RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 August 2006
      DOCKET NUMBER:  AR20060010575


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, through a court remand, reconsideration of his
request to increase his disability rating to at least 40 percent.

2.  The U. S. Court of Federal Claims noted the applicant sought reversal
of the refusal of the Army Board for Correction of Military Records (ABCMR)
to alter his disability status based on the Department of Veterans Affairs
(DVA) rating he was awarded.

3.  Contrary to the Government’s argument, the Court found it has
jurisdiction to review the ABCMR’s decision.  However, the Court found that
the ABCMR’s opinion was not sufficient to support the Board’s decision and
therefore remanded the matter to the ABCMR for further consideration.  The
Court noted that the ABCMR dismissed the applicant’s objections to the
Physical Evaluation Board’s (PEB’s) determination in three short paragraphs
without any real analysis.  After reiterating the undisputed factual
evidence, the ABCMR did not provide any explanation as to why the Army
should not reconsider its disability rating based on the higher disability
rating provided to the applicant by the DVA for the same condition.

4.  The Court found that the ABCMR never considered the applicant’s
objections to the Army’s use of the Department of Veterans Affairs Schedule
for Rating Disabilities (VASRD) code “5293 (intervertebral disc syndrome)
even though the VA used VASRD 5295 (lumbosacral strain).”  (The Court
reversed the codes – the Army used VASRD 5295 and the DVA used VASRD 5293.)
 There was no analysis of whether the applicant’s condition could be fairly
characterized as a “lumbosacral strain” or “intervertebral disc syndrome”
when he was diagnosed and treated for herniated discs.

5.  The Court also found that the ABCMR ignored the possibility that the
applicant might be entitled to a higher disability rating based on
undisputed evidence of possible neurological involvement.   There was no
analysis of the informal PEB’s statement that the applicant had “absent
ankle reflex on the right” even though Army Regulation 635-40, Appendix B-
39(a) indicates that a 40 to  60 percent disability rating is appropriate
when there are “objective medical findings of neurological involvement”
such as “deep tendon reflex asymmetry in the ankles, as manifested by an
absent or diminished reflex.”

6.  The Court found that, while it was not prepared to conclude that the
ABCMR’s decision was arbitrary or capricious on the present record, the
decision cannot be affirmed as it was simply not sufficient for any
meaningful review.  The Court remanded the case for further analysis and
findings regarding (1) whether the applicant’s disability rating should
have been based on VASRD 5293 instead     of 5295; (2) if VASRD 5293 does
apply, whether he is entitled to more than a    20 percent rating; and (3)
whether the applicant is entitled to a higher rating based on the loss of
right ankle reflex.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 22 August 1986.  He trained and served in
military occupational specialty 95B (Military Police).

2.  The applicant’s Medical Evaluation Board (MEB) Summary showed he was
evaluated for a chief complaint of persistent low back pain and leg pain
with significant [right] foot numbness status post corrective surgery.  He
underwent right sided L4-5 and L5-S1 diskectomies in 1991 and repeat right
L4-5 diskectomy in 1997.  He had continued intermittent lower back pain as
well as right foot throbbing pain and numbness.  He denied any urinary or
bowel incontinence.  An MRI (magnetic resonance imaging) revealed (1)
degenerative disc disease of  L3-4, L4-5, and L5-S1; (2) possible extruded
disc fragment just right of the thecal sac of L4-5; (3) combination of scar
and disc material, either recurrent or residual disc fragments, at L4-5,
central to right paracentral area; and (4) L5-S1 recurrent or residual disc
herniation, which was broad based with a central and left paracentral
dominant component.  His final diagnosis was determined to be recurrent
herniated nucleus pulposus at L4-5 and L5-S1 with chronic postoperative
back and leg pain.  He was referred to a PEB.

