RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  MARINE CORPS 
SEPARATION DATE:  20011031 

 
NAME:  XX 
CASE NUMBER:  PD1201068 
BOARD DATE:  20130122 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered individual (CI) was an active Sgt/E-5 (3432/Finance Technician), medically separated for 
evidence of a herniated disc at L4 and L5 levels.  The CI first reported non-traumatic low back 
pain (LBP) in 1999.  The CI did not improve adequately with treatment to meet the physical 
requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was 
placed on light/limited duty and referred for a Medical Evaluation Board (MEB).  Lumbar disc 
disease,  plantar  fasciitis,  and  chondromalacia  patella  right  knee  conditions,  identified  in  the 
rating chart below, were also identified and forwarded by the MEB.  The Physical Evaluation 
Board (PEB) adjudicated the lumbar disc condition as unfitting, rated 10%, with application of 
SECNAVINST 1850.4D.  The PEB determined four additional radiographic findings delineated in 
the  chart  below,  as  integral  contributing  elements  of  the  back  pain  condition  not  subject  to 
additional individual disability rating (Category II).  The PEB was silent on the plantar fasciatitis 
and chondromalacia patella conditions.  The CI made no appeals, and was medically separated 
with a 10% disability rating.   
 
 
CI CONTENTION:  “I have been unable to maintain the same physical lifestyle that I have prior to 
my honorable service in the Marines.  I can no longer run, pick up heavy objects And do the 
daily tasks that I once could do without pain.  I have held off surgery for several years however 
that  has  resulted  in  major  nerve  issues  that  I  still  deal  with  daily  and  have  to  rely  on 
medications  And quarterly  nerve blocks.    The  VA  benefits have  greatly helped but  to  be  not 
considered A full medical retierar [sic] was an ungreatful [sic] benefit that I feel should have 
been Awarded years Ago.”     
 
 
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 condition(s) will be reviewed in all cases.  The evidence of a herniated disc at L4 
and  L5  levels  condition  as  requested  for  consideration  meet  the  criteria  prescribed  in  DoDI 
6040.44 for Board purview; and, is addressed below.  The requested nerve condition  will be 
discussed with the disc condition.  The plantar fasciitis and knee conditions are not contended 
by the CI and will not be addressed.  The remaining conditions rated by the VA at separation are 
not within the Board’s purview.  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 Service Board for Correction of Military Records. 
 
 
 
 
 
 
 
 

VA (~1 Mo. Post-Separation) – All Effective Date 20011101 
Condition 

Rating 

Code 

Exam 

Rating 

10% 

Lumbar Spine Degenerative Disk 
Disease with Mild Disk Bulging  
  

5293* 
  

10% 
  

20020322 

Sided 

Is 

the 

RATING COMPARISON:   
 

Code 

5293 

CAT II 

CAT II 

Neural 

Service IPEB – Dated 20010906 
Condition 
Evidence  of  a  Herniated 
Disc  at  Lumbar  Four  and 
Lumbar Five Levels 
At the Lumbar Five, Sacral 
One Level There is a 
Right 
Foraminal Narrowing 
Facet  Hypertrophy 
Noted Bilaterally - The 
Existing  Disc  Lesions  are 
Not Associated with any 
Neurologic Deficit 
Lumbar  Four, 
At 
Lumbar  Five  Level  There 
was  Compression  of  the 
Lateral 
Recesses  
Bilaterally,  Right  Greater 
and 
Than 
the 
Compression 
the 
Lumbar Five Nerve Roots 
Multiple 
Lumbar 
Disc Disease, Including the 
Lumbar  Three,  Lumbar 
Four  and  Lumbar  Five 
Levels 
Plantar Fascitis 
Chondramalacia 
Right Knee 
 
↓No Additional MEB/PEB Entries↓ 
Combined:  10% 

Left 
of 

Patella 

CAT II 

Level 

CAT II 

Not Rated 
Not Rated 
 

NO VA ENTRY 
NSC 
Migraine Headaches 
0% X 4 / Not Service-Connected x 8 
Combined:  20% 

8100 

10% 

 
20020321 

  
 
ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit 
and  vital  fighting  force.    While  the  DES  considers  all  of  the  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.  The DES 
has neither the role nor the authority to compensate members for anticipated future severity 
or  potential  complications  of  conditions  resulting  in  medical  separation  nor  for  conditions 
determined  to  be  service-connected  by  the  Department  of  Veterans  Affairs  (DVA),  but  not 
determined to be unfitting by the PEB.  However, the DVA, operating under a different set of 
laws  (Title  38,  United  States  Code),  is  empowered  to  compensate  all  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’s role is 
confined to the review of medical records and all evidence at hand to assess the fairness of PEB 
rating  determinations,  compared  to  VASRD  standards,  based  on  severity  at  the  time  of 
separation.   
 
