RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  NAVY 
SEPARATION DATE:  20031029 

 
NAME:  XX 
CASE NUMBER:  PD1201858 
BOARD DATE:  20130205  
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty  ET2/PO2/E-5  (Electronics  Technician),  medically 
separated for degenerative disc disease (DDD), L5-S1.  The CI was first examined for low back 
and right lower extremity (RLE) leg pain in 2000.  She was treated with physical therapy (PT), 
traction  and  nonsteroidal  anti-inflammatory  medications,  but  did  not  improve  adequately  to 
meet  the  physical  requirements  of  the  rating  or  satisfy  physical  fitness  standards.    She  was 
placed  on  limited  duty  and  referred  for  a  Medical  Evaluation  Board  (MEB).  DDD,  L5-S1  and 
radiculopathy  RLE  were  forwarded  to  the  Physical  Evaluation  Board  (PEB)  as  medically 
unacceptable  IAW  SECNAVINST  1850.4E.    There  were  no  other  conditions  on  the  MEB 
submission.    The  PEB  adjudicated  the  DDD,  L5-S1  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  II, not  unfitting but  contributing.    The  CI  made no 
appeals, and was medically separated with a 10% disability rating. 
 
 
CI CONTENTION:  “I have struggled with this injury for more than 10 years.  I have had my VA 
disability rating increased to 30% and currently qualify as a surgical candidate for spinal fusion 
at L5, the same injury I was medically discharged with.  My private insurance denied to pay for a 
disc replacement but authorized the fusion.  I was originally rated at 20% as I had “partial use” 
of  my  right  leg,  however  was  obviously  unfit  for  continued  naval  service.    (continued)    I 
appreciate this review.  It never seemed right I didn't qualify for more than 10% for my sciatica 
as I still had "partial use" of my right leg; and the other only 10% for my back injury although I 
qualified for many high risk procedures for this injury to avoid surgery.  It was also documented 
at the time I was discharged I could not make much progress in physical therapy or with the 
epidural injections.  It was not recommended I have surgery at that time due to my age and the 
possible development of scar tissue, and I was told I would have a hard time walking in 10 years 
either way (with the surgery or left alone).  Although this was known and explained to me at 
the time of my discharge the disability was still rated the same percentage as people I know 
who  were  diagnosed  with  "tinnitus",  which  they  do  not  have  to  manage  daily  with  limited 
physical  activity  and  medications.    I  have  not  been  able  to  stand  or  walk  for  more  than  30 
minutes without pain (or pain medications) for more than a decade, and "I have not been able 
to run again ever since my initial injury.  I have braces for my right foot to help keep me from 
tripping when I walk and have developed tendonitis in my right ankle.  The comments and the 
rating seemed a little heartless.  I have seen no progress in my injury, only degradation.  Once 
out of the military I struggled to qualify for a job in my field, due to physical limitations, and 
although I am successfully employed some days after work I can no longer stand up enough to 
make dinner.  (continued)  The VA also rated me another 10% service-connected for GERD due 
to  the  anti-inflammatories  I  was  prescribed  while  on  active  duty  for  back  pain  and 
inflammation.” 
 
 
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.    The  radiculopathy,  RLE  condition 
requested for consideration and the unfitting DDD, L5-S1 condition meet the criteria prescribed 
in  DoDI  6040.44  for  Board  purview,  and  are  accordingly  addressed  below.    Any  condition  or 
contention not requested in this application, or otherwise outside the Board’s defined scope of 
review, remain eligible for future consideration by the Board for Correction of Naval Records. 
 
 
RATING COMPARISON: 
 

VA (~6 Mos. Pre-Separation) – All Effective Date 20031030 

Service IPEB – Dated 20030804 
Condition 

DDD, L5-S1 
Radiculopathy, RLE 

Code 
5293 

Rating 
10% 

Cat II 

Condition 

DDD Lumbar Spine 
Right Leg Radiculopathy… 

Code 
5243 
8520 

Rating 
10% 
10% 

Exam 

20030415 
20030415 
20030415 

No Additional MEB/PEB Entries 

Combined:  10% 

Not Service-Connected x 3 

Combined:  20% 

 
 
ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application 
regarding  the  significant  impairment  with  which  his  service-incurred  condition  continues  to 
burden  her.    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.  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.    That  role  and 
authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under 
a  different  set  of  laws  (Title  38,  United  States  Code).    The  Board  evaluates  DVA  evidence 
proximal to separation in arriving at its recommendations, but its authority resides in evaluating 
the  fairness  of  DES  fitness  decisions  and  rating  determinations  for  disability  at  the  time  of 
separation.  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  DVA,  however,  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. 
 
DDD, L5-S1 Condition.  The CI developed nontraumatic back pain with associated radiation into 
the  right  led  in  2000.    Magnetic  resonance  imaging  (MRI)  obtained  in  2001  revealed 
degenerative joint disease (DJD) and a bulging disc at the L5-S1 level with mild compression of 
the S1 nerve root.  Follow-up MRI obtained 6 April 2003 revealed no change in the size of the 
L5-S1 disc, no change in or any new nerve compression, but evidence of disc herniation.   On 
orthopedic evaluation, 19 November 2002, the CI noted no lower extremity weakness, but her 
leg would sometimes ‘give out’ during flare-ups of pain.  Motor strength was 5/5 in both legs, 
reflexes were reduced at the right ankle, but sensory exam was normal.  Surgical intervention 
was not recommended. 
 
There  were  two  range-of-motion  (ROM)  evaluations  in  evidence,  one  goniometric,  with 
documentation of additional ratable criteria, which the Board weighed in arriving at its rating 
recommendation; as summarized in the chart below. 
 

