IN THE CASE OF:	  

		BOARD DATE:	       4 December 2008

		DOCKET NUMBER:  AR20080007607 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an increased Physical Evaluation Board (PEB) rating and a medical retirement as a result of the increased rating. 

2.  The applicant states, in effect, that he was medically discharged and rated 
10 percent disabled by the Army.  The Department of Veterans Affairs (DVA) rated him 40 percent disabled for the same condition that rendered him unfit for duty.  He feels the Army PEB rating is a lower rating than he deserves.  He understands that the National Defense Authorization Act (NDAA) of 2008 affords servicemembers who were medically discharged between 11 September (sic) and the present to have their cases reviewed due to numerous injustices involving the lower Army ratings.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his Medical Evaluation Board (MEB) and MEB Narrative Summary (NARSUM), a copy of his PEB, a copy of his DVA rating report and examination, and copies of his service medical records.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant served in the Regular Army from 6 August 2002 through
25 October 2004.  He performed duties as the command unit chaplain.  He was discharged under the provisions of Army Regulation 635-40, chapter 4-24b(3), by reason of disability, severance pay.

3.  On 13 August 2004, the applicant underwent an MEB.  The MEB reported no specific injury to the applicant's back, only that he first reported low back pain in 2002 while deployed to Kuwait.  He reported that while sleeping on a cot, he began having low back pain which progressively worsened.  On examination, discomfort was noted in the lumbar spine with full forward flexion, as well as with extension.  Range of motion was measured with a goniometer at forward flexion 80 degrees, extension 15 degrees, left side bending 30 degrees, right side bending 30 degrees, right rotation 35 degrees, and left rotation 35 degrees.  Wadell signs were positive for axial loading, as well as distracted straight left raise testing.  Deep tendon reflexes were 2/4 bilaterally. No neurologic deficit was noted on examination.  Sensation to light touch and pinprick was intact throughout.  No radicular signs were noted.  He was able to heel walk and toe walk.  No gross structural deformity or muscle spasm was noted of the back.  No edema, effusion or muscle atrophy was noted of the extremities.  He demonstrated a normal gait on examination.  A magnetic resonance imaging (MRI) performed in April 2004 of his lower back showed the conus medullaris and cauda equine as normal in shape, size, and signal.  The lumbar alignment and vertebral body heights and signal were normal; there were no lytic lesions in the lumbar vertebrae.  The L1/2 through L4/5 was unremarkable.  At the L5/S1 there was a mild 5 millimeter central protrusion.  This protrusion caused mild spinal canal stenosis and mild to moderate bilateral lateral recess stenosis.  There was no evidence for spondylolysis or spondylolisthesis.   

4.  The MEB found his condition of chronic low back pain medically unacceptable and recommended that his medical conditions be referred to a PEB.  On
19 August 2004, the applicant concurred with the MEB's findings and recommendations.

5.  On 24 August 2004, the applicant underwent an informal PEB which found him unfit due to chronic subjective low back pain, without neurologic abnormality, thoracolumbar range of motion limited by pain, with 2/5 Waddel's sign, rated as 10 percent disabling under the VA Schedule for Rating Disabilities (VASRD) Code 5237.  Based on a review of the medical evidence of record, the PEB concluded that his medical condition prevented performance of his duty in his grade and specialty.  Because he was rated less than 30 percent disabled and had less than 20 years of active service, his condition required separation with severance pay in lieu of retirement.  

6.  On 25 August 2004, the applicant concurred with the PEB's findings and waived a formal hearing of his case.

7.  The applicant provided a copy of a physical examination he underwent at QTC Medical Services, Lawton, Oklahoma on 16 September 2004, prior to his discharge.  Examination of the thoracolumbar spine reveals no complaints of radiating pain on movement.  Mild muscle spasm was present throughout the lumbar spine.  There was tenderness noted on examination.  There was negative straight leg raising on the right and left.  Range of motion was at forward flexion was measured at 15 degrees, extension at 13 degrees, left lateral flexion at 
18 degrees, right lateral flexion at 25 degrees, right rotation at 20 degrees, and left rotation at 30 degrees.  His range of motion was limited by pain and pain had the major functional impact.  His range of motion was not additionally limited by fatigue, weakness, lack of endurance or in coordination.  There was no ankylosis of the spine and no signs of intervertebral disc syndrome present.  He was diagnosed with degenerative joint disease with spinal canal stenosis, L5-S1.  

8.  On 25 October 2004, the applicant was discharged by reason of disability with severance pay under the provisions of Army Regulation 635-40, paragraph
4-24b(3).  He was credited with completing 2 years, 2 months, and 20 days of active military service and he received $16,108.80 in severance pay.

