RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  ARMY 
SEPARATION DATE:  20021231 

 
NAME:  XXXXXXXXXXXXXXXX  
CASE NUMBER:  PD1200746 
BOARD DATE:  20130109 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty  SGT/E-5  (95B/Military  Policeman),  medically 
separated for a low back (LBP) condition.  He did not respond adequately to surgical and post 
rehabilitative  treatment  to  meet;  the  physical  requirements  of  his  Military  Occupational 
Specialty;  worldwide  deployment  standards  or  physical  fitness  standards.    He  was  issued  a 
permanent L3 profile and referred for a Medical Evaluation Board (MEB).  LBP was forwarded to 
the  Physical  Evaluation  Board  (PEB)  IAW  AR  40-501.    No  other  conditions  appeared  on  the 
MEB’s submission.  The PEB adjudicated the low back condition as unfitting, rated 10%, with 
application of the Department of Defense Instruction (DoDI) 1332.39 and AR 635-40, appendix 
B-39.  The CI made no appeals and was medically separated with a 10% disability rating. 
 
 
CI  CONTENTION:    “My  initial  rating  and  after  further  review  2nd  rating  was  higher  than  the 
medical board.” 
 
 
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.    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 Army Board for Correction of Military Records. 
 
 
RATING COMPARISON: 
 

Service IPEB – Dated 20021112 
Condition 
Low  Back 
neurologic abnormality 

Pain  w/o 

Code 

5299-5295 

Rating 

10% 

No Additional MEB/PEB Entries 

for 
and 

Lumbar 

Rating 

Exam 

surgery 
disc 

VA  (1  Mos.  Post-Separation  and  5+  years  for  radiculopathy)  –  All 
Effective Date 20030101 and 20030811 
Condition 
Code 
S/P 
herniated 
spondylolisthesis 
L5-S1 radiculopathy L foot/toes 
L5-S1 radiculopathy R foot/toes 
Hypertension 
GERD 
0% X 3 / Not Service-Connected x 4 
Combined:  70% 

20081203 
20081203 
20030203 
20030203 
20030203 

8799-8721 
8799-8721 
7101 
7346 

10%** 
10%** 
10% 
10% 

5293-5241 

40%* 

20030203 

Combined:  10% 
*Condition originally rated 20% and increased after an appeal effective DOS 
**Left and Right foot radiculopathy added on 20090605 VARD with effective date of 20081203 then was back dated to DOS on 
the 20111020 Appeal decision.  Rated at 10% and was increased to 20% effective 20090504. 
 
 

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that his VA rating for his 
service--connected condition is higher than the PEB’s.  The Board must emphasize that its rating 
recommendations are premised on severity of the condition at the time of separation.  The VA 
ratings  which  the  Board  considers  in  that  regard  are  those  rendered  most  proximate  to 
separation.    The  Disability  Evaluation  System  has  neither  the  role  nor  the  authority  to 
compensate  service  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).    The  Board’s  operative  instruction,  DoDI  6040.44, 
specifies  a  12-month  interval  for  special  consideration to DVA findings.   This  does  not  mean 
that the later DVA evidence was disregarded, but the Board’s recommendations are directed to 
the severity and fitness implications of conditions at the time of separation. 
 
