September 2001. Despite a good radiographic outcome and rehabilitation, he did
not improve adequately 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). The MEB determined the chronic LBP status
post (s/p) fusion condition to be medically unacceptable and forwarded the case to the Physical
Evaluation Board (PEB) for adjudication. A recurrent left hallux ingrown toenail condition,
identified in the rating chart below, was also forwarded by the MEB as medically unacceptable.
The PEB adjudicated the chronic LBP as unfitting, rated 10%, with application of the Veterans
Affairs Schedule for Rating Disabilities (VASRD). It determined that the left ingrown toenail
condition was not unfitting. The CI made no appeals and was medically separated with a 10%
disability rating.
CI CONTENTION: Due to previous surgical additions (i.e. Pins and Rods) and age, my condition
is worsening (I.E. Degenerative Joint Disease of Spine).
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 unfitting chronic LBP condition meets
the criteria prescribed in DoDI 6040.44 for Board purview and is accordingly 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.
RATING COMPARISON:
Rating
10%
Ingrown
Low Back
Code
5299—5295
Service IPEB – Dated 200450203
Condition
Chronic
Pain…
Left Hallux
Toenail
No Additional MEB/PEB Entries
Combined: 10%
* No subsequent VARDs or C&P exams in evidence
Not Unfitting
VA (~2 Mos. Post‐Separation) – All Effective Date 20020601
Condition
S/P Left L4‐5 Microdiscectomy…
Rating
20%
Code
5293
Exam
20020805
Onychocryptosis, Left Great Toe
Psoriasis
0% X 4 (To include above)
Combined: 30%*
5299‐5284
7806
0%
10%
20020805
20020805
20020805
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. 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. The Board further acknowledges the CI’s contention for ratings for other conditions
documented at the time of separation, and notes that its recommendations in that regard must
comply with the same governance. 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 Low Back Pain Condition. The CI injured his back on 18 September 2000 while lifting his
duffle bag. He was treated conservatively with medications, duty limitations and physical
therapy without adequate relief. Magnetic resonance imaging showed a large herniated disc at
L4‐5 and he underwent a micro‐discectomy on 30 January 2001. Initially, he enjoyed significant
pain relief, but then had recurrent symptoms leading to a fusion with hardware on
21 September 2001. His pain was minimal after the procedure, but the treating neurosurgeon
determined that he would not improve sufficiently to remain on active duty and recommended
an MEB. At the MEB examination on 1 December 2001, the CI reported periodic tingling in the
lower back and waist. The MEB physical examiner noted a healed scar and normal neurological
examination. The narrative summary was dictated on 17 December 2001, 5 months prior to
separation. The CI reported continued pain with prolonged sitting or standing as well as with
impact activities. On examination, a scar was noted as present. However, moderate to severe
spasm was noted about the scar. The range‐of‐motion (ROM) was reduced in flexion, extension
and right lateral bending. He used a lumbar brace which was removed for the examination.
The neurological examination was noted to be normal. At the VA Compensation and Pension
(C&P) examination on 5 August 2002, 2 months after separation and 10 months after the
fusion, the CI reported constant pain with intermittent left sciatica. He was unrestricted in
sitting as long as he sat up straight or even leaning forward. He avoided impact activities and
took no medications. Tenderness was noted over the entire lumbar spine, but not specific to
the midline scar. There was no spasm or guarding. No sciatic tenderness was noted. Testing
for nerve root irritation was borderline positive on the left. Gait was normal as were heel and
toe walk. The reflexes were normal, but no comment made on sensation or strength although
the CI was noted as being able to fully squat. The ROM was reduced, but improved from the
MEB values. The Board noted that the latter were obtained within 3 months of the second
surgery.
The Board directs attention to its rating recommendation based on the above evidence. The
PEB rated the back condition at 10% and coded it 5299‐5295, analogous to lumbosacral strain.
The VA rated the back at 20% and coded it 5293, intervertebral disc syndrome. The Board
determined that the C&P examination had a higher probative value due both to proximity to
separation, but also because it was more remote from the surgery. The Board noted that the CI
could sit without limit as long as he stayed up straight or leaned forward. No spasm was
present. Gait and the ability to squat were normal implying normal or near normal motor
function. The ROM was reduced from normal, but by a minimal amount. The CI did not require
the use of medications for pain control. After due deliberation, considering all of the evidence
2 PD1200558
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 LBP post
L4/5 fusion 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 chronic LBP 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:
VASRD CODE RATING
5299‐5295
Combined
10%
10%
UNFITTING CONDITION
Chronic Low Back Pain (LBP) Post L4/5 Fusion
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
SFMR‐RB
XXXXXXXXXXXXXXXXXXXXX, DAF
Director
Physical Disability Board of Review
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for
XXXXXXXXXXXXXXXXXX, AR20130002001 (PD201200558)
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.
3 PD1200558
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
XXXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
4 PD1200558
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AF | PDBR | CY2012 | PD2012 01966
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During the MEB exam on 5 June 2002 five months prior to separation the CI still complained of occasional back pain, some pain in his left foot, occasional left leg pain, and left lower leg numbness. In the matter of the LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5295, IAW VASRD 4.71a. I have reviewed the subject case pursuant to reference (a) and, for the reasons set forth in reference (b), approve the recommendation of the Physical Disability...
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