RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

SEPARATION DATE:  20031107 

 
NAME:  XXXXXXXXXXXXXXXXX                                                           BRANCH OF SERVICE:  ARMY 
CASE NUMBER:  PD1201145 
BOARD DATE:  20130207 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty  SPC/E-4  (31R/Line  of  Sight  Operator),  medically 
separated  for  chronic  low  back  pain  (LBP).    Chronic  LBP  condition  could  not  be  adequately 
rehabilitated  and  the  CI  did  not  improve  adequately  with  treatment  to  meet  the  physical 
requirements of his Military Occupational Specialty (MOS) 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 chronic LBP condition as unfitting, rated 10%, with application of the US Army 
Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals, and was medically 
separated with a 10% disability rating. 
 
 
CI CONTENTION:  “More serious than thought” 
 
 
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 the Correction of Military Records. 
 
 
RATING COMPARISON:   
 

Service IPEB – Dated 20030926 

VA (1 Mos. Pre -Separation) – All Effective Date 20031108 

*Per last VARD on record dated 20110219 combined rated was 80% effective 20081107 
 
 

ANALYSIS  SUMMARY  The  Board  acknowledges  the  sentiment  implied  in  the  CI’s  application 

regarding the significant impairment with which his service-aggravated condition continues to 
burden him.  It is a fact, however, that the Disability Evaluation System (DES) has neither the 
role  nor  the  authority  to  compensate  members  for  anticipated  future  severity  or  potential 
complications of conditions resulting in medical separation.  This role and authority is granted 
by Congress to the Department of Veterans Affairs (DVA).  The 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 

Condition 

Chronic Low Back Pain 

Code 

5293-5299-

5295 

Rating 
10% 

↓No Additional MEB/PEB Entries↓ 

Combined:  10% 

Condition 

Code 

Herniated Nucleus Pulposus L4-5 

5243-5237 
0% X 13/ Not Service-Connected x 3 

Combined:  10% 

Rating 
10% 

Exam 

 20031106 

 

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.   
 
Chronic Low Back Pain Condition.  The narrative summary (NARSUM) notes the CI had a history 
of  LBP  which  commenced  in  1999.    He  was  treated  with  anti-inflammatory  medications, 
physical  therapy  (PT),  and  activity  modification  without  relief  of  symptoms.    Magnetic 
resonance imaging study (MRI) in Feb 2003 revealed a small disc herniation at L4-L5 and a small 
disc  bulge  at  L5-SI  without  cord  or  neuroforaminal  compromise.    The  CI  was  not  a  surgical 
candidate.  An outpatient clinical examination on 8 April 2003 (7 months prior to separation) 
noted the CI to sit comfortably in a chair and to comfortably get on to the exam table.  Active 
range-of-motion (ROM) was documented as “full”, forward flexion to 90 degrees with pain at 
extremes.  The NARSUM examiner 3 months prior to separation (8 August 2003) noted that the 
CI experienced occasional numbness and tingling in the legs.  Examination was significant for 
pain  with  flexion  at  90  degrees,  a  negative  straight  leg  raise  (SLR)  and  normal  gait.    The 
neurologic examination, including lower extremity muscle strength, was normal.  There were 
three  goniometric  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.    At  the  MEB  exam  3  months prior to  separation,  the CI  reported  pain  with 
running  and  standing  greater than  20 minutes.   At  the  VA  Compensation  and  Pension  (C&P) 
exam  a  day  prior  to  separation,  the  CI  reported  back  pain  with  movement.      The  C&P 
examination noted a normal gait, normal deep tendon reflexes (DTR) and no muscle atrophy of 
the lower extremities.  SLR was negative bilaterally.   
 
The Board directs attention to its rating recommendation based on the above evidence.  It is 
noted in this case that the PEB's adjudication occurred on the day the current §4.71a criteria 
(General  Rating  Formula  for  Diseases  and  Injuries  of  the  Spine)  took  effect  (26  September 
2003);  but  the  condition  was  rated  with  application  of  the  older  VASRD  spine  criteria.    The 
Board,  IAW  DoDI  6040.44,  must  apply  the  newer  criteria  to  its  recommendation.    The  PEB 
assigned a 10% rating under the old 5295 code (lumbosacral strain, analogously) combined with 
a 5293 code (intervertebral disc syndrome).  The VA likewise assigned a 10% rating, but under 
the  new  lumbosacral  strain  code  (5237)  combined  with  intervertebral disc  syndrome  (5243).  
The Board agreed that limitation of motion in evidence did not support a rating higher than 
10%.  In deliberating the next higher 20% rating, the Board considered that although muscle 
spasm was not specifically mentioned, gait was normal.  Board members agreed that the ability 
to comfortably sit and to get on an exam table, and the ROM in evidence, were not consistent 
with muscle spasm severe enough to cause abnormal spinal contour.  Therefore a 20% rating 
was  not  justified.    The  Board  also  considered  rating  intervertebral  disc  disease  under  the 
alternative  formula  for  incapacitating  episodes,  but  could  not  find  sufficient  evidence  which 
would  meet  even  the  10%  criteria  under  that  formula.    The  Board  finally  deliberated  if 
additional  disability  was  justified  for  the  history  of  lower  extremity  numbness  and  tingling.  
Although  the  MRI  showed  mild  disc  herniation,  no  neuroforaminal  impingement  or  cord 
compression was present.  All examiners recorded normal neurologic findings, including muscle 
strength.    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.  There is no evidence in this case of functional impairment attributable to peripheral 
neuropathy.  The Board therefore concludes that additional disability 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  rating  for  the  chronic  LBP  condition,  but  recommends  assigning  the  5237 
code IAW the current VASRD spine rules in effect at the time of separation. 
 
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 chronic LBP condition and IAW VASRD §4.71a, the Board 
unanimously recommends no change in the PEB adjudication, but recommends new code 5237.  
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, but recommends code 5237, as follows:   
 

UNFITTING CONDITION 

VASRD CODE  RATING 

5237 

COMBINED 

10% 
10% 

Chronic Low Back Pain 

 
 
The following documentary evidence was considered:   
 
Exhibit A.  DD Form 294, dated 20120627, w/atchs   
Exhibit B.  Service Treatment Record   
Exhibit C.  Department of Veterans’ Affairs Treatment Record   
 
 
 
 
 
 
 
 

 

           xxxxxxxxxxxxxxxxxxxxxxx, DAF 
           Acting Director 
           Physical Disability Board of Review 

 
 
 

SFMR-RB 
 
 
 
 
MEMORANDUM FOR Commander, US Army Physical Disability Agency  
(TAPD-ZB / xxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557 
 
 
SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation  
for xxxxxxxxxxxxxxxxxxxxx, AR20130002982 (PD201201145) 
 
 
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 description 
without modification of the combined rating or 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 
 
 
 

     xxxxxxxxxxxxxxxxxxxxxxxxxxx 
     Deputy Assistant Secretary 
         (Army Review Boards)