Low  Back  Condition.    The  CI  injured  his  back  playing  softball  in  1998  and  was  treated 
conservatively with on and off pain for the next few years.  In 2001, his pain worsened and he 
additionally  had  radicular  symptoms  of  the  right  buttocks,  groin  and  calf  pain,  which  was 
aggravated with bending and stooping.  After a trial of physical therapy (PT) his condition did 
not  improve  and  he  was  referred  to  orthopedics.    Orthopedics  performed  two  surgical 
procedures in February and March of 2002 for a magnetic resonance imaging confirmed L5-S1 
herniated  nucleus  pulposus  (HNP)  with  displacement  of  the  right  S1  nerve.    The  surgical 
procedures included; a L5-S1 diskectomy followed by epidural steroid injections, followed by a 
spinal  fusion  due  to  spondylolisthesis  and  compression  of  his  right  S1  nerve  root.    The  CI 
suffered a postoperative tear in the lining of the spinal canal, which responded to a blood patch 
and fatty tissue suture surgical repair procedure.  The CI continued to have intermittent back 
pain with temporary improvement in his radicular symptoms, which resurfaced without trauma 
as  intermittent  left  lower  extremity  pain.    The  profile  limitations  included:    no  prolonged 
standing or sitting greater than 20 minutes without the ability to move around and seek relief, 
no  lifting  greater  than  20  pounds  and  the  bicycle  fitness  test  option.    The  commander’s 
statement corroborated his medical condition and documented the CI inability to wear a pistol 
belt  and  was  on  and  off  convalescent  leave  for  the  last  13  months.    There  were  four 
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: 
 
Thoracolumbar ROM  MEB ~5.5 Mo. Pre-Sep 
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) 

PT ~5 Mo. Pre-Sep  VA C&P ~1 Mo. Post-Sep 
20⁰ 
5⁰ 
30⁰ 
20⁰ 
- 
- 
 

20⁰ 
5⁰ 
- 
- 
- 
- 
- 

Comment 

TTP;  neg  SLR;  normal 
gait 

Non  antalgic  gait; 
TTP 

20% vs.40% 

§4.71a Rating 
 
At  the  MEB  exam,  the  CI  reported  severe  LBP  aggravated  with  standing,  prolonged  sitting, 
exertional ambulation of any kind with occasional low left extremity radicular symptoms.  The 
MEB physical exam demonstrated paravertebral muscle tenderness; negative straight leg raise 

20% vs. 40% 

25⁰ 
15⁰ 
22⁰ 
18⁰ 
40⁰ 
40⁰ 
160⁰ 
to 
Tenderness 
percussion; 
normal 
posture;  w/o  antalgic 
gait 
20% vs. 40% 

VA C&P ~24 Mo. Post-Sep 
30⁰ 
10⁰ 
20⁰ 
30⁰ 
45⁰ 
35⁰ 
170⁰ 
Painful motion, moderate 
muscle  spasm,  flattening 
of 
lordosis; 
posture;  w/o 
normal 
antalgic gait 
40% 

lumbar 

(SLR)  testing;  normal  bilateral  lower  extremity  neuromuscular  findings;  normal  gait  and 
stiffness  when  going  from  a  sitting  to  a  standing  position  secondary  to  pain. 
  An 
electrodiagnostic study revealed a mild right L5-S1 radiculopathy.  The examiner opined the CI 
was  no  longer  able  to  participate  in  the  military  police’s  aggressive  lifestyle  duties.    The 
examiner  also  documented  that  the  CI  required  narcotic  pain  relief  medication  many  times 
throughout  the  week  and  the  CI  experienced  pain  while  sitting  at  his  disk  for  a  prolonged 
period.    The  examiner  opined  his  condition  was  stable  and  may  improve.    During  the  VA 
Compensation and Pension exam a month after separation the CI reported:  morning pain 2-4 
out of 10 in intensity, which rose to 8 of 10 during the day.  His pain was aggravated by standing 
or sitting greater than 15 minutes and while bending, which he avoided at all costs.  He had no 
flare-ups and worked as an insurance salesman without loss of work.  This exam demonstrated 
tenderness; back pain, but no radicular pain; positive left SLR; normal right SLR; normal gait, 
station,  heel  and  toe  walk;  normal  squat  maneuver  and  normal  bilateral  lower  extremity 
neuromuscular findings.  X-rays revealed a post surgical spine.  The examiner diagnosed status 
post  (s/p)  lumbar  surgery  for  HNP  and  spondylolisthesis;  and,  opined  the  CI  had  severe 
functional loss due to pain. 
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
Board notes that VA exam a month post separation was complete, well documented, contained 
similar  ratable  data  to  the  MEB  and  PT  exams  and  was  most  proximate  to  the  date  of 
separation.  Therefore, the Board assigned more probative value to this VA exam.  The PEB and 
VA  chose  different  coding  options  for  the  low  back  condition,  but  used  the  2002  Veterans 
Affairs Schedule for Rating Disabilities (VASRD) for rating the spine, which were in effect at the 
time of separation.  The 2002 VASRD added incapacitating episodes 5293 (Intervertebral disc 
syndrome) on 23 September 2002 to the spine ratings and then was modified to the current 
§4.71a rating standards on 26 September 2003.  The 2002 spine rating standards are subjective 
to the rater’s opinion regarding degree of severity; whereas the current VASRD spine standards 
specify the objective degree of ROM impairment.  For the reader’s convenience, relevant 2002 
rating codes are excerpted below: 
 

