RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

SEPARATION DATE:  20020815 

 
NAME: XXXXXXXXXXXXXXXXXXXXXXX                                         BRANCH OF SERVICE:  ARMY 
CASE NUMBER:  PD1201106 
BOARD DATE:  20121102 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered individual (CI) was an active duty SSG/E-6 (92Y30 / Unit Supply Specialist), medically 
separated  for  degenerative  disc  disease  (DDD)  with  low  back  pain  and  sciatic  pain  without 
neurologic  abnormality  or  documented  chronic  paravertebral  muscle  spasms  on  repeated 
examinations,  with  characteristic  pain  on  motion.    Despite  pain  management,  surgery,  and 
physical  therapy  the  CI  did  not  improve  adequately  with  treatment  to  meet  the  physical 
requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  
She was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB).  
Major  depressive disorder  condition,  identified  in  the  rating  chart below,  was  also  identified 
and  forwarded  by  the  MEB.    The  Physical  Evaluation  Board  (PEB)  adjudicated  the  low  back 
condition  as  unfitting,  rated  10%  with  application  of  the  Department  of  Defense  Instruction 
(DoDI) 1332.39.  The remaining condition was determined to be not unfitting.  The CI made no 
appeals, and was medically separated with a 10% disability rating. 
 
 
CI CONTENTION:  “I feel this rating should be changed to medical retirement because of my 
medical condition I obtained from the military has worsen and I have developed more medical 
problems over the years in reference to disk degenerated disease. I have been in and out of 
medical facilities receiving medical treatments and medications to try and stay physically sane 
from  the  all  physical  ailments  that  I  obtained  in  the  military.    The  surgery  (ALIF)  that  was 
performed on me in October 2001 repaired a herniated disc and evidently the surgeon left a 
bulging disc in L5-S1 area please see the radiology report date April 2002; in which caused more 
complications later after I was medically discharged I have suffered more lower back and neck 
pain  constantly  over  past  16  years.  As  stated  in  my  PEB  attachment  I  was  diagnosed  by  the 
military of having disc degenerated disease in several areas that's causing constant pain and 
spine problems. I was diagnosed with high blood pressure and irritable bowel syndrome as well 
other  medical  conditions  that  was  not  considered  military  related.  I  would  ask  for  careful 
consideration when evaluating my packet for a full medical retirement.” 
 
 
SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in the 
Department of Defense Instruction (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.    The  back  condition  as  requested  for  consideration  and  the  depression  condition 
alluded to in the application meet the criteria prescribed in DoDI 6040.44 for Board purview; 
and, are addressed below, in addition to a review of the ratings for the unfitting condition.  The 
remaining  conditions  rated  by  the  VA  at  separation  and  listed  on  the  DD  Form  294  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 Army Board for Correction of Military Records. 

 
 
 
RATING COMPARISON:   
 

Service IPEB – Dated 20020719 
Condition 

Code 

Degenerative Disc Disease 
w/ Low Back and Sciatic Pain 
Major Depressive Disorder 

5299-5295 

Not Unfitting 

Ratin
g 
10% 

No Additional MEB/PEB Entries 

Combined:  10% 

VA (3 Mos. Pre -Separation) – All Effective Date 20020816 

Condition 

Code 

Rating 

Exam 

Early Degenerative Disc Disease 
L-Spine, S/P Fusion L4-L5 
Depressive Disorder 
DJD Changes C-Spine 
Degenerative T-Spine 
Hypertension 
Irritable Bowel Syndrome 

5010-5295 

5010-5290 

9434 

5291 
7101 
7319 

0% X 6 / Not Service-Connected x 4 

Combined:  50% 

20%* 
NSC* 
10% 
10% 
10% 
10% 

20020522 
20020522 
20020522 
20020522 
20020522 
20020522 
20020522 

* No change to rating or service connection in subsequent VARDs. 
 
 
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  Veteran  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.    The  Board  notes  that  the  2002  Veteran  Administration  Schedule  for  Rating 
Disabilities  (VASRD)  standards  for  the  spine,  which  were  in  effect  at  the  time  of  separation, 
were changed to the current §4.71a rating standards in September 2003.  The 2002 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.  When older cases have goniometric measurements in evidence 
and when the VASRD 2002 code 5292 (for limitation of motion, lumbar spine) is applicable, the 
Board reconciles (to the extent possible) its opinion regarding degree of severity for 5292 with 
the objective thresholds specified in the current §4.71a general rating formula for the spine.  
This promotes uniformity of its recommendations for different cases from the same period and 
more  conformity  across  dates  of  separation,  without  sacrificing  compliance  with  the  DoDI 
6040.44 requirement for rating IAW the VASRD in effect at the time of separation. 
 
