RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

                                                          BRANCH OF SERVICE:  MARINE CORPS 

 
NAME:    
CASE NUMBER:  PD1200608                                                                SEPARATION DATE:  20030515 
BOARD DATE:  20121212 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered individual (CI) was an active duty LCPL/E-3 (6051/Basic Aircraft Maintenance Marine), 
medically  separated  for  a  low  back  condition.    The  CI  did  not  respond  adequately  to 
conservative  and  rehabilitative  treatment  to  fulfill  the  physical  demands  of  his  Military 
Occupational Specialty (MOS), meet worldwide deployment standards or satisfy physical fitness 
standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board 
(MEB).    Herniated  lumbar  disk  (HNP)  L5-S1  was  forwarded  to  the  Physical  Evaluation  Board 
(PEB) IAW SECNAVINST 1850.4.  No other conditions appeared on the MEB’s submission.  The 
PEB adjudicated the low back condition as unfitting, rated 10%, with likely 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:  “The reason for separation (ruptured disks) has progressively got worse.” 
 
 
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 herniated lumbar disk, L5-S1 condition 
requested for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview, 
and  is  accordingly  addressed  below.    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 Board for Correction of Naval Records. 
 
 
RATING COMPARISON: 
 

VA (~7 Mos. Post-Separation) – Effective Date 20030516 

 
 
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 

Service IPEB – Dated 20030515 
Condition 

Code 
5293 

Rating 
10% 

Herniated Lumbar Disk 

Combined:  10% 

Condition 

Herniated Disc, L5-S1 w/ DDD 

Code 
5292 

Rating 
20% 

Exam 

20031224 

Combined:  20% 

separation.  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  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. 
 
Low Back Condition.  The CI sought treatment for low back pain after bending over to pick up a 
box in March 2002.  The pain in his back radiated to the bilateral legs, right more than the left.  
He  was  diagnosed  with  low  back  pain  and  bilateral  sciatica  and  attempted  conservative 
treatment  with  nonsteroidal,  muscle  relaxants  and  pain  modifier  medications,  limited  duty 
restrictions and physical therapy.  He was evaluated by orthopedics and a magnetic resonance 
imaging (MRI) confirmed a herniated lumbar disk (HNP) at L5-S1.  Orthopedics recommended 
continued  conservative  treatment  and  referred  him  to  the  PEB.    While  in  the  PEB  process  a 
referral was placed for neurosurgery for persistent pain, new symptoms of left leg weakness 
and an exam by physical therapy which demonstrated an intermittent heel drop secondary to 
pain.  The neurosurgeon evaluation was not in evidence.  The service treatment record (STR) 
reflected a consistent reported pain scale of 6-7 of 10 in intensity with some relief with the pain 
modifier, Elavil.  There was one entry in evidence, 4 months prior to separation, for an acute 
flare-up  that  required  quarters.    The  LIMDU  identified  bilateral  sciatica  with  the  following 
documented  limitations;  no  running,  marching  or  lifting  greater  than  10  pounds.    The  non-
medical assessment corroborated these limitations and further documented he was unable to 
perform  the  duties  required  by  the  Marine  Corps.    There  were  two  goniometric  range-of-
motion (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 ~8 Mo. Pre-Sep 

VA C&P ~7 Mo. Post-Sep 

Thoracolumbar ROM 
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) 

§4.71a Rating 

45 
0 
~15 
~15 
~15 
~15 
90 

20% 

40 
25 
30 
25 
25 
25 
170 

normal 
20% 

Comment 

Silent to pain on motion 

Rhythm of spine motion 

 
The MEB physical exam demonstrated a slightly antalgic gait, no scoliosis or spasm, straight leg 
raises gave rise to back pain, but not leg pain and otherwise the neuromuscular findings of the 
lower  extremities  were normal.   X-rays of  the  lumbosacral  spine  revealed narrowing  at  L5-Sl 
and the MRI was compatible with a herniated disk at LS-S1.  The examiner documented he was 
not  a  good  candidate  for  lumbar  laminectomy  because  there  was  no  discreet  neurological 
deficit, and a symptom complex where back pain predominated over leg pain.  The examiner 
diagnosed HNP L5-S1 and further documented the CI was offered surgery which he reasonably 
declined.  At the VA Compensation and Pension (C&P) exam after separation, the CI reported 
pain at a 5 of 10 in intensity at the low level and a 9 of 10 in intensity at the high level with 
radiation  to  both  legs  in  a  nonspecific  description,  worse  in  the  morning  with  stiffness, 
sometimes  could  not  bend  over  to  tie  his  shoe  and  loss  of  his  balance  with  complaints  of 
clumsiness.  He was not taking pain medications and had not found work because of his back 
condition.  The C&P exam demonstrated; normal posture and spine contour, slightly wide base 
gait, normal heel-toe walk and decreased sensation of the lower extremities below the knees 
bilaterally in stocking glove distribution otherwise normal neuromuscular findings of the lower 
extremities.  With repetitive motion he developed a deviation with concavity to the right and 
firmness in the paraspinous muscles both left and right with a decrease in forward flexion to 30 