5292 Spine, limitation of motion of, lumbar 
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 ………………..….……….……………………………… 60 
Severe; recurring attacks, with intermittent relief ……………..…….………..….………………………. 40 
Moderate; recurring attacks ……………………………….……………............…................................. 20 
Mild ……………………………………………………………..…………….….………………………………………………. 10 
Postoperative, cured …………………………………….………..……………....…………………………………….. 0 
 
5294 Sacro-iliac injury and weakness: [Defaults to 5295 criteria below.] 
 
5295 Lumbosacral strain: 
Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign,  
marked limitation of forward bending in standing position, loss of lateral motion  
with osteo-arthritic changes, or narrowing or irregularity of joint space, or some 

of the above with abnormal mobility on forced motion ...................................................... 40 
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, 
in standing' position ............................................................................................................. 20 
With characteristic pain on motion ..................................................................................... 10 

 
The PEB applied DoDI 1332.39 (E2.A1.1.20.2) and AR 635.40 (B-39) to arrive at a 10% rating.  
However,  this  10%  rating  is  inconsistent  with  2002  VASRD  §4.71a  standards  based  on  the 
limited flexion exam.  The VA’s original rating decision coded 5293-5241 analogous to the new 
§4.71  VASRD  code  5241  (Spinal  fusion)  utilizing  the  old  spine  code  5293  (Intervertebral  disc 
syndrome) for a 20% rating for moderate limitation of motion of the lumbar spine.  This was 
increased  to  a  40%  disability  rating  for  severe  limitation  of  motion  through  the  DVA  appeal 
process.  The Decision Review Officer cited a higher rating above 40% was not warranted for 
either the 5293 code or IAW VASRD §4.10 (Functional impairment).  There was no evidence of 
pronounced intervertebral disc syndrome, frequent hospitalization or marked interference with 
employment.  The Board considered the PEB’s analogous rating under the 5295 code from the 
2002 VASRD.  A 20% rating for 5295 requires “muscle spasm on extreme forward bending, loss 
of  lateral  spine  motion,  unilateral,  in  standing  position.”    The  MEB  exam  is  silent  to  muscle 
spasm  and  documents  loss  of  forward  motion  not  lateral  spine  motion  loss;  therefore,  the 
Board agreed this was not the best code to capture the CI’s disability.  The Board considered 
the  5293  code,  which  fit  with  the  CI’s  underlying  pathology,  and the  5292  code.    The  Board 
agreed while the 5293 code was clinically specific for the pathology of this case, the 20% rating 
for  “moderate,  recurring  attacks”  could  not  be  justified  based  on  an  absence  of  objective 
neurologic  findings  for disc  disease  on  the  MEB  exam  or  the post  separation  VA  exam.    The 
Board notes one extensive convalescent leave documented in the prior to separation treatment 
records  corroborated  by  the  commander’s  statement  could  justify  a  40%  rating  for  severe, 
recurring attacks with intermittent relief; however, the evidence reflects this leave is used in 
conjunction with recuperation from surgery not from disc disease requiring bed rest.  Finally 
the Board considered the evidence for limitation of motion.  The Board agreed that the limited 
flexion ROM impairment in evidence at the MEB examination is sufficient justification for either 
the 20% or 40% rating under the 5292 code.  The thoracolumbar ROM chart corroborates this 
limited flexion finding in both the 12 months prior and post separation periods. 
 
