RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

                                                      BRANCH OF SERVICE: MARINE CORPS 

 
NAME: XXXX 
CASE NUMBER:  PD1200653                                                             SEPARATION DATE:  20020618 
BOARD DATE:  20130228 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty  Marine,  SGT/E-5  (5544/Musician),  medically 
separated for status post (s/p) left L4-L5 and L5-S1 herniated nucleus pulposus (HNP).  The CI 
injured his back while lifting a heavy desk in January 2001.  Despite physical therapy, numerous 
civilian  neurosurgery  visits,  and  limited  duty  (LIMDU),  the  CI  could  not  be  adequately 
rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or 
satisfy  physical  fitness  standards  and  he  was  referred  for  a  Medical  Evaluation  Board  (MEB).  
The s/p left L4-L5 & L5-S1 HNP condition was forwarded to the Physical Evaluation Board (PEB) 
IAW SECNAVINST 1850.4E.  The MEB forwarded no other conditions for PEB adjudication.  The 
PEB  adjudicated  s/p  left  L4-L5  and  L5-S1  HNP,  with  radicular  and  neurological  findings,  now 
resolved,  with persistent  quadriceps  weakness  (subjective) as  unfitting, rated  10%  with  cited 
application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The CI agreed to a 
conditional acceptance of the PEB finding provided he could remain on active duty until 18 June 
2002.  That request was approved and he was medically separated with a 10% disability rating. 
 
 
CI  CONTENTION:  The  CI  writes:  “Upon  further  medical  review  by  VA  and  civilian  doctors  my 
separating injury (herniated disc at L4-L5) was increased up to 40%.  In addition, I discovered 
that the paralysis in my left leg (10%), which was present during my separation, was considered 
a separate condition deserving its own rating.  This gives me a current disability rating of 50%.”  
 
 
SCOPE  OF  REVIEW:    The  Board’s  scope  of  review  is  defined  in  DoDI  6040.44  Enclosure  3, 
paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for 
continued military service and those conditions identified but not determined to be unfitting by 
the PEB when specifically requested by the CI.  Ratings for unfitting conditions will be reviewed 
in  all  cases.   The  rated, unfitting  condition  of  HNP  as requested for  consideration  meets the 
criteria  prescribed 
  Additionally,  the  contended 
radiculopathy condition also meets the Board criteria, and it will be reviewed.  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:   
 

in  DoDI  6040.44  for  Board  purview. 

Service IPEB – Dated 20020410 
Condition 

S/P LEFT L4-L5 AND L5-S1 HNP, W/RADICULAR  AND 
NEUROLOGIC FINDINGS, NOW RESOLVED, W/PERSISTENT 
QUADRICEPS WEAKNESS (SUBJECTIVE) 

Combined:  10% 

Code 

Rating 

5295 

10% 

Condition 
HNP, L4-5, 
L4-S1 

VA -  (6 Mos. Pre-Separation)     

Code 

Rating 

Exam 

5293 

20% 

20011228 

Combined:  20% 

 
 
ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant 
impairment  with  which  his  service-connected  condition  continues  to  burden  him  but  must 
emphasize that the Disability Evaluation System (DES) has neither the role nor the authority to 

 

Flexion (90 Normal) 

Extension (30) 

R Lateral Flexion (30) 
L Lateral Flexion (30) 

R Rotation (30) 
L Rotation (30) 
Combined (240) 

Comment 

§4.71a Rating 

2001 VASRD 5292 
2001 VASRD 5293 
2001 VASRD 5295 

80 
20 
25 
25 

No report 
No report 
210 to 150 

10% 

N/A (VA rated 20%) 

 

10% 

Full 
Full 
Full 
Full 
Full 
N/A 

 

10% 
N/A 
10% 

compensate members for anticipated future severity or potential complications of conditions 
resulting in medical separation.  The Board’s authority as defined in DoDI 6040.44, resides in 
evaluating the fairness of DES fitness determinations and rating decisions for disability at the 
time  of  separation.    The  Board  utilizes  VA  evidence  proximal  to  separation  in  arriving  at  its 
recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to 
post-separation  evidence.    Post-separation  evidence  is  probative  only  to  the  extent  that  it 
reasonably reflects the disability and fitness implications at the time of separation. 
 
Herniated Nucleus Pulposus.  The goniometric range-of-motion (ROM) evaluations in evidence 
that  the  Board  weighed  in  arriving  at  its  rating  recommendation,  with  documentation  of 
additional ratable criteria, are summarized in the chart below. 

 

Thoracolumbar ROM 

(Degrees) 

Navy/VA Separation Physical 

~6 Mo. Pre-Sep 

Medical Board Report 

 ~ 5 Mo. Pre-Sep 

To Mid-Tibia 

Erect posture and normal gait; able to walk on toes and 
heels and squat; decreased dorsiflexion left foot; some 
tenderness to percussion over lumbar spine; no spasm 
or sacroiliac dimple tenderness; positive straight leg 
raise on left at 45°; slightly flattened lumbar lordosis; left  
quadriceps strength 60% of right side; some weakness to 
dorsiflexion of left foot; reflexes equal and reactive; no 
other motor or sensory loss 

Normal gait; negative straight leg 
raise; motor 5/5 and reflexes 2+ 
bilateral lower extremities; 
sensory intact to light touch; MRI 
Feb 2001: HNP at L4-5 and L5-S1 
with possible left L5 nerve root 
compression; X-ray Feb 2001 
normal 

 
The  CI  underwent  a  separation/VA  physical  approximately  6  months  prior  to  his  separation 
from service.  Physical exam findings are noted in the ROM chart above.  A report of medical 
board narrative summary (NARSUM) prepared 5 months prior to separation noted the CI’s left 
leg  pain  had  completely  resolved.    He  continued  to  report  weakness  involving  his  left 
quadriceps but stated this was improving.  Physical exam findings are noted in the ROM chart 
above. 
 