   2                                                           PD1200608 
 

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 ……. 
Severe; recurring attacks, with intermittent relief ………. 
Moderate; recurring attacks ………………………………………… 
Mild ……………………………………………………………..……………… 
Postoperative, cured ……………………………………………..…… 
 

60 
40 
20 
10 
  0 

degrees.    MRI  revealed  a  HNP  L5-S1  with  displacement  of  the  right  S1  nerve  root  but  also 
contacting  the  left  S1  nerve  root,  disc  disease  at  L3-4  and  L4-5.    X-rays  revealed  advanced 
degenerative disc disease posteriorly at L5-S1. 
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
2002  VASRD  coding  and  rating  standards  for  the  spine,  which  were  in  effect  at  the  time  of 
separation,  were  modified  on  23  September  2002  to  add  incapacitating  episodes  (5293, 
Intervertebral  disc  syndrome),  and  then  changed  to  the  current  §4.71a  rating  standards  on 
26 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.  For the reader’s convenience, the 2002 rating codes 

under discussion in this case are excerpted below.  The two potentially applicable codes from 

the 2002 VASRD are excerpted below: 
 

5292 Spine, limitation of motion of, lumbar: 

 
The Board agreed the evidence supports the “mild” and “moderate” pain under the 5293 code 
for intervertebral disc syndrome which is consistent with the PEB’s chosen code, however there 
is no evidence of recurring attacks.  However, in consideration of VASRD §4.7, the moderate 
pain scale evidence in the STR and with similar ratable flexion ROM data, the Board agreed both 
exams are consistent with the VA’s chosen code 5292 for moderate limitation of spine motion.  
There was no evidence of documentation of incapacitating episodes or ratable peripheral nerve 
functional  impairment  which  would  provide  for  additional  or  higher  rating.    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 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  herniated  lumbar  disk,  L5-S1  condition,  the  Board 
unanimously  recommends  a  disability  rating  of  20%,  coded  5292  IAW  VASRD  §4.71a.    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, effective as of the date of his prior medical separation: 
 

   3                                                           PD1200608 
 

Herniated Lumbar Disk, L5-S1 

UNFITTING CONDITION 

 
 
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 
 
 
 
 
 
 
 
 

 

VASRD CODE  RATING 

20% 
20% 

5292 

COMBINED 

             
           President 
           Physical Disability Board of Review 

   4                                                           PD1200608 
 

      
 

                           

           COMMANDER, NAVY PERSONNEL COMMAND 
            

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS 
 
 
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS           
 
Ref:   (a) DoDI 6040.44 
          (b) PDBR ltr dtd 17 Feb 12  
          (c) PDBR ltr dtd 26 Dec 12  
          (d) PDBR ltr dtd 8 Jan 13 ICO  
          (e) PDBR ltr dtd 14 Jan 13 ICO 
 
                                         
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in 
references (b) through (e). 
 
2.  The official records of the following individuals are to be corrected to reflect the stated disposition: 
 
 
with entitlement to disability severance pay effective the date of discharge. 
 
 
percent) with entitlement to disability severance pay effective the date of discharge. 
 
 
percent) with entitlement to disability severance  pay effective the date of discharge.  

b.  former USMC:  Disability separation with a final disability rating of 20 percent (increased from 10 

c.  former USN:  Disability separation with a final disability rating of 20 percent (increased from 10 

a.  former USN:  Disability separation with a final disability rating of 10 percent (increased from 0 percent) 

 
d.  former USN:  Disability separation with a final disability rating of 20 percent (increased from 10 

 

percent) with entitlement to disability severance pay effective the date of discharge. 
 
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. 
 
 
 
 
 
 
 

    
  Assistant General Counsel 
     (Manpower & Reserve Affairs) 

 
 
 

 
 
 

 
 
 

 
 
 

 
 
 

   5                                                           PD1200608