RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  MARINE CORPS 
 
SEPARATION DATE:  20020215 

 
NAME:  xx 
CASE NUMBER:  PD1200619 
BOARD DATE:  20130124 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered 
individual  (CI)  was  an  active  duty  SSgt/E-6  (2651/Special  Intelligence  System 
Administrator/Communicator),  medically  separated  for  lumbar  discogenic  back  pain.    The  CI 
developed discogenic back pain that did not improve adequately with treatment to meet the 
physical  requirements  of  his  Military  Occupational  Specialty  or  satisfy  physical  fitness 
standards.    He  was  placed  on  limited  duty  /placed  on  light  duty  and  referred  for  a  Medical 
Evaluation  Board  (MEB).    The  MEB  forwarded  lumbar  discogenic  back  pain  to  the  Physical 
Evaluation Board (PEB) for adjudication.  No other condition was forwarded to the PEB.  The 
PEB  adjudicated  the  lumbar  discogenic  back  pain  condition  as  unfitting,  rated  20%,  with 
application of the SECNAVINST 1850.4D.  The CI made no appeals, and was medically separated 
with a 20% disability rating.   
 
 
CI CONTENTION:  “I was given 20% when I got out then I was 20% for 6 years until I fought it.  
Then It was raised to 60% disability.”  
 
 
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 lumbar discogenic back pain condition 
as  requested  for  consideration  meets  the  criteria  prescribed  in  DoDI  6040.44  for  Board 
purview; and, is addressed below.  The remaining conditions rated by the VA at separation and 
listed on the DA 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 Board for Correction of Naval Records.   
 
 
RATING COMPARISON:   
 

Code 
5293 

Rating 
20% 

VA (~1 Mo. Post-Separation) – All Effective Date 20020216 
Condition 
Degen.  Disc Dis. Lumbosacral Spine 
w/ HNP; without Radiculopathy  
Tinnitus 
0% X 2 / Not Service-Connected x 1 
Combined:  20% 

Service IPEB – Dated 20011206 
Condition 
Lumbar Discogenic Back Pain 
 
↓No Additional MEB/PEB Entries↓ 
Combined:  20% 
*Increased to 40% effective 20080618 by VARD 20081212 (code changed to 5237; combined rating changed to 60%). 
 
 
ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit 
and  vital  fighting  force.    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 DES 
has neither the role nor the authority to compensate members for anticipated future severity 

Exam 
20020711 
20020711 
  

Rating 
10%* 
10% 

Code 
5293 
6260 

or  potential  complications  of  conditions  resulting  in  medical  separation  nor  for  conditions 
determined  to  be  service-connected  by  the  Department  of  Veterans  Affairs  (DVA)  but  not 
determined to be unfitting by the PEB.  However the DVA, operating under a different set of 
laws  (Title  38,  United  States  Code),  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.  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  Veteran  Affairs  Schedule  for  Rating  Disabilities  (VASRD) 
standards, based on severity at the time of separation.   
 
Lumbar Discogenic Back Pain Condition.  The CI was well until September 2000 at which time he 
experienced the sudden onset of low back pain (LBP).  The CI was seen in the orthopedic clinic 
at  which  time  he  was  diagnosed  with  extension  back  pain  consistent  with  facet  syndrome.  
Subsequent magnetic resonance imaging of the lumbar spine revealed multilevel degenerative 
disk disease (DDD) with broad-based disk bulges at L4-5 and L5-S1 with small central protrusion 
or herniation.  Along with medical treatments, he was treated on several occasions at the pain 
clinic where he received nerve blocks (twice), epidural steroid injections, and radiofrequency 
ablation.  Despite all these interventions, the CI continued to have LBP.  At the MEB narrative 
summary examination on 14 September 2001, the CI reported continued LBP with occasional 
radiation down the legs.  The symptoms were worse with running or jogging.  On examination 
there  was  no  tenderness  or  muscle  spasm.    Straight  leg  raising  (SLR)  on  the  left  provoked 
symptoms.  Muscle strength, reflexes and sensation were normal.  At the VA Compensation and 
Pension exam on 11 July 2002, the CI reported recurrent LBP in the midline with sitting more 
than 30 minutes, standing more than 10 minutes, twisting, turning, bending, or lifting variable 
amounts of weight or lifting repetitively.  On examination, the CI had a normal gait.  There was 
paravertebral  tenderness  but  without  spasm.    His  active  range-of-motion  (ROM)  showed 
forward  flexion  to  110  degrees  (with  pain  reported  beyond  45  degrees),  extension  to  25 
degrees,  lateral  bending  20  degrees  bilaterally, and  rotation  40  degrees  bilaterally.    SLR  was 
negative for nerve root irritation and strength and reflexes were normal.   
 