Degenerative Disc Disease with Low Back Pain and Sciatic Pain without Neurologic Abnormality 
Condition.    The  CI  had  a  history  of  chronic  intermittent  low  back  pain  since  1995.    She 
subsequently developed severe low back pain associated with bilateral sciatic pain refractory to 
conservative management.  A discogram July 2001 was considered positive at the L4-5 disc and 
she underwent back surgery on 9 October 2001 with L4-5 discectomy, and fusion.  Her pain did 
not  improve  sufficiently  for  return  to  full  duty.    At  the  neurosurgery  MEB  consult  narrative 
summary (NARSUM), dated 12 March 2002, based on the neurosurgery examination performed 

on  7  March  2002,  the  CI  complained  of  continued  radiating  pain  into  both  legs  without 
complaints regarding gait or bowel/bladder function.  She continued to use a brace to allow for 
healing of the fusion and post operative X-rays demonstrated bony fusion.  On examination, 
ROM was recorded as flexion 90 degrees, and extension 15 degrees, limited by pain. There was 
moderate  myofascial  tenderness  to  palpation  in  the  paraspinal  region  of  lumbar  spine.  
Neurologic examination was noted for normal lower extremity strength (5/5), intact sensation, 
and normal (2+) reflexes at the knees and ankles.  The CI was able to perform tandem walk 
(intact  balance  and  coordination)  and  heel  and  toe  walk  (indicating  normal  strength).    The 
neurosurgeon  noted  a  post  operative  magnetic  resonance  imaging  (MRI)  demonstrating 
residual degenerative disk disease at L4-5 with mild bilateral lateral recess stenosis and mild 
right sided neuroforaminal stenosis at L5-S1.  The neurosurgeon also noted electrodiagnostic 
studies  performed  on  26  February  2002  (EMG,  NCV)  of  the  lower  extremities  which  were 
negative for radiculopathy.  At a 6 May 2002 physical therapy (PT) appointment, the physical 
therapist  recorded  there  was  some  decrease  in  back  pain  as  well  as  no  longer  has  radiating 
pain.  ROM was non-goniometrically recorded.  Strength was normal (5/5), the right ankle reflex 
was decreased and there was decreased sensation over the left anterolateral thigh.  The MEB 
NARSUM (15 May 2002) cited the neurosurgery examination of 7 March 2002 noted above.  A 
neurosurgery  MEB  addendum,  dated  17  June  2002  (based  on  neurosurgery  examination 
13 June  2002)  noted  X-rays  demonstrated  “solid  interbody  fusion.”    The  CI  was  stated  to 
tolerate a full duty day within confines of her profile restrictions (no running, PT test, riding in 
tactical vehicles, wearing of load bearing equipment).  On examination, flexion was 80 degrees 
and  extension  20  degrees.    There  was  mild  myofascial  tenderness  to  palpation  of  the  low 
lumbar spine.  Strength of the lower extremities was normal (5/5), sensation and reflexes were 
intact.  Gait was normal and the CI was able to heel and toe walk and had intact tandem gait.  
The  neurosurgeon  cited  a  repeat  EMG  performed  after  the  12  March  2002  neurosurgery 
consult which was again negative for evidence of radiculopathy.  At the VA Compensation and 
Pension examination (C&P) performed on 22 May 2002, 3 months prior to separation, the CI 
reported  continued  symptoms.    On  examination,  there  was  muscle  spasm  and  tenderness 
bilaterally.  Straight leg raising test was stated as positive bilaterally without specifying what 
symptoms were provoked.  ROM was flexion 75 degrees, extension 30 degrees, right and left 
lateral  bending  40  degrees,  right  and  left  rotation  35  degrees,  all  with  pain  at  end  point  of 
motion (i.e. flexion 75 degrees with pain at 75 degrees).  There was normal lower extremity 
strength without atrophy, and reflexes and sensation were reported as normal (but elsewhere 
the examiner noted decreased sensation in the left thigh).  Posture was normal, and gait was 
normal without limited function of standing or walking or use of assistive devices (cane, brace, 
etc.).   
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
Board  must  correlate  the  above  clinical  data  with  the  2002  Rating  Schedule  (applicable 
diagnostic  codes  include:  5292  limitation  of  lumbar  spine  motion;  5293  intervertebral  disc 
syndrome; and 5295 Lumbosacral strain).  The PEB rated the back condition 10%, and VA rated 
the condition 20%, both using the 5295 code, lumbosacral strain.  The Board considered the 
rating under the 5295 code for lumbosacral strain used by the PEB and VA.  Board members 
agreed  the  evidence  did  not  support  the  40%  rating  under  this  code.    There  was  no  loss  of 
lateral spine motion (both measured at 40 degrees on a VA C&P examination) to support the 
20%  rating.    The  Board  noted  the  presence  of  muscle  spasm  at  the  time  of  the  C&P 
examination, but while there was pain at the end range of forward bending to 75 degrees there 
was no indication that muscle spasm was produced by that movement.  Further it was noted 
that posture was normal indicating normal spinal contour, and gait was normal.  The Board next 
considered the rating under the VASRD diagnostic code 5292 in effect at the time as well as 
current VASRD guidelines.  The Board agreed that the ROM documented at the time of the MEB 

