RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  ARMY   
SEPARATION DATE:  20030719 

 
NAME:  XXXXXXXXXXXX 
CASE NUMBER:  PD1200758 
BOARD DATE:  20130130 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty  SPC/E-4  (52D10/Power  Generator  Equipment 
Repairman), medically separated for low back pain (LBP) on forward motion post disc surgery 
and  L4/L5  disc  fusion.    The  LBP  on  forward  motion  post  disc  surgery  and  L4/L5  disc  fusion 
condition  could  not  be  adequately  rehabilitated  to  meet  the  physical  requirements  of  his 
Military  Occupational  Specialty  or  satisfy  physical  fitness  standards.    He  was  issued  a 
permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded 
no other conditions for Physical Evaluation Board (PEB) adjudication.  The PEB adjudicated the 
LBP on forward motion post disc surgery and L4/L5 disc fusion condition as unfitting, rated 10%, 
with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI initially 
appealed to the Formal PEB (FPEB) but subsequently withdrew his request and agreed with the 
decision of the PEB.  He was medically separated with a 10% disability rating. 
 
 
CI CONTENTION:  “The rating should have been higher because of the severity.” 
 
 
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  LBP 
condition, and by implication the right foot numbness, requested for consideration meet the 
criteria  prescribed  in  DoDI  6040.44  for  Board  purview  and  are  addressed  below.    The  other 
conditions rated by the Department of Veterans Affairs at the time of separation or retroactive 
to  the  time  of  separation  are  not  within  the  Board’s  purview.    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 20030116 
Condition 
LBP  s/p  Disc  Surgery  & 
L4/L5 Fusion …  

Code 
5299-5295 

Rating 
10% 

↓No Additional MEB/PEB Entries↓ 

VA (2 Mos. Post-Separation) – All Effective Date 20030720 
Condition 
DDD s/p Lumbar Fusion w/Pain 
Rt Foot Radiculopathy  
Lt Foot Gout 
HTN w/ Dizziness 
0% X 1* / Not Service-Connected x 0 
Combined:  40% 

Code 
5293-5292 
8521 
5017 
7101 

Rating 
10% 
10%* 
20% 
10% 

Exam 
20030917 
20090409* 
20030917 
20030917 
 

Combined:  10% 
*Granted  by  BVA  Decision  reported  in  VARD  20100104  retroactive  to  20030720;  also  granted  LLE  radiculopathy  @  0% 
retroactive  to  20030720.    Original  VARD  20031022  deferred  rating  rt  foot  numbness.    Subsequent  VARD  20040113  denied 
service connection for rt foot numbness.  VARD 20090619 granted B/L LE Radiculopathy secondary to lumbar DDD S/P Fusion 
@10% based on 20090409 C&P.  Combined rating on all of these VARDS was 40%. 

 
ANALYSIS SUMMARY:  The PEB combined LBP and right foot radiculopathy ["numbness"] as the 
single  unfitting  and  solely  rated  condition  using  code  5299-5295.    However,  the  Board  must 
apply  separate  codes  and  ratings  in  its  recommendations,  if  compensable  ratings  for  each 
condition  are  achieved  IAW  VASRD  §4.71a.    If  the  Board  judges  that  two  or  more  separate 
ratings  are  warranted  in  such  cases,  however,  it  must  satisfy  the  requirement  that  each 
“unbundled” condition was unfitting in and of itself.  Not uncommonly this approach by the PEB 
reflects its judgment that the constellation of conditions was unfitting; and, that there was no 
need for separate fitness adjudications, not a judgment that each condition was independently 
unfitting.  Thus the Board must exercise the prerogative of separate fitness recommendations 
in  this  circumstance,  with  the  caveat  that  its  recommendations  may  not  produce  a  lower 
combined rating than that of the PEB.   
 