9.  On 13 December 2004, the DVA Muskogee Regional Office granted the applicant service-connection for degenerative disc disease with spinal canal stenosis, L5-S1, rated as 40 percent disabling.  The rating decision was not available for review.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Physical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

11.  Title 10, U.S. 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.  

12.  The applicant's chronic low back pain was rated under VASRD Code 5237 shown below:

	Unfavorable ankylosis of the entire spine	100

	Unfavorable ankylosis of the entire thoracolumbar spine		50

	Unfavorable ankylosis of the entire cervical spine; or, forward
flexion of the thoracolumbar spine 30 degrees or less; or, favorable
ankylosis of 	the entire thoracolumbar spine	40

	Forward flexion of the cervical spine 15 degrees or less; or, 
Favorable ankylosis of the entire cervical spine	30

	Forward flexion of the thoracolumbar spine greater than
30 degrees but not greater than 60 degrees; or, forward flexion of the
cervical spine greater than 15 degrees but not greater than 30 degrees;
or, the combined range of motion of the thoracolumbar spine not greater
than 120 degrees; or, the combined range of motion of the cervical spine
not greater than 170 degrees; or, muscle spasm or guarding severe
enough to result in an abnormal gait or abnormal spinal contour such as
scoliosis, reversed lordosis, or abnormal kyphosis	20

	Forward flexion of the thoracolumbar spine greater than 60
degrees but not greater than 85 degrees; or, forward flexion of the
cervical spine greater than 30 degrees but not greater than 40 degrees;
or, combined range of motion of the thoracolumbar spine greater than
120 degrees but not greater than 235 degrees; or, combined range of
motion of the cervical spine greater than 170 degrees but not greater
than 335 degrees; or, muscle spasm, guarding, or localized tenderness
not resulting in abnormal gait or abnormal spinal contour; or, vertebral
body fracture with loss of 50 percent or more of the height	10

13.  Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel.  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries.  The ratings also represent the residual effects of these health impairments on civilian occupations.  Part 4, paragraph 4.1 of the VASRD states that the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, which has neither the authority, nor the responsibility for determining physical fitness for the military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

15.  Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record supports the determination that the applicant's unfitting back condition was properly diagnosed and his disability was properly rated by the PEB in accordance with the above regulations.  His separation with severance pay was in compliance with law and regulations.  His rights were fully protected during the disability process.  He concurred with both the MEB and PEB and was properly counseled regarding his rights during the physical disability process. 




2.  Based on the available medical evidence at the time of the applicant's discharge, his back condition was properly rated in accordance with VASRD Code 5237, after a thorough examination by competent military medical authorities.  At the time of his discharge, his back condition did not meet the criteria under VASRD Code 5237 for a higher rating.  The rating he received correctly captured his physical condition at the time of his discharge.  The above explanation of the VASRD code 5237 shows why the applicant's back condition did not meet the criteria for a higher rating.  In order to have received a
30 percent disability rating and a medical disability retirement, the applicant's medical evidence would have had to have shown that he had forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  His medical evidence did not show he met the criteria.  Further, the applicant has not furnished any new substantive medical evidence to support that he was entitled to at least a 30 percent disability rating under VASRD Code 5237.

3.  The applicant provided a copy of a physical examination he had by a civilian medical examiner on 16 September 2004 prior to his discharge, and only a month after his MEB examination.  This examination conflicts with the MEB examination regarding the measurements of the applicant's range of motion, diagnosis, as well as reporting of muscle spasms and tenderness to touch which was not present in August 2004.  It also noted that his range of motion was limited by pain and that pain had the major functional impact and it did not include any explanation on whether his reduced range of motion was due to evidence of mechanical back pain as opposed to subjective pain.  Finally, the applicant concurred with the PEB and did not request a formal hearing of his case to pace into evidence the civilian examination and he has provided no additional medical evidence that the Army's rating was in error.

4.  It appears that the DVA based its rating of the applicant's back condition on the September 2004 civilian examination and rated his back as being 40 percent disabling because his forward flexion of the thoracolumbar spine was 30 degrees or less.  However, the DVA's rating does not change the medical evidence available for review by the PEB at the time it convened in August 2004 when it determined that the applicant met the criteria for a 10 percent disability rating.  The applicant provided no evidence that an injustice was committed in his rating by the Army. 

5.  The DVA rating decision provided by the applicant does not establish entitlement to medical retirement or disability separation from the Army.  Operating under different law and its own policies and regulations, the DVA, which has neither the authority, nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is 
related to service; i.e., service-connected.  Furthermore, the DVA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 

6.  Given the above, the applicant has submitted insufficient evidence to establish error in the disability rating given in his PEB or to entitlement to medical disability retirement.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit sufficient evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



															XXX
      _______ _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007607



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007607



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1