RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  MARINE CORPS 
SEPARATION DATE:  20030215 

 
NAME:    
CASE NUMBER:  PD1200981 
BOARD DATE:  20121214   
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty  Lance  Corporal/E-3  (7051/Aircraft  Firefighting  and 
Rescue Specialist), medically separated for L4-5 degenerative disc disease (DDD).  The CI first 
presented with a chief complaint of low back pain on 13 September 2001 after a fireman carry 
while in technical training.  She was treated conservatively, but the pain continued after return 
to her home station.  The CI continued to be treated non-operatively with no change in her 
symptoms.  In July 2002 the possibility of a psychiatric contribution to her condition was raised.  
The CI admitted she had significant depressed mood, and so psychiatry was consulted.  The CI 
was  diagnosed  with  major  depressive disorder  and treated.   The  CI  could not be  adequately 
rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or 
satisfy physical fitness standards.  She was placed on limited duty (LIMDU) and referred for a 
Medical Evaluation Board (MEB).  The MEB also identified and forwarded depressive disorder 
not elsewhere classified, as identified in the rating chart below.  The Physical Evaluation Board 
(PEB)  adjudicated  the  L4-5  DDD  condition  as  unfitting,  rated  10%,  with  application  of  the 
Veteran’s  Affairs  Schedule  for  Rating  Disabilities  (VASRD).    The  remaining  condition  was 
determined to be Category III, which is not separately unfitting and does not contribute to the 
unfitting condition.  The CI made no appeals, and was medically separated.   
 
 
CI  CONTENTION:    “I  have  continued  to  have  problems  w/my  back  (10%),  but  significant 
problems w/depression (0%).  At the time, I was in therapy on meds, and lost weight (down to 
105 – under the minimum), but 0% rated.”  In Block 4 of her application, the CI also writes “I 
was  hospitalized  twice  for  depression  (involuntarily),  and  have  been  on  and  off  meds.    The 
same w/back issues – on and off – since discharge.  I should be on meds still, but my family is so 
against it, I’m not.”  The CI also attached a 1 page memo to her application which was reviewed 
by the Board and considered in its recommendations.   
 
 
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 major depressive disorder condition as requested for consideration meets the 
criteria prescribed in DoDI 6040.44 for Board purview and is addressed below, in addition to a 
review of the ratings for the unfitting low back pain 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 Marine Corps Board for Correction of Military 
Records.   
 
 

 

RATING COMPARISON:   
 

Service IPEB – Dated 20021212 
Condition 

VA (8 Mos. Post-Separation) – All Effective Date 20030216 

Condition 

Code 

Rating 

L4-5 DDD 
Major Depressive D/O 

Code 
5295 
Not Unfitting 

Rating 
10% 

↓No Additional MEB/PEB Entries↓ 

Combined:  10% 

DDD L4-5 Low Back 
Depression 
Tinnitus 

0% 
0% 
10% 
0% X 4 (Includes Above) / Not Service-Connected x 7 

5293-5243 

9434 
6260 

Combined:  10% 

Exam 

20031023 
20031022 
20031023 
20031023 

 
 
ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that suggests ratings should 
have  been  conferred  for  other  conditions  documented  at  the  time  of  separation.    The  CI’s 
contention  indicates that  she  was  “rated  0%”  for  her  mental  health  condition;  however,  the 
PEB found the depressive disorder as Category III (not separately unfitting) and therefore not 
rated or compensable by DoD.  The VA rating of 0% was noted, but does not impact fitness for 
duty.  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.  While the DES considers 
all  of  the  service  member's  medical  conditions,  compensation  can  only  be  offered  for  those 
medical conditions that cut short a member’s career, and then only to the degree of severity 
present at the time of final disposition.  However, the Department of Veterans Affairs (DVA), 
operating  under  a  different  set  of  laws  (Title  38,  United  States  Code),  is  empowered  to 
compensate  service-connected  conditions  and  to  periodically  re-evaluate  said  conditions  for 
the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary 
over  time.    The  Board  utilizes  DVA  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 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.   
 
L4-5 Degenerative Disc Disease Condition.  The range-of-motion (ROM) evaluation in evidence 
which the Board weighed in arriving at its rating recommendation, and other documentation of 
additional ratable criteria, are summarized in the chart below. 
 