Low Back Pain on Forward Motion Post Disc Surgery and L4/L5 Disc Fusion Condition.  The CI 
first noted LBP in 1999 after lifting heavy equipment, and he reinjured his back in 2000.  Over 
time, this pain became progressively worse despite treatment including physical therapy (PT), 
medications, spine injections, nerve blocks, radiofrequency ablation, intradiscal electro-thermal 
ablation and ultimately spine fusion on 13 May 2002.  A discogram was positive for L5-S1 disc 
disease  on  14  August  2001.    A  nerve  conduction  velocity/electromyogram  (NSV/EMG) 
performed on 8 January 2002 showed a mild L5-S1 radiculopathy.  He had multiple level disc 
disease with disc bulges confirmed via X-rays and magnetic resonance imaging, the latter done 
on 19 March 2002.  He continued to have pain, required the use of a cane and was diagnosed 
with a failed back syndrome.  A permanent L3 profile was issued and the CI referred to an MEB.  
The MEB examination was on 25 October 2002, almost 9 months prior to separation.  The CI 
reported  right foot  dysthesia  and  back  pain  with  activity.    On  examination,  he  was  noted to 
have  normal  sensation,  but  an  absent  right  Achilles  reflex.    The  range-of-motion  (ROM)  was 
slightly decreased in rotation and flexion.  The narrative summary was dictated on 2 January 
2003 (6 months prior to separation).  The CI complained of back pain and right foot numbness, 
but denied incontinence.  He was unable to squat or stoop.  He obtained relief by lying on his 
side and sleeping after taking an over the counter sleeping aid.  He had an abnormal gait and 
walked with cane.  He had normal reflexes other than the Achilles reflex.  Strength was normal 
in his lower extremities.  There was a decrease in sensation on the outside of his right foot.  
There was no mention of spasm.  Signs of non-organic pain were absent.  The ROM was slightly 
reduced in extension, lateral bending and flexion.  The CI also underwent an evaluation by PT 
on 26 February 2003 (4 months prior to separation).  He was noted to have a slow gait, stooped 
posture,  but  normal  transition  movements  and  was  removing  and  putting  on  his  shoes  and 
jacket normally.  His flexion was limited to hands to his knees and extension was decreased by 
50%, but the contour was normal.  He walked with a cane and had a stooped gait.  Heel and toe 
walk were normal and there was no limp.  The right ankle reflex was diminished, but present.  
His strength was normal.  No comment was made on sensation.  On X-ray, he was noted to 
have normal alignment with good hardware placement.  At the VA Compensation and Pension 
evaluation on 17 September 2003 (2 months after separation), the CI complained of numbness 
in the right foot and of pain if he walked or stood too long.  He was able to flex his back to 70 
degrees and extend to 15 degrees.  A straight leg raise provoked pain in his legs.  His right heel 
reflex was decreased.  The examiner was unable to confirm the numbness via testing.  No other 
abnormalities were noted.  No specific comment was made on the motor examination.   
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
PEB rated the LBP condition 10% and coded it 5299-5295, analogous to lumbosacral strain.  The 
VA rated the degenerative disc disease condition 10% and coded it 5293-5292, intervertebral 
disc syndrome and lumbar limitation of motion.  The Board noted that these codes have been 

superseded and are no longer in use.  However, 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 
noted  that  the  CI  consistently  had  decreased  ROM  of  the  lumbar  spine.    His  strength  was 
normal when documented, although a mild motor radiculopathy had been noted on the EMG 
prior to the fusion.  The right foot numbness was not consistently verified on exam.  His need 
for a cane appeared to be related to back pain.  There is no record indicating that the right foot 
numbness interfered with the wear of military equipment.  The Board considered if the right 
foot numbness was a separately unfitting condition for rating.  It noted that while this was a 
consistent  subjective  complaint,  it  was  not  in  evidence  on  every  examination  and  that  there 
was  no  evidence  of  duty  impairment  from  it  separate  from  the  back  condition.    The  Board 
determined that this was not a separately unfitting condition.  The Board reviewed the different 
examinations  and  concluded  that  the  repeated  documentation  of  decreased  ROM  of  the 
lumbar  spine,  coupled  with  the  fact  the  CI  needed  a  cane  to  ambulate  and  had  a  stooped 
posture supports the conclusion that the CI had moderate limitation of motion of the spine and 
would  rate  20%  under  code  5292.    The  Board  then  considered  the  coding  options  5293  and 
5295.  The Board notes that there is no documentation in the service treatment records (STRs) 
of  incapacitating episodes  related to the  back  condition  to  support  even  a  10%  rating  under 
code 5293.  The STRs do not document persistent muscle spasm or loss of lateral spine motion 
to support a higher rating under analogous code 5295.  The records do, however, repeatedly 
document  characteristic  pain  on  motion.    Accordingly  the  Board  concluded  that  the  back 
condition would rate 10% using the code 5295.  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% coded 5292 for the 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 
surmise  from  the  record  or  PEB  ruling  in  this  case  that  any  prerogatives  outside  the  VASRD 
were  exercised.    In  the  matter  of  the  LBP  condition,  the  Board  unanimously  recommends  a 
disability  rating  of  20%,  coded  5292  IAW  VASRD  §4.71a.    In  the  matter  of  the  (implied) 
contended  right  foot  numbness  condition,  the  Board  unanimously  recommends  that  this 
cannot be added as separately unfitting and ratable.  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:   
 

VASRD CODE  RATING 
5292 
COMBINED 

20% 
20% 

UNFITTING CONDITION 
Low Back Pain 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120607, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 

 
 
 
 
 
 
 
 

           XXXXXXXXXXXXXXXXXXX, DAF 
           Director 
           Physical Disability Board of Review 

 

 
 
 

SFMR-RB 
 
 
 
 
MEMORANDUM FOR Commander, US Army Physical Disability Agency  
(TAPD-ZB / XXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557 
 
 
SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation  
for XXXXXXXXXXXXXXXXXX, AR20130003101 (PD201200758) 
 
 
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 
 
 
 

     XXXXXXXXXXXXXXXXXXX 
     Deputy Assistant Secretary 
         (Army Review Boards)