The  Board  directs  attention  to  its  rating  recommendation  based  on  the  above  evidence.    In 
accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in 
effect at the time of separation.  The Board notes that the 2001 VASRD standards for the spine, 
which  were  in  effect  at  the  time  of  separation,  were  changed  to  the  current  §4.71a  rating 
standards  in  2004.    The  Board  must  correlate  the  above  clinical  data  with  the  2001  rating 
schedule  (applicable  diagnostic  codes  include:  5292  limitation  of  lumbar  spine  motion,  5293 
intervertebral disc syndrome, and 5295 Lumbosacral strain).  The PEB rated the condition 20% 
coded  5293  for  lumbar  discogenic  back  pain.    The  VA  rated  10%  coded  5293  for  congenital 
variant, lumbosacral junction (lumbarization at the S1 level) with DDD of the lumbosacral spine 
with  herniated  nucleus  pulposus  (HNP),  but  without  objective  evidence  of  lower  extremity 
radiculopathy.  The Board first considered the rating under code 5293, used by both the PEB 
and  the  VA.    The  Board  noted  that  the  CI  had  a  well  documented  disc  condition  that  could 
account  for  his  chronic  pain.    In  the  year  leading  up  to  the  MEB  examination,  the  service 
treatment  records  (STRs)  document  an  extensive  history  of  chronic  back  pain  and  multiple 
treatment interventions including nerve blocks, epidural steroid injection, and nerve ablation.  
At the time of the MEB examination the CI had continued pain with radiation, however there 
were  no  abnormal  neurologic  findings.    All  members  agreed  that  the  STRs  and  the  MEB 
examination did not support a rating higher than the 20% adjudicated by the PEB.  The Board 
also concluded that the VA examination after separation did not support a rating higher than 
the 10% adjudicated by the VA.  The Board then considered rating under codes 5292 limitation 
of  motion  and  5295  lumbosacral  strain.    Since  there  was  no  more  than  slight  limitation  of 
motion with pain on motion, no spasm or unilateral loss of lateral bending, normal strength and 
gait,  the  Board  concluded  that  the  condition  would  rate  no  more  than  10%  under  either  of 
these codes.  The Board also considered if additional disability rating was justified for peripheral 

   2                                                           PD1200619 
 

nerve  impairment  due  to  radiculopathy.    The  CI  had  DDD  with  radiating  pain;  however, 
examinations  indicated  normal  strength,  reflexes  and  gait.    The  presence  of  functional 
impairment with a direct impact on fitness is the key determinant in the Board’s decision to 
recommend any condition for rating as additionally unfitting.  Therefore the critical decision is 
whether or not there was a significant motor weakness which would impact military occupation 
specific activities.  There is no evidence in this case that motor weakness existed to any degree 
that  could  be  described  as  functionally  impairing.    The  Board  therefore  concludes  that 
additional disability rating was not justified on this basis.  After due deliberation, considering all 
of  the  evidence  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 lumbar discogenic 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.    In  the  matter  of  the 
lumbar  discogenic  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 
Lumbar Discogenic Back Pain 

VASRD CODE  RATING 
5293 
COMBINED 

20% 
20% 

 
 
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 
 
 
 
 
 
 
 
 
 

 

           xx 
           Director 
           Physical Disability Board of Review 

   3                                                           PD1200619 
 

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 21 Feb 13 
 

      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 USN  
-  former USMC 
-  former USN   
-  former USMC 
-  former USN  
-  former USN   
-  former USN 
-  former USMC 
-  former USMC 
-  former USMC 
-  former USMC 
 
  

 
      
 

 
 
 

 
 
 

 
 
 

 
 
 

  xxxx 
  Assistant General Counsel 
     (Manpower & Reserve Affairs) 

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