 

   2                                                           PD1201858 
 

Thoracolumbar ROM in Degrees 

Flexion (90 Normal) 

Ext (30) 

Combined (240) 

Comment 

 

VA C&P ~6 Mo. Pre-Sep 

(20030415,) 

25 (Limited by pain) 

90 

235 

MEB ~5 Mo. Pre-Sep 

(20030528) 

FF w/ fingertips to floor w/ knee in extended 

position 

-- 
-- 

Posture, gait and reflexes normal.  
No radiation of pain on 
movement, muscle spasms or TTP 

Motor 5/5 bilateral, 20/20 single leg and heal 
rises on bilateral LE; Nerve root tension with 
paresthesias lateral side of foot; reflexes wnl 

§4.71a Rating 

VA 10% 5243 

PEB  10% 5293  

 
At the VA Compensation and Pension (C&P) exam, performed on 15 April 2003, 6 months prior 
to separation, the CI reported occasional mild symptoms of foot drop while climbing stairs.  She 
noted debilitating  pain occurring  one to  two times  a  month  requiring bed  rest for 24  hours.  
Findings on physical examination are noted above.  At the MEB narrative summary (NARSUM) 
evaluation on 28 May 2003, 5 months before separation, the CI reported pain in back, buttock, 
thigh and right lower extremity, and some functional weakness climbing stairs.  She noted no 
bowel or bladder difficulties.  Findings on physical examination are reported above.  The CI was 
able to do 20 bilateral single leg and heel raises. 
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
2002  Veterans’  Administration  Schedule  for  Rating  Disabilities  (VASRD)  coding  and  rating 
standards for the spine, were modified on 23 September 2002 to add incapacitating episodes 
(5293 Intervertebral disc syndrome), and then changed to the current §4.71a rating standards 
on 26 September 2003.  The PEB and VA both rated the back condition 10% using rating criteria 
in effect at the time of their adjudications.  The PEB adjudication, 4 August 2003, appropriately 
utilized  the  2002-2003  standards  and  coded  5293,  intervertebral  disc  syndrome.    The  VA 
appropriately  utilized  the  new  codes  in  effect  after  September  2003,  and  coded  5243 
(Intervertebral disc syndrome), citing painful ROM.  The Board noted the CI’s date of separation 
to be 29 October 2003, and is mandated IAW DoDI 6040.44 to use the VASRD codes in effect at 
time of separation.  The Board unanimously agreed that the preponderance of evidence before 
separation supported a painful, but normal ROM the spine, both clinically and goniometric ally, 
compensable at the 10% rating IAW §4.59.  The Board considered a rating under 5243 based on 
incapacitating episodes.  Under this code ‘incapacitation’ is defined as bed rest prescribed by a 
physician.  A 10% rating requires total episodes of one, but less than  2 weeks per 12 month 
period.  A higher rating of 20% requires total episodes of at least two, but less than 4 weeks per 
12 month period.  The commander’s statement reported the CI to leave work early due to pain 
(no frequency noted), and to be away from work 6 hours a week for “treatment, evaluation and 
recuperation”.  The Board noted the CI report at the C&P exam of debilitating pain one to two 
times a month requiring bed rest for at least a day.  Service treatment records (STR) document 
the CI was placed on quarters by treating health professionals on one occasion for back pain in 
the 12 months prior to separation totaling 4 days.  After review, the Board unanimously opined 
that no higher rating than 10% could be recommended under this code.  The Board opined that 
the  radiculopathy  condition  was  an  integral  part  of  the  low  back  condition  and  addressed 
whether  additional  rating  was  justified.    The  Board  agreed  that  the  radiating  pain  was 
subsumed under the back code IAW 4.71a and could not be considered for additional rating.  
The Board noted the CI references to difficulty climbing stairs, continuously climbing ladders, 
intermittent foot drop, and leg ‘sometimes giving out without specific weakness’, but agreed 
that  no  fixed  motor  disability  was  present  given  the  multiple  proximate  examinations 
documenting  normal  motor  strength,  functional  studies  and  gait.    The  Board  noted  the 
recorded slight decrease in sensation of the lower lateral foot.  The Board agreed there was no 
evidence for ratable peripheral nerve impairment in this case, since motor strength was normal 
and sensory symptoms had no functional implication.  After due deliberation, considering all of 
the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there 

   3                                                           PD1201858 
 

was  insufficient  cause  to  recommend  a  change  to  the  10%  rating  adjudication  for  the  back 
condition,  but  a  change  to  the  rating  code  utilizing  VASRD  dated  26  September  2003  was 
appropriate. 
 
 
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 DDD, 
L5-S1 condition, the Board recommends by a vote of 2:1 a change in the disability rating code 
to  5243  and  retention  of  the  10%  disability  rating  IAW  VASRD  §4.71a.    The  single  voter  for 
dissent, who recommended 20% code 5243, did not elect to submit a minority opinion.  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 her prior medical separation. 
 

UNFITTING CONDITION 

VASRD CODE  RATING 

5243 

COMBINED 

10% 
10% 

Degenerative Disc Disease, L5-S1 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20121013, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 

 

           xx 
           Acting Director 
           Physical Disability Board of Review 

   4                                                           PD1201858 
 

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 21 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 USN  
-  former USN  
-  former USMC 
-  former USN   
-  former USMC 
-  former USN  
-  former USN   
-  former USN 
-  former USMC 
-  former USMC 
-  former USMC 
-  former USMC 
 
  

 
      
 

 
 
 

 
 
 

 
 
 

 
 
 

  xxxx 
  Assistant General Counsel 
     (Manpower & Reserve Affairs) 

   5                                                           PD1201858