neurosurgery  examinations  and  the  C&P  examination  supported  the  10%  under  the  VASRD 
diagnostic code 5292 in effect at the time as well as current VASRD guidelines (general rating 
formula for diseases and injuries of the spine).  The Board finally considered whether a higher 
rating was warranted under the guidelines for intervertebral syndrome, code 5293.  The CI had 
intervertebral disc disease with ridicular symptoms, but without objective neurologic findings, 
and had a normal EMG.  Board members agreed the absence of objective neurologic findings 
did not support the 60% rating under the 5293 diagnostic code.  The evidence of the record did 
not describe recurring attacks described in the 20% or 40% level.  No care for exacerbations 
was  documented  in  the  service  treatment  records  (STRs)  nor  mentioned  in  the  C&P 
examination.  Board members concluded that using the guidelines under 5293, the CI’s back 
condition did not approach the 20% rating as there were no recurring attacks.  There were no 
incapacitating episodes that warranted consideration under the updated 5293 VASRD criteria 
based  on  incapacitating  episodes  that  became  effective  in  September  2003.    The  Board 
discussed whether the CI’s back condition more nearly approximated the 20% rating under this 
code based on an assessment of the impairment as moderate even though recurring attacks 
were not documented.  After reviewing the evidence, Board members agreed the 20% rating 
was not more nearly approximated.  The Board concluded the 10% rating was appropriate for 
motion limited by pain noted on both the neurosurgery and C&P examinations as well as under 
the other applicable rating codes.  The Board also considered if additional disability rating was 
justified for peripheral nerve impairment due to radiculopathy.  The CI had DDD with radiating 
pain;  however,  examinations  indicated  normal  strength,  reflexes  and  gait.    Electrodiagnostic 
testing was negative for evidence of radiculopathy.  The left thigh sensory changes were not 
consistent with the disc disease (most consistent with a common peripheral nerve condition of 
the lateral femoral cutaneous nerve) and did not affect functioning.  The presence of functional 
impairment with a direct impact on fitness is the key determinant in the Board’s decision to 
recommend any condition for rating as additionally unfitting.  Therefore the critical decision is 
whether  or  not  there  was  a  significant  motor  weakness,  which  would  impact  military 
occupation specific activities.  There is no evidence in this case that motor weakness existed to 
any degree that could be described as functionally impairing.  The Board therefore concludes 
that  additional  disability  rating  was  not  justified  on  this  basis.    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 degenerative disc disease with low back pain condition. 
 
Contended PEB Conditions.  The contended condition adjudicated as not unfitting by the PEB 
was major depressive disorder.  The Board’s first charge with respect to these conditions is an 
assessment of the appropriateness of the PEB’s fitness adjudications.  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 MEB psychiatry NARSUM addendum, 7 May 2002, noted a 9 month 
history of depressive symptoms associated with marital discord and possible divorce.  At that 
time, a new medication had been initiated 2 weeks before and the examiner noted that not 
enough time had elapsed to establish whether it would be effective.  The examiner concluded 
the  impairment  for  military  duty  was  mild  and  assigned  a  physical  profile  of  S3  (satisfactory 
remission from an acute psychotic or neurotic episode that permits utilization under specific 
conditions [assignment when outpatient psychiatric treatment is available or certain duties can 
be  avoided]).    At  the  C&P  examination  2  weeks  later  on  24  May  2002,  the  CI  reported 
depressed feelings with some insomnia and low energy for about 15 months associated with 
being turned down for a drill sergeant position and marital stress.  The examiner rendered no 
psychiatric  diagnosis  concluding  the  CI’s  condition  did  not  meet  diagnostic  criteria  for  either 

  After  due  deliberation 

major depression or dysthymia.  The examiner estimated the Global Assessment of Functioning 
(GAF)  of  85  to  90  (absent  or  minimal  symptoms).    The  condition  was  not  implicated  in  the 
commander’s statement.  The condition was reviewed by the action officer and considered by 
the Board.  There was no indication from the record that this condition significantly interfered 
with  satisfactory  duty  performance. 
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  condition;  and, 
therefore, no additional disability ratings can be 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.    In  the  matter  of  the 
degenerative disc disease with low back pain and sciatic pain without neurologic abnormality 
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 recommends no change from the PEB determination as not unfitting.  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 
Degenerative Disc Disease w/ Low Back Pain and Sciatic Pain… 

VASRD CODE  RATING 
5299-5295 
COMBINED 

10% 
10% 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120709, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 

 

           XXXXXXXXXXXXXXXXXXX 
           President 
           Physical Disability Board of Review 

 
 

 
 
 

 
 
 

 
 
 

 
 
 

 
 

 
 
 

SFMR-RB 
 
 
 
 
MEMORANDUM FOR Commander, US Army Physical Disability Agency  
(TAPD-ZB /  ), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557 
 
SUBJECT:    Department  of  Defense  Physical  Disability  Board  of  Review  Recommendation  for 
XXXXXXXXXXXXXXXXXXXXXX, AR20120020626 (PD201201106) 
 
 
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 and hereby deny the individual’s application.   
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress 
who have shown interest in this application have been notified of this decision by mail. 
 
 BY ORDER OF THE SECRETARY OF THE ARMY: 
 
 
 
 
Encl 
 
 
 
CF:  
(  ) DoD PDBR 
(  ) DVA 
 
 

     XXXXXXXXXXXXXXX 
     Deputy Assistant Secretary 
         (Army Review Boards)