RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  NAVY  
SEPARATION DATE:  20040204 

 
NAME:  XX 
CASE NUMBER:  PD1200648 
BOARD DATE:  20130117 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered individual (CI) was an active duty Petty Officer Third Class/E-4 (MT3/Missile Technician 
Third  Class),  medically  separated  for  L3/4  and  L4/5  disc  herniation  status  post  (s/p) 
laminectomy.  The CI complained of persistent back pain after having a multiple level lumbar 
laminectomy  performed  in  January  2002.    That  surgery  was  performed  for  multiple  disc 
herniations  incurred  after  injury  sustained  while  on  active  duty.    His  pain  did  improve  after 
surgery.  He had permanent restrictions since his surgery to include no running.  Because of 
persistent  pain  in  the  low  back  and  pain  (LBP)  in  both  the  right  and  left  buttocks  and 
hamstrings,  the  CI  was  unable  to  meet  the  physical  requirements  of  his  rating  or  to  satisfy 
physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation 
Board  (MEB).    L3/4  and  L4/5  disc  herniation  s/p  laminectomy,  recurrent  disc  herniation  on 
L5/S1, degenerative disc disease (DDD) L3 /4, L4/5 and LBP conditions, identified in the rating 
chart below, were also identified and forwarded by the MEB.  The PEB adjudicated the L3/4 and 
L4/5 disc herniation s/p laminectomy conditions as unfitting, rated 20% with application of the 
SECNAVINST 1850.4E.  The remaining conditions (degenerative disc disease L3/4, L4/5, low back 
pain, and recurrent disc herniation L5/S1) were determined to be not unfitting and determined 
to be Category II.  The CI made no appeals, and was medically separated with a 20% disability 
rating.   
 
 
CI CONTENTION:  “The disability rating of 10% did not accurately reflect the level of trauma to 
my lower back.  The lack of mobility and daily pain warranted a higher rating.”   
 
 
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 Category II PEB conditions of DDD 
L3/4, L4/5; and LBP; recurrent disc herniation L5/S1; as well as the CI-specified lack of mobility 
and daily pain conditions as requested for consideration 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  L3/4  and  L4/5  disc  herniation  s/p  laminectomy  condition.    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 20030916 
Condition 
L3/4  And  L4/5  Disc  Herniation  Status 
Post Laminectomy (Low Back Pain) 
Degenerative Disc Disease L3/4, L4/5 
Low Back Pain 
Recurrent Disc Herniation L5/S1 
↓No Additional MEB/PEB Entries↓ 
Combined:  20% 

Rating 
20% 

Code 
5295 
CAT II 
CAT II 
CAT II 

VA (~1 Mo. Post-Separation) – All Effective Date 20040205 
Condition 

Rating 

Exam 

Code 

Status  Post  Discectomy  and 
Laminectomy,  L3-L4  and  L4-
L5 

5243 

10%* 

20040330 

0% X 1 
Combined:  10%* 

20040330 

*Increased to 40% from 20080414 (combined 40%)  
 
 
ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application 
regarding  the  gravity  of  his  condition  and  the  significant  impairment  with  which  his  service-
connected 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  Veteran’s 
Affairs (DVA), operating under a different set of laws (Title 38, United States Code).  The Board 
evaluates  DVA  evidence  proximate  to  separation  in  arriving  at  its  recommendations,  but  its 
authority  resides  in  evaluating  the  fairness  of fitness  decisions  and  rating  determinations for 
disability at the time of separation.   
 
L3/4 and L4/5 Disc Herniation Status Post Laminectomy (Low Back Pain) Condition [Including 
Associated  Lower  Back  Conditions].    The  goniometric  range-of-motion  (ROM)  evaluations  in 
evidence  which  the  Board  weighed 
its  rating  recommendation,  with 
documentation of additional ratable criteria, are summarized in the chart below.   
 

in  arriving  at 

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 

PT ~12 Mos. Pre-Sep  

“AROM WNL” 

“hamstring 
flexibility 
lacking  35  bilat”;  non-
antalgic  gait,  [Tenderness; 
painful  motion, 
not 
commented] 
0%-unk  

flex/ext 

MEB ~5 Mos. Pre-Sep  
“50%  expected 
without discomfort”- 
- 
75-80%  of  expected  due 
to discomfort 
- 
in  back,  rad’g  to 
Pain 
“50% 
buttocks, 
expected  flex/ext  without 
discomfort” 
75-80% 
expected  lat  rotn  due  to 
discomfort; normal gait 
20% 

HS. 

