RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

CASE NUMBER:  PD1200744 
BOARD DATE:  20130314 

 
NAME:  X 
BRANCH OF SERVICE:  MARINE CORPS 
SEPARATION DATE:  20011115 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered 
individual  (CI)  was  a  U.S.  Marine  Corps  active  duty  CPL/E-4(6531/Aviation 
Ordanceman) medically separated for chronic low back pain (LBP).  In May 2000, the CI began 
experiencing  LBP  and  left  radicular  leg  pain  after  from  some  lifting.    Despite  two  8-month 
periods of limited duty (LIMDU) along with low-impact aerobic fitness, steroid injections, and 
posterior  lumbar  and  interbody  fusion  (PLIF)  L4-S1,  the  CI  failed  to  meet  the  physical 
requirements of his Military Occupational Specialty (MOS) and he was referred for a Medical 
Evaluation  Board  (MEB).    The  MEB  forwarded  “Status  Post  (S/P)  Posterior  Lumbar  Interbody 
Fusion L4 to S1 for Grade II Spondylolisthesis at L5-S1 and Retrolisthesis L4-5; Chronic LBP; and 
Left Lateral Leg Numbness secondary to [number] 1” to the Physical Evaluation Board (PEB).  
The MEB forwarded no other conditions for PEB adjudication.  The PEB adjudicated “Chronic 
LBP”  as  unfitting,  rated  20%,  with  application  of  the  Veteran’s  Affairs  Schedule  for  Rating 
Disabilities  (VASRD).    Although  the  condition  was  also  determined  to  have  existed  prior  to 
service (EPTS), the disability rating was not reduced.   The remaining conditions, “Left Lateral 
Leg Numbness and S/P Lumbar Interbody Fusion L4 to S1 for Grade II Spondylolisthesis at L5-S1 
and Retrolisthesis L4-5” were determined to be related to the primary condition and were not 
separately  rated.    The  CI  made  no  appeals,  and  he  was  medically  separated  with  a  20% 
disability rating. 
 
 
CI  CONTENTION:    “Spinal  fusion  and  degenerative  disk  disease.    L4-L5-S1  is  fuse  in  4.71a 
schedule of rating – musculoskeletal system diagnostic codes 5236 -5243 unfavorable ankylosis 
of the entire thoracolumbar spine %50.  I have taken pain medication for over a decade which 
has resulted in stomach ulcers and the change of pain medication.” 
 
 
SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in DoDI 
6040.44 (4.a) is limited to those conditions that were determined by the PEB to be specifically 
unfitting  for  continued  military  service;  and,  when  requested  by  the  CI,  those  condition(s) 
“identified but not determined to be unfitting by the PEB.”  The CI’s chronic LBP and related 
conditions,  as  requested  for  consideration,  meet  the  criteria  prescribed  in  DoDI  6040.44  for 
Board  purview  and  is  addressed  below.    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: 
 

PEB – Dated 20010921  

Condition 

Chronic Low Back Pain 
Left Lateral Leg Numbness 
Status post Lumbar Interbody Fusion L4 to 
S1 for Grade II Spondylolisthesis at L5-S1 
and Retrolisthesis L4-5 

Code 
5295 

Rating 
20%* 

Related 

Related 

↓No Additional MEB/PEB Entries↓ 

Combined:  20% 

VA (1 Mos. Post-Separation) – All Effective Date 20011116 

Condition 

Code 

Rating 

Exam 

Grade II Spondylolisthesis 
L5-S1 with Retrolisthesis at 
L4-5, Status Post Fusion with 
Bone Graft and Residuals 

5299

-

5293 

Tinnitus 

6260 

0% X 1 / Not Service-Connected x 1 

Combined:  30%  

20% 

20011213 

10% 

20011213 
20011213 

*Existed Prior to Service (EPTS)—No Reduction 
 
 
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  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.  The Board’s authority as defined in DoDI 6044.40, however, resides 
in evaluating the fairness of Disability Evaluation System (DES) fitness determinations and rating 
decisions  for  disability  at  the  time  of  separation.    Post-separation  evidence  therefore  is 
probative only to the extent that it reasonably reflects the disability and fitness implications at 
the time of separation.  
 
Chronic  LBP  Condition.    There  were  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 ~3 Mo. Pre-Sep 

Forward flexion to ankles 

VA C&P ~29 days Post-Sep 

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) 

§4.71a Rating 

5292 
5293 
5295 

30⁰ 
- 
- 
20⁰ 
20⁰ 
- 

 

20% 
20% 
20% 

50⁰ 
15⁰ 
25⁰ 
25⁰ 
30⁰ 
30⁰ 
175⁰ 

 

20% 
20% 
20% 

Comment 

Normal gait; decreased 
sensation over left lateral thigh 
area; straight leg raise(SLR) neg; 
muscle strength 5/5; reflexes2+ 
symmetrical; “chronic pain” 

Painful motion in all directions; normal gait;  ; straightening of 
lumbar lordosis; paraspinal muscle spasm at L3-5, L5-S1; + SLR 
60 degrees on left, neg on right at 75 degrees; no weakness, 
fatigue or tenderness; motor 5/5 bilaterally, reflexes 2+, and 
sensory intact; mild difficulty getting on and off examining 
table and changing positions 