3.  On 26 August 1999, an informal PEB found the applicant to be unfit,
under VASRD codes 5299 and 5295, due to a diagnosis of chronic low back
pain with right lower extremity pain and radiculopathy with recurrent L4-5
and L5-S1 herniated discs; with degenerative disc disease L3-4, L4-5 and L5-
S1; motor strength 5/5; hyperesthesia (extreme sensitivity to touch, pain,
or other stimuli) right L5 and S1 distribution; and absent right ankle
reflex.  The informal PEB recommended the applicant be separated with
severance pay with a physical disability rating of 20 percent.

4.  On 29 November 1999, the applicant was separated with severance pay by
reason of disability.  He had completed 13 years, 9 months, and 9 days of
creditable active service.

5.  On 12 January 2000, the DVA awarded the applicant a 40 percent
disability rating for herniated nucleus pulposus, lumbar spine, post
operative under VASRD code 5293.

6.  On 22 March 2000, the applicant applied to the ABCMR to change his
separation to a disability retirement based on the fact the DVA awarded him
a   40 percent disability rating.  He also stated he was seeking to raise
that [rating] to not less than 60 percent based on his military medical
records.

7.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.


8.  Army Regulation 635-40, Appendix B-39(a) (VASRD code 5293 and 5295),
states a 40 to 60 percent disability rating will be predicated upon
objective medical findings of neurological involvement.  Deep tendon reflex
asymmetry in the ankles, as manifested by an absent or diminished reflex,
constitutes an important sign.  Highly significant objective signs are loss
of bladder and/or bowel control which are neurogenic in origin.  Neurogenic
male sexual dysfunction or neurogenic muscular atrophy in any one of the
four extremities, lower or upper, are also significant objective signs.
Lesser objective signs are those of muscular weakness and sensory loss
along one aspect of an extremity as determined by pinprick testing.
Detection of paravertebral muscle spasms on examination is significant.
The weight to be attached to each objective sign for rating purposes will
vary according to the confirmation by laboratory test results along with
the  co-presence of other confirmed objective signs as well as the presence
of subjective symptomatology consistent with the diagnosis.

9.  The VASRD is the standard under which percentage rating decisions are
to be made for disabled military personnel. The VASRD is primarily used as
a guide for evaluating disabilities resulting from all types of diseases
and injuries encountered as a result of, or incident to, military service.
Once a Soldier is determined to be physically unfit for further military
service, percentage ratings are applied to the unfitting conditions from
the VASRD.  These percentages are applied based on the severity of the
condition.

10.  The VASRD gives code 5293 (intervertebral disc syndrome) a 60 percent
rating when it is pronounced, with persistent symptoms compatible with
sciatic neuropathy with characteristic pain and demonstrable muscle spasm,
absent ankle jerk, or other neurological findings appropriate to the site
of the diseased disc and little intermittent relief; a 40 percent rating
when it is severe with recurring attacks and intermittent relief; a 20
percent rating when it is moderate with recurring attacks; a 10 percent
rating when it is mild; and a zero percent rating when it is postoperative,
cured.

11.  The VASRD gives code 5295, (lumbosacral strain) a 40 percent rating
when it is severe, with listing of the whole spine to the opposite side,
positive Goldwaite’s sign, marked limitation of forward bending in standing
position, loss of lateral motion with osteo-arthritic changes, or narrowing
or irregularity of joint space, or some of the above with abnormal mobility
on forced motion; a            20 percent rating with muscle spasm on
extreme forward bending, loss of lateral spine motion, unilateral, in a
standing position; a 10 percent rating with characteristic pain on motion;
and a zero percent rating with slight subjective symptoms only.

12.  Department of Defense Instruction (DODI) 1332.39 (Application of the
Veterans Administration Schedule for Rating Disabilities) notes that the
VASRD percentage ratings represent, as far as can practicably be
determined, the average impairment in civilian occupational earning
capacity resulting from certain diseases and injuries.  However, not all
the general policy provisions of the VASRD are applicable to the Military
Departments.  Many of the policies were written primarily for DVA rating
boards and are intended to provide guidance under laws and policies
applicable only to the DVA.  This Instruction replaces some sections of the
VASRD.