Herniated Disc Condition.  The CI developed non-traumatic LBP in 1999.  Magnetic resonance 
imaging obtained in May 2001 revealed a herniated disc at the L4-5 area of the lower back with 
compression of the L5 nerve root.  The CI was treated with multiple modalities with unsustained 
relief of painful symptoms.  At the MEB narrative summary evaluation 25 July 2001, 3 months 
prior to separation, the CI reported being able to run 15 to 20 miles a week.  On physical exam 
kinematics of the back were reported as good.  Motor, sensory and reflex exams were normal.  
Three VA Compensation and Pension (C&P) evaluations were performed, all within 4 months 
after separation.  

2                                                           PD1201068 
 

At  the  C&P  general  evaluation,  21  March  2001,  the  CI  reported  back  pain  while  sitting  or 
standing for long periods with some tingling in the legs.  Gait and posture and motor, sensory 
and reflex exams, were normal.  Neuropathy and spasm were not present.  Spinal ROM was 
reported as reduced to 30 degrees flexion and 10 degrees extension secondary to pain.  At the 
C&P Joint evaluation, 22 March 2001, the CI noted some shooting pains down both legs.  Motor 
strength was normal.  ROM was reported as 90 degrees flexion and 30 degrees extension.  At 
the C&P neurologic evaluation, 28 March 2001, the CI noted daily LBP with standing over 15 
minutes.    Gait,  coordination,  motor,  sensory  and  reflex  exams  were  normal.    Absence  of 
neuropathy was specifically noted.   
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
PEB and VA both rated the back condition 10%, code 5293, intervertebral disc syndrome, mild.  
Under  this  code,  a  higher  rating  of  20%  requires  moderate  disease  with  recurring  attacks  of 
pain.  The Board noted the significant disparity in ROM on the C&P general evaluation (flexion 
30 degrees) and C&P Joint evaluation (flexion 90 degrees) performed one day apart suggesting 
a more severe condition.  The Board opined that the 30 degrees of flexion was inconsistent with 
the  normal  gait  and  posture  on  proximate  examinations  and  that  the  latter  ROM  most 
accurately reflected the condition of the CI at separation.  The Board unanimously agreed the 
preponderance  of  evidence  documented  the  condition  to  be  mild  and  supported  a  rating  of 
10%.    There  was  no  evidence  or  ratable  peripheral  nerve  impairment  in  this  case,  since  no 
motor weakness was present and sensory symptoms had no functional implication.  The Board 
was unable to find a pathway to a higher rating under any other applicable VASRD code.  The 
Board  unanimously  agreed  that  the  Category  II  conditions  listed  by  the  PEB  were  integral 
contributing components of the back condition and not subject to additional disability rating 
IAW §4.14 (Avoidance of pyramiding). After due deliberation, considering all of the evidence 
and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board concluded that there 
was insufficient cause to recommend a change in the PEB adjudication for the back 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.  As discussed above, PEB 
reliance on SECNAVINST 1850.4D for rating the back condition was operant in this case and the 
condition was adjudicated independently of that instruction by the Board.  In the matter of the 
back 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 
Herniated Disc of the Back  

 
 
 
 
 
 
 
 

VASRD CODE  RATING 
5293 
COMBINED 

10% 
10% 

3                                                           PD1201068 
 

The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120620, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 

           xx 
           Acting Director 
           Physical Disability Board of Review 

4                                                           PD1201068 
 

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 26 Feb 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 USN  
-   former USMC 
-   former USMC 
-   former USN  
-   former USMC 
  
 

 
      
 

 
 
 

 
 
 

 
 
 

 
 
 

  xx 
  Assistant General Counsel 
     (Manpower & Reserve Affairs) 

5                                                           PD1201068