RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

                                               BRANCH OF SERVICE:  MARINE CORPS 

 
NAME:    
CASE NUMBER:  PD1200568                                                              SEPARATION DATE:  20020131 
BOARD DATE:  20121031 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered 
individual  (CI)  was  an  active  duty  LCpl/E-3  (3251/Organizational  Automotive 
Mechanic), medically separated for chronic low back pain.  The condition began in 2001 as a 
consequence  of  injury.    He  did  not  respond  adequately  to  operative  and  rehabilitative 
treatment  and  was  unable  to  meet  the  physical  requirements  of  his  Military  Occupational 
Specialty (MOS) or satisfy physical fitness standards.  He was placed on light duty and referred 
for a Medical Evaluation Board (MEB).  The MEB forwarded chronic low back pain and status 
post L5/S1 microdiscectomy for L5/S1 herniated nucleus pulposus for Physical Evaluation Board 
(PEB)  adjudication.    No  other  conditions  appeared  on  the  MEB’s  submission.    The  PEB 
adjudicated the chronic low back pain condition as unfitting, rated 20% with application of the 
Veteran’s  Affairs  Schedule  for  Rating  Disabilities  (VASRD). 
  Status  post  (s/p)  L5/S1 
microdiscectomy  for  L5/S1  herniated  nucleus  pulposus  was  included  as  a  related  Category  II 
diagnosis.  The CI made no appeals, and was medically separated with a 20% disability rating.   
 
 
CI  CONTENTION:    “Because  as  of Sept.  1,  2008 my  20%  rating  was  dropped  to 0%,  for  what 
reason?” 
 
 
SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in the 
Department of Defense Instruction (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 Board for 
Correction of Naval Records. 
 
 
RATING COMPARISON: 
 

Service IPEB – Dated 20011130 
Condition 

Chronic Low Back Pain 
S/P L5/S1 Microdiscectomy 

Cat 2 
↓No Additional MEB/PEB Entries↓ 

Code 
5295 

Rating 
20% 

Combined:  20% 

VA (~2 Mos. Pre-Separation) – All Effective Date 20020201 

Condition 

Lumbar Spine Degenerative Disc 
Disease 

Code 

5003-5293 

Rating 
20%* 

0% X 4 

Combined:  20% 

Exam 

20011211 
20011211 

*20070927 VA decision changed code to 5003-5242; 20080614 decision reduced rating to 0%, effective 20080901 
 
 
ANALYSIS SUMMARY:  It is noted for the record that the Board has neither the jurisdiction nor 
authority to scrutinize or render opinions in reference to the CI's statement in the application 
regarding  the rating  reduction  by the  VA  in  2008.    The  CI  should  contact  the Department  of 
Veterans’ Affairs to bring this concern to the DVA’s attention.  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.  It 

must also judge the fairness of PEB fitness adjudications based on the fitness consequences of 
conditions as they existed at the time of separation. 
 
Chronic Low Back Pain Condition.  The 2002 VASRD coding and rating standards for the spine, 
which were in effect at the time of permanent separation, were changed to the current §4.71a 
rating  standards  on  26  September  2003,  following  the  CI’s  permanent  disability  disposition.  
The older ratings were based on a judgment as to whether the disability was mild, moderate or 
severe.  The current standards are grounded in range-of-motion (ROM) measurements.  IAW 
DoDI 6040.44, this Board must consider the appropriate rating for the CI’s back  condition at 
separation based on the VASRD standards in effect at the time of separation.  The CI injured his 
lumbar  spine  in  April  2001  from  falling  onto  his  back  while  doing  a  hand  stand,  and  soon 
developed  left  lower  extremity  numbness  and  weakness  consistent  with  radiculopathy.  
Magnetic  resonance  imaging  (MRI)  confirmed  a  significant  disc  bulge  at  the  L5-S1  vertebral 
level  with  associated  central  canal  stenosis  and  effacement  of  the  left  S1  nerve  root.  
Subsequent disc surgery performed on 19 July 2001 resulted in resolution of the radiculopathy, 
but complaints of low back pain persisted.  The operating surgeon stated on 7 September 2001 
(2 months after surgery, 5 months prior to separation) that the CI was recovering well and was 
using minimal pain medication.  However, he indicated that the condition compromised the CI’s 
ability to operate heavy machinery and perform in combat.  ROM in evidence is provided in the 
following table: 
 

Neurosurgery ~3 Mos. 