The VA rating for the HNP was increased to 40% but this was not effective until 19 July 2005, 
more  than  3  years  after  separation  and  this  was  based  on  a  VA  Compensation  and  Pension 
(C&P) examination completed on 19 July 2005 and VA treatment records for medical care after 
separation.  The VA initially made the 40% rating effective 19 June 2002 but later noted this 
was an error and the 40% was not warranted prior to 19 July 2005.  This 2005 C&P examination 
documented a worsening of the CI’s condition over time. 
 
The  2001 Veterans Administration  Schedule for Rating  Disabilities  (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 2001 standards for 
rating  based  on  ROM  impairment  were  subject  to  the  rater’s  opinion  regarding  degree  of 
severity, whereas the current standards specify numerical rating thresholds in degrees of ROM 
impairment.    When  older  cases  have  goniometric  measurements  in  evidence,  the  Board 
reconciles (to the extent possible) its opinion regarding degree of severity for the older spine 

2                                                           PD1200653 

codes and ratings with the objective thresholds specified in the current VASRD §4.71a general 
rating formula for the spine.  This promotes uniformity of its recommendations for different 
cases from the same period and more conformity across dates of separation, without sacrificing 
compliance with the DoDI 6040.44 requirement for rating IAW the VASRD in effect at the time 
of separation. 
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
PEB  rated  the  conditions  under  VASRD  5295  Lumbosacral  strain  at  10%  presumably  for 
characteristic pain on motion.  The VA rated the condition under VASRD 5293 Intervertebral 
disc  syndrome  at  20%  based  on  functional  impairment  and  painful  motion.    No  mention  of 
recurring  attacks  was  present  in  the  rating  decision  or  in  the  examination  performed  for 
separation/VA rating.  The report of medical board NARSUM did report “…intermittent aching 
pain in his low back.”  Later C&P examinations also refer to flare-ups.  However, with no reports 
of recurring attacks prior to separation or the frequency or severity of such attacks, the Board 
does not have enough information to adequately rate this condition using VASRD 5293.  The 
available information from both prior to separation examinations noted above supports a 10% 
under either 5292 for slight limitation of motion or 5295 for characteristic pain on motion.  No 
appropriate  rating  scheme  results  in  a  disability  rating  greater  than  10%.    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 herniated nucleus pulposus condition.   
 
Contended  PEB  Conditions.    The  CI  contended  for  an  additional  rating  for  sciatic  nerve 
radiculopathy.    The  service  treatment  record  (STR)  includes  reports  of symptoms  of  a  sciatic 
nerve  radiculopathy  with  compatible  magnetic  resonance  imaging  (MRI)  findings,  symptoms, 
and physical examination findings.  However, the STR includes evidence these symptoms and 
findings diminished as the CI approached the day of separation.  The CI medical board report 
NARSUM, which is closest to the date of separation and therefore has greater probative value, 
noted the CI’s left leg pain had completely resolved and his neurologic exam was completely 
normal.  While the later C&P exams and treatment records did show a return of symptoms and 
findings consistent with a radiculopathy, including a positive electromyogram (EMG) test, none 
of  these  findings  were  present  at  the  time  of  separation.    There  was  no  evidence  of  a 
radiculopathy or any functional impairment related to a radiculopathy at the time of separation 
from  service.    This  condition  was  not  implicated  in  the  non-medical  assessment.    After  due 
deliberation in consideration of the preponderance of the evidence, the Board concluded that 
there was insufficient cause to recommend a determination that this condition was unfitting at 
the  time  of  separation  from  service  and  therefore,  no  additional  disability  ratings  can  be 
recommended. 
 
 
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  Left  L4-L5  and  L5-S1  Herniated  Nucleus  Pulposus 
condition,  the  Board  unanimously  recommends  no  change  in  the  PEB  adjudication.    In  the 
matter of the contended sciatic nerve radiculopathy condition, the Board unanimously agrees 
that it was not unfitting and cannot recommend any additional disability rating.  There were no 
other conditions within the Board’s scope of review for consideration.  
 
 
 

3                                                           PD1200653 

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 

10% 
10% 

xx 
Acting Director 
Physical Disability Board of Review 

Left L4-L5 and L5-S1 Herniated Nucleus Pulposus Condition 

 
 
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 
 
 
 
 

 

 

4                                                           PD1200653 

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 8 Mar 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 USMC 
-  former USMC 
-  former USN 
-  former USMC 
-  former USMC 
-  former USN 
-  former USMC 
  
 

      
 

 
 

 
 

 
 

 
 

  Assistant General Counsel 
     (Manpower & Reserve Affairs) 

 

5                                                           PD1200653