A lengthy deliberation ensued as to the appropriate rating for the CI’s low back disability.  The 
Board assigned probative value to the initial VA exam due to its proximity to separation and 
similarity to the ratable evidence found in the MEB and PT exams.  The Board considered lateral 
spine motion and the combined ROM found in the VA exam.  Exam findings showed a slight loss 
of ROM, a normal gait, station, squat maneuver and heel and toe walk, while the CI work as an 
insurance man without loss of time from work or flare-ups.  The Board agreed with this ratable 
evidence;  that  a  20%  rating  best  fits  the  disability  of  this  low  back  condition.    The  Board 
considered whether additional rating could be recommended under a peripheral nerve code for 
the  residual  sciatic  radiculopathy  at  separation.    Board  precedent  requires  a  functional 
impairment  tied  to  fitness  to  justify  a  recommendation  to  add  a  peripheral  nerve  rating  to 
disability in spine cases.  The pain component of a radiculopathy is subsumed under the general 
spine  rating  as  specified  in  §4.71a.    The  subjective  radicular  symptoms  and  the  positive 
objective  electrodiagnostic  S1  radiculopathy  evidence 
in  this  case  has  no  functional 
implications;  and  no  motor  weakness  is  in  evidence  consistent  with  the  S1  nerve.    Since  no 
evidence  of  functional 
in  this  case,  the  Board  cannot  support  a 
recommendation  for  additional  rating  based  on  peripheral  nerve  impairment.    After  due 
deliberation,  considering  all  of  the  evidence  and  mindful  of  VASRD  §4.3  (Resolution  of 
reasonable doubt), the Board recommends a disability rating of 20% for the low back condition. 

impairment  exists 

 
 
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.  As discussed above, PEB 
reliance  on  DoDI  1332.39  for  rating  low  back  condition  was  operant  in  this  case  and  the 
condition was adjudicated independently of that instruction by the Board.  In the matter of the 
low back 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: 
 

UNFITTING CONDITION 
Low Back Pain without Neurologic Abnormality 

VASRD CODE  RATING 
5292 
COMBINED 

20% 
20% 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120611, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 
 

 

           xxxxxxxxxxxxxxxxxxxxx, DAF 
           Acting President 
           Physical Disability Board of Review 

 
 
 

SFMR-RB 
 
 
 
 
MEMORANDUM FOR Commander, US Army Physical Disability Agency  
(TAPD-ZB / xxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557 
 
 
SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation  
for xxxxxxxxxxxxxxxxxxxx, AR20130003057 (PD201200746) 
 
 
1.  I have reviewed the enclosed Department of Defense Physical Disability Board of 
Review (DoD PDBR) recommendation and record of proceedings pertaining to the 
subject individual.  Under the authority of Title 10, United States Code, section 1554a,   
I accept the Board’s recommendation to modify the individual’s disability rating to 20% 
without recharacterization of the individual’s separation.  This decision is final.   
 
2.  I direct that all the Department of the Army records of the individual concerned be 
corrected accordingly no later than 120 days from the date of this memorandum.    
 
3.  I request that a copy of the corrections and any related correspondence be provided 
to the individual concerned, counsel (if any), any Members of Congress who have 
shown interest, and to the Army Review Boards Agency with a copy of this 
memorandum without enclosures. 
 
 BY ORDER OF THE SECRETARY OF THE ARMY: 
 
 
 
 
Encl 
 
 
 

     xxxxxxxxxxxxxxxxxxxxxx 
     Deputy Assistant Secretary 
         (Army Review Boards)