Pre-Sep 

VA C&P ~6 Wks. Pre-Sep 

45⁰ 
5⁰ 

30⁰ (35⁰) 
30⁰ (35⁰) 

25⁰ 
25⁰ 
160⁰ 

 

20% 

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) 

Comment 

§4.71a Rating 

45⁰ 
10⁰ 
25⁰ 
25⁰ 

Not specified 

+muscle spasm, 

tenderness 

N/A 

20% 

 
At the narrative summary (NARSUM) exam 3 months prior to separation (23 October 2001), the 
CI reported constant pain that varied in intensity and was frequently associated with a feeling 
of grinding and audible cracking in the low back area.  Bending, twisting and prolonged standing 
exacerbated the condition.  Narcotic medication was sometimes needed for pain and he used a 
back brace.  Radiating pain down the left leg was not present.  The physical examination noted 
the CI to move slowly.  A normal gait was present, although the ability to walk on heels and 
tiptoes was poor.  There was no deformity of the lumbar spine.  Mild tenderness of the left 
paraspinal  muscles  was  present.    Significantly  decreased  extension,  left  lateral  bending  and 
rotation  were  reported,  although  measurements  were  not  specified.    A  positive  straight  leg 
raise (SLR) test was noted, but details were not provided.  Decreased left thigh muscle strength 
was  present,  while  deep  tendon  reflexes  (DTR)  were  normal.    A  neurosurgical  evaluation 
performed on 24 October 2001 reported that the CI complained of pain with slight bending, but 
that  he  could  “walk  without  problems.”    Examination  revealed  minimal  paraspinal  muscle 
spasms and minimal left sacroiliac joint tenderness.  Motor and sensory functions were intact 
and DTRs were normal.  At the VA Compensation and Pension (C&P) exam, performed 6 weeks 
prior to separation, the CI reported daily use of analgesic medication.  He was unable to run, 
march, arch his back, lie in one position too long or bend over due to considerable aggravation 
of  pain.    Examination  revealed  difficulty  walking  on  toes  and  hopping,  but  squatting  was 
performed without difficulty.  Muscle strength, sensation and DTRs were normal.  A positive 
SLR was noted bilaterally.  Back extension and flexion caused considerable discomfort.  Lumbar 

   2                                                           PD1200568 
 

5292 Spine, limitation of motion of, lumbar: 

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

5293 Intervertebral disc syndrome: 

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 

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 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  

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

 

  
  
  

 

 
 
 

 
 
 

region  tenderness  was  present.    Lumbar  spine  X-ray  showed  moderate  degenerative  disc 
disease (DDD) at L5-S1. 
 
A  VA  clinic  note  5  months  after  separation  (27  June  2002)  reported  that  the  CI  rarely  took 
narcotic  medication  for  pain.    A  follow-up  VA  pain  clinic  visit  9  months  after  separation 
(23 October 2002) reported that pain had improved to a 3 on a 0-10 scale and that his sleep had 
also  improved.    An  MRI  showed  degenerative  disc  changes  at  L4  through  S1  with  some  scar 
tissue, but without evidence of disc herniation.  
 
The Board must correlate the above clinical data with the 2002 rating schedule which, for 
convenience, is excerpted below: 
 

 
The PEB assigned a 20% rating under the 5295 code (Lumbosacral strain).  The VA assigned a 
20% rating under a 5003-5293 code (degenerative arthritis, intervertebral disc syndrome) but in 
a later rating decision modified the code to reflect newer VASRD coding options; however, the 
rating was unaffected.  The Board debated if a rating higher than the PEB’s was justified using 
the older VASRD rules in effect at the time.  Board members agreed that elements of the next 
higher 40% rating under the 5292, 5293, 5294 or 5295 codes were not present on any of the 
cited examinations.  All Board members agreed that the condition more nearly approximated 
the  criteria  for  the  20%  rating.    Status  post  L5/S1  microdiscectomy  was  designated  as  a 
Category  II  condition  and  was  appropriately  subsumed  under  the  chronic  low  back  pain 
condition already discussed above.  After due deliberation, considering all of the evidence and 
mindful  of  VASRD  §4.3  (reasonable  doubt),  the  Board  concluded  that  there  was  insufficient 
cause to recommend a change in the PEB adjudication for the chronic low 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.    The  Board  did  not 
surmise  from  the  record  or  PEB  ruling  in  this  case  that  any  prerogatives  outside  the  VASRD 

   3                                                           PD1200568 
 

were exercised.  In the matter of the chronic low 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 

VASRD CODE  RATING 

5295 

COMBINED 

20% 
20% 

Chronic Low Back Pain 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120606, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 

 

             
           President 
           Physical Disability Board of Review 

   4                                                           PD1200568 
 

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL 
                                  OF REVIEW BOARDS  
 
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS 
 
Ref:   (a) DoDI 6040.44 
             (b) CORB ltr dtd 26 Nov 12 
 
      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, 
for the reasons provided in their forwarding memorandum, approve the recommendations of 
the PDBR that the following individual’s records not be corrected to reflect a change in either 
characterization of separation or in the disability rating previously assigned by the Department 
of the Navy’s Physical Evaluation Board: 
 
                  -  former USN  
-  former USMC 
 
-  former USMC 
 
 
-  former USMC 
 
-  former USMC 
  
     
 
 
 
 
 

  
Assistant General Counsel 
(Manpower & Reserve Affairs) 

 
      
 

   5                                                           PD1200568