Thoracolumbar ROM 

(Measurements in Degrees) 

MEB ~5 Mo. Pre-Sep 

VA C&P ~8 Mo. Post-Sep 

Flexion (90 Normal) 

Extension (30) 
R Lat Flexion (30) 
L Lat Flexion (30) 
R Rotation (30) 
L Rotation (30) 
Combined (240) 

Comment 

“Decreased extension 
secondary to pain” 

+ Tenderness; + SLR bilaterally; 

mild scoliosis; normal gait 

§4.71a Rating 

10% 

90 
40 
35 
35 
- 
- 
- 

spasm 

0% 

Sl T-spine scoliosis; no tender or 

 
At  the  MEB  exam,  performed  5  months  prior  to  separation  the  CI  reported  continuing  pain 
without  relief  from  facet  injections  or  non-surgical  therapy.    There  were  no  fix  neurologic 
deficits  and  the  CI  had  concomitant  depression.    The  CI  reasonably  refused  radiofrequency 
ablation.  The back exam is summarized above.  Imaging indicated normal plain films and bone 
scan,  with  magnetic  resonance  imaging  (MRI)  findings of DDD  at  L4-5 with  a  mild  disc  bulge 
without nerve root or canal impingement.  There was also noted facet joint arthropathy.   
 

2                                                           PD1200981 

 

At the VA Compensation and Pension (C&P) exam performed 8 months after separation, the CI 
reported complaints of pain across the low back and buttocks with pain and numbness down 
the posterior right leg to the sole and toes with weakness in the leg and foot drop with running.  
The CI also indicated bladder incontinence with the pain.  The VA exam is summarized above, 
with no documented abnormalities.   
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
2003  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 to the 
current §4.71a rating standards in 20030926.  The 2003 standards for rating based on range of 
motion  (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.  For 
the  reader’s  convenience,  the  2003  rating  codes  under  discussion  in  this  case  are  excerpted 
below. 
 

5292 Spine, limitation of motion of, lumbar: 

5293 Intervertebral disc syndrome: 
 

Severe........................................................ 40 
Moderate...................................................... 20 
Slight........................................................ 10 
/// deleted//  
Note (1): For purposes of evaluations under 5293, an 
incapacitating episode is a period of acute signs and 
symptoms due to intervertebral disc syndrome that requires 
bed rest prescribed by a physician and treatment by a physician. 

5294 Sacro-iliac injury and weakness: 
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 osteoarthritic 
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 
With slight subjective symptoms only.......................... 0 

 
The VA coding used the new spine rules which were not effective until after separation, and 
their rating percentage was for an improved back exam.  The MEB exam was closest to the date 
of  separation  and  had  the  highest  probative  value  for  rating.    There  was  clear  evidence  of 
tenderness and characteristic pain on motion meeting the 10% rating criteria.   
 
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 low back condition.  The Board concluded therefore that this condition 
could not be recommended for additional disability rating.   
 
Contended  PEB  Conditions.    The  Board’s  main  charge  is  to  assess  the  fairness  of  the  PEB’s 
determination  that  the  major  depressive  disorder  condition  was  not  unfitting.    The  Board’s 
threshold  for  countering  fitness  determinations  is  higher  than  the  VASRD  §4.3  (reasonable 
doubt)  standard  used  for  its  rating  recommendations,  but  remains  adherent  to  the  DoDI 
6040.44 “fair and equitable” standard.  The major depressive disorder condition was not part of 
the CI’s LIMDU or implicated in the non-medical assessment (NMA) commander’s statement.  It 
was reviewed by the action officer and considered by the Board.  There was no performance 
based  evidence  from  the  record  that  this  condition  significantly  interfered  with  satisfactory 
duty performance.   
 

3                                                           PD1200981 

 

  The  CI’s  contention  dated  June  2012  noted  two 

The  psychiatric  narrative  summary  (NARSUM)  addendum  diagnosed  mild  major  depressive 
disorder with Global Assessment of Functioning (GAF) of 65 in the past year and a current 60, 
indicating mild to moderate symptoms and the CI was started on medications.  By the VA exam 
8 months post-separation, the CI was no longer taking medication, had depressive symptoms 
leading  to  a  GAF  of  55-60  indicating  moderate  symptoms,  and  was  working  two  jobs.    The 
examiner’s  history  indicated  the  CI  had  decreased  symptoms  while  undergoing  weekly 
counseling. 
involuntary  psychiatric 
hospitalizations which were not noted in the evidence of record.   
 
After  due  deliberation  in  consideration  of  the  preponderance  of  the  evidence,  the  Board 
concluded  that  there  was  insufficient  cause  to  recommend  a  change  in  the  PEB  fitness 
determination  for  the  contended  major  depressive  disorder  condition  and  so  no  additional 
disability rating is 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 L4-5 DDD condition and IAW VASRD §4.71a, the Board 
unanimously recommends no change in the PEB adjudication.  In the matter of the contended 
major depressive disorder condition, the Board unanimously agrees that it cannot recommend 
it for additional disability rating.  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 

10% 
10% 

L4-5 degenerative disc disease 

 
 
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 
 
 
 
  
 
 
 

 

           President 
           Physical Disability Board of Review 

4                                                           PD1200981 

 

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 31 Dec 12 
 
      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  
 
 
 
 
 
 
 

  
Assistant General Counsel 
 (Manpower & Reserve Affairs) 

 
      
 

5                                                           PD1200981