 
The chronic back condition was rated IAW the 2002 VASRD standards which are no longer in 
effect.  The 2002 Veterans’ Administration Schedule for Rating Disabilities (VASRD) coding and 
rating standards for the spine, which were in effect at the time of separation, were changed in 
23 September 2002 for code 5293 Intervertebral disc syndrome criteria, and then changed to 
the current §4.71a rating standards in 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.  The pertinent 
5293 criteria also specifically included symptoms compatible with sciatica that were present in 

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this  case.    (NOTE:    The  current  VASRD  general  spine  formula  does  not  include  similar  5293 
criteria). 
 
A lumbar spine X-ray in August 2000 revealed spondylolisthesis and a lumbar spine magnetic 
resonance  imaging  (MRI)  in  November  2000  demonstrated  multilevel  disc  disease  with 
compression of the bilateral exiting nerve roots at L5-S1 and a pars interarticularis defect at the 
L4-5 level.  No further studies were completed after surgery in February 2001.  An orthopedic 
consult  in  September  2000  suspected  herniated  nucleus  propulsus  (HNP)  at  L5-S1  with  left 
radiculopathy.  A pain management consultant noted that pain radiated to left leg down to calf 
however,  physical  exam  findings  revealed  bilateral  normal  strength  with  a  slight  light  touch 
sensation on the left leg in L3-S1.  The CI underwent two steroid injections without pain relief.  
The CI underwent a posterior lumbar interbody fusion (PLIF) procedure in February 2001.  The 
commander’s statement noted that due to an inability to lift more than fifteen pounds along 
with time limits in standing and sitting, the CI was rendered unable to perform all of his MOS 
duties.  The  MEB  narrative  summary  (NARSUM)  approximately  3  months  prior  to  separation 
indicated that the CI had post-operative residual LBP approximately 6 months later.  The MEB 
NARSUM physical exam findings are summarized in the chart above.  The VA Compensation and 
Pension examination (C&P) completed 29 days after separation indicated occasional numbness 
and  pain  radiation  to  the  left  leg,  constant  back  pain  associated  with  weakness,  stiffness, 
fatigue  and  lack  of  endurance.   He  was taking narcotic pain  medication  with  good  response.  
The C&P physical exam findings are summarized in the chart above. 
 
Board  precedent  is  that  a  functional  impairment  tied  to  fitness  is  required  to  support  a 
recommendation  for  addition  of  a  peripheral  nerve  rating  at  separation.    The  sensory 
component noted on the NARSUM examination has no functional implications and neither the 
NARSUM  nor  the  C&P  examination  notes  any  motor  impairment.    Since  no  evidence  of 
functional  impairment  exists  in  this  case,  the  Board  cannot  support  a  recommendation  for 
additional rating based on nerve impairment. 
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
PEB coded the chronic LBP condition as 5295 lumbosacral strain and rated 20% presumably for 
muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing 
position.  The VA coded the Grade II Spondylolisthesis L5-S1 with retrolisthesis at L4-5, status 
post (s/p) fusion with bone graft and residuals condition analogous to 5293 intervertebral disc 
syndrome and rated 20% based on recurring attacks of moderate intervertebral disc syndrome.  
The PEB and the VA chose different coding options, however this did not materially affect the 
rating. Although the C&P examination was completed after separation, it was more complete 
and closest to the date of separation.  Therefore it was adjudged to have the higher probative 
value.  The MEB exam showed chronic pain, however the forward flexion to ankles was difficult 
to quantify since there was no goniometric measurement.  The C&P exam ROM was complete 
and documented flexion limited to 50 degrees and painful motion in all directions along with 
straightening of lumbar lordosis and paraspinal muscle spasm at L3-5 and L5-S1.  This supports 
a 20% rating under multiple different VASRD codes.  While the CI did have spinal fusion surgery, 
he was able to maintain motion in all directions as evidenced on both the NARSUM and the VA 
examinations and therefore, ankylosis was not present.  No appropriate coding scheme results 
in  a  rating  greater  than  20%.    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 LBP 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 

3                                                           PD1200744 

surmise  from  the  record  or  PEB  ruling  in  this  case  that  any  prerogatives  outside  the  VASRD 
were exercised.  In the matter of the chronic LBP 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 
 
 
 
 
 

 

 

X 
Acting Director 
Physical Disability Board of Review 

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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 04 Apr 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: 
 
 
 
 
 
 
 
 
 
 
 
 

-  xformer USMC 
-  xformer USN  
-  xformer USMC 
-  xformer USMC 
-  xformer USN  
-  xformer USMC 
-  xformer USMC 
-  xformer USN  
-  xformer USMC 
-  xformer USN  
-  xformer USMC 
  
 

 
 
 
 
 
 
 
 
 
 
 

 

 

     
 
 
 
 

 
      
 

 
 
 

 
 
 

 
 
 

 
 
 

  x 
  Assistant General Counsel 
     (Manpower & Reserve Affairs) 

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