13.  DODI 1332.39 states, for VASRD code 5293, that intervertebral disc
syndrome involves a herniaton of the nucleus pulposus with impingement on
the nerve root resulting in irritation and a radicular distribution of
pain.  Ratings of   40 to 60 percent will be predicated upon objective
neurological findings supported by laboratory data such as EMG
(electromyography), nerve conductive studies, and flow and manometric
studies for bowel and bladder involvement.  The weight attached to each
finding shall vary according to the   co-presence of other findings.
Residual lumbar pain with radiculopathy should be rated as 5295 and the
relevant code for neurological impairment.

14.  Title 10, United States Code, section 1203 provides for the physical
disability separation of a member who has less than 20 years service and a
disability rated at less than 30 percent.

15.  Title 38, U. S. Code, sections 310 and 331 permit the DVA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not raise the issue of his being rated under VASRD
code 5295 by the Army and under VASRD code 5293 by the DVA with his March
2000 application to the ABCMR.
2.  DODI 1332.39 states, in the section discussing VASRD code 5293, that
[when the condition being evaluated is] residual lumbar pain with
radiculopathy, then the condition should be rated as 5295 and the relevant
code for neurological impairment.  It appears the PEB used VASRD code 5295
because the applicant’s primary complaint was chronic lower back pain.

3.  However, it is noted that the applicant’s complaint and medical
findings, in total, more nearly conformed to the description of
intervertebral disc syndrome, VASRD code 5293.  Therefore, his records
should be corrected to show he was found to be unfit under VASRD code 5293
instead of code 5295.

4.  Nevertheless, the mere finding that he should have been rated under
VASRD code 5293, even combined with the fact that the DVA awarded him a 40
percent disability rating under VASRD code 5293, is insufficient to show
that the               20 percent rating he was awarded by the Army is
incorrect.

5.  Army Regulation 635-40, Appendix B-39(a) does indeed state that a 40 to
   60 percent disability rating will be predicated upon objective medical
findings of neurological involvement.  The applicant was found to have an
absent ankle reflex, which is noted in this Appendix to constitute an
important sign of neurological involvement.

6.  However, Army Regulation 635-40, Appendix B-39(a) goes on to state that
there are other signs of neurological involvement to consider.  Highly
significant objective signs are loss of bladder and/or bowel control which
are neurogenic in origin.  Neurogenic male sexual dysfunction or neurogenic
muscular atrophy in any one of the four extremities is also a significant
objective sign.  Detection of paravertebral muscle spasms on examination is
significant.

7.  Both Army Regulation 635-40 and DODI 1332.39 state that the weight to
be attached to each objective sign for rating purposes will vary according
to the confirmation by laboratory test results along with the co-presence
of other confirmed objective signs as well as the presence of subjective
symptomatology consistent with the diagnosis.

8.  The only evidence of neurological involvement in the applicant’s
symptoms was right foot numbness and an absent right ankle reflex.  It
appears the DVA chose to find that this symptom contributed to a finding
that the applicant suffered from “severe” intervertebral disc syndrome
warranting a 40 percent disability rating.  Under their policies and
guidance, such a finding was within their right.

9.  In accordance with the Army’s governing regulations (which requires the
co-presence of other confirmed objective signs as well as the presence of
subjective symptomatology consistent with the diagnosis), however, it
appears that an Army finding that his condition should be considered no
worse than “moderate” intervertebral disc syndrome (i.e., a 20 percent
disability rating) is reasonable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__slp___  __rml___  __jgh___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by showing the PEB found him to be to be unfit under
VASRD code 5293 instead of code 5295.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
showing he is entitled to more than a 20 percent rating even based on the
loss of right ankle reflex.




                                  __Shirley L. Powell_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010575                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |108.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]