VA C&P ~3 Mos. Post-Sep 
80⁰ 
30⁰ 
- 
- 
30⁰ 
30⁰ 
- 
“Mild 
motion”;  
+ spasm; X-ray: reversal of 
the 
the 
lumbar spine 
20% 

curvature  of 

limitation 

of 

 
At the MEB examination, dictated 5 months prior to separation, the CI reported pain in his back 
radiating  to  his  buttocks  and  hamstrings,  without  weakness.    The  MEB  physical  exam  noted 
decrease  in  ROM  to  “50%  expected  flexion  extension  at  the  lumbosacral  spine  without 
significant discomfort.”  Lateral rotation was noted to be “75 to 80% of expected” limited to 
discomfort.  The examiner noted normal gait and did not comment on the presence of spasm.  
X-ray showed multi-level facet changes.  Magnetic resonance imaging on 9 August 2003 showed 
advanced  degenerative  changes,  new  bulging  at  L5/S1  and  severe  disc  ‘dessication’  at  L3/4 
andL4/5 levels.   
 

   2                                                           PD1200648 
 

At the VA Compensation and Pension exam, 3 months after separation, the CI reported stiffness 
and pain localized to his low back, aggravated by sitting and standing for long periods.  He had 
no neurologic symptoms to include weakness.  Physical evaluation revealed spasm to his low 
back,  forward  flexion  to  80  degrees,  extension  to  30,  lateral  extension  to  30  bilaterally  and 
rotation to 30 bilaterally.  There was radiographic evidence of reversal of the curvature of the 
lumbar spine.   
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
PEB, under the interim spine rules (prior to September 2003), rated the low back condition 20% 
code 5295, lumbosacral strain.  The VA, under the new spine rules, rated the low back condition 
10% under code 5243, intervertebral disc syndrome, based upon ROM measurements at that 
time.    At  the  date  of  separation,  codes  5237,  5243,  and  5242  (degenerative  arthritis  of  the 
spine)  are  appropriate  to  the  CI’s  pathology.    The  ROM  described  in  the  narrative  summary 
correlates to a 20% rating under the General Rating Formula for Diseases and Injuries of the 
Spine (Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 
60 degrees).  A 40% rating requires thoracolumbar spine 30 degrees or less or ankylosis of the 
entire thoracolumbar spine.  There is no evidence of incapacitating episodes to support a rating 
under the 5243 (intervertebral disc syndrome) formula for rating intervertebral disc syndrome 
based  on  incapacitating  episodes.    There  was  no  evidence  of  unfitting  peripheral  nerve 
impairment in this case.  The general spine formula ratings are with or without symptoms such 
as  pain  (whether  or not  it  radiates),  stiffness,  or  aching  in  the  area  of the  spine  affected  by 
residuals of injury or disease.  The CI’s contended lack of mobility and daily pain, as well as the 
Category  II  diagnoses  of  DDD  L3/4,  L4/5;  LBP;  and  recurrent  disc  herniation  L5/S1  are 
considered under the single rating in accordance with the general spine formula ratings.  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 20% adjudication for the LBP condition, but recommended a change in code 
to 5243 to align with the VASRD in effect at the date of separation.   
 
Contended PEB Conditions.  All of the Category II and contended conditions were subsumed in 
the modification of the CI’s rating for his unfitting lower back condition above.   
 
 
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; however, the PEB rating was under an older VASRD no longer in effect at the 
time of separation.  In the matter of the L3/4 and L4/5 disc herniation s/p laminectomy (LBP) 
condition,  the  Board  unanimously  recommends  no  change  in  the  PEB’s  20%  disability  rating 
level, but a change to VASRD code 5243 IAW VASRD §4.71a to conform to the VASRD in effect 
at the date of separation.  This change is because an administrative correction (VASRD Code 
changed  to  5243)  noted.    In  the  matter  of  the  contended  DDD  L3/4,  L4/5;  LBP  (and  lack  of 
mobility); and recurrent disc herniation L5/S1; conditions, the Board unanimously recommends 
no  change  from  the  PEB  determinations  as  Category  II  and  not  separately  unfitting  or 
compensable.    There  were  no  other  conditions  within  the  Board’s  scope  of  review  for 
consideration.   
 
 
 
 
 

   3                                                           PD1200648 
 

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as 
follows, effective as of the date of his prior medical separation:   
 

UNFITTING CONDITION 
L3/4 and L4/5 Disc Herniation Status Post Laminectomy (Low 
Back Pain) Condition 

VASRD CODE 
5243 
COMBINED 

RATING 
20% 
20% 

 
 
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 
 
 
 
 
 
 
 
 

           xxx 
           Director 
           Physical Disability Board of Review 

   4                                                           PD1200648 
 

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) 

   5                                                           PD1200648