IN THE CASE OF:	

		BOARD DATE:	18 September 2008  

		DOCKET NUMBER:  AR20080009429 


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 the 10 percent disability rating awarded to him by a formal Physical Evaluation Board (PEB) on 31 July 2007 be increased to 
40 percent disabling. 

2.  The applicant states, in effect, that Appendix B, dated 15 August 1990, to Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) should have been used when rating his disability instead of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD).  He further states the provisions of Department of Defense Instruction (DODI) 1332.39, dated 14 November 1996 should have served as the "final reference for impairment adjudication" in the rating of his disability.  He states that Appendix B to Army Regulation 635-40 addresses ratings for lumbosacral strains and follows the requirements of DODI 1332.39.  He further states his neurogenic bladder (bladder dysfunction caused by neurologic damage) is the continuing cause of his incontinence.

3.  The applicant states, in effect, that if the PEB was correct in using the VASRD in rating his disability he should have received a 20 percent rating under diagnostic code 5237 based on his limited range of motion.  He further states his neurogenic bladder should have been rated under the provisions for rating of the genitourinal system-dysfunctions and given a rating of 40 percent disabling.



4.  The applicant provides, in support of his application, copies of his Medical Board Summary; his Medical Evaluation Board (MEBD) Proceedings; his informal PEB Proceedings; seven pages of Chronological Record of Medical Care from Landstuhl Regional Medical Center, Germany; four pages of Chronological Record of Medical Care from the National Naval Medical Center (NNCM) Bethesda, Maryland; a Narrative Summary from a physician's examination; his formal PEB Proceedings; a letter from the U.S. Army Physical Disability Agency (USAPDA); an excerpt from the VASRD; his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of  5 January 2008; his discharge orders; his pre-separation counseling checklist; and his Enlisted Record Brief. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he enlisted in the Regular Army on 23 November 2004.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 97B (Counterintelligence Agent).

2.  On 12 September 2006, the applicant was injured while taking part in an assignment to assist in cleaning up a construction site.

3.  On 14 June 2007, an MEBD referred the applicant to a PEB for the following medical conditions:

	a.  traumatic injury to the lumbar area complicated by nerve root damage of the lumbar nerve roots manifested by initial severe lower back pain, right leg weakness and numbness, and neurogenic bladder, currently with continued lower back pain and reduced sensation in the right lower extremity, unresponsive to all appropriate and available treatment modalities - medically unacceptable;

	b.  recurrent right shoulder discomfort - medically acceptable, meets retention standards; and

	c.  hypertension - medically acceptable, meets retention standards. 

4.  According to the Medical Board Summary the applicant had moderate to severe pain during range of motion measurements in the thoracolumbar spine.  There was no indication of a mechanical basis for his limited motion.  The Summary also shows the applicant's neurologic examination to include motor, 


strength, deep tendon reflexes, and sensation (pain management service exam) was normal.  The Summary shows the applicant was referred to Urology where "the Neurologist postulated that the Soldier sustained nerve root damage either from stretching or contusion during the injury." The applicant was subsequently evaluated through the Urology Service where a neurogenic bladder was documented.

5.  On 27 June 2007, the applicant agreed with the MEBD's findings and recommendation.  He also indicated that he did not desire to continue on active duty.

6.  On 5 July 2007, an informal PEB found the applicant unfit under VASRD Diagnostic Code 5299-5237 for chronic low back pain after injury.  According to the PEB, the Soldier experienced back pain, right leg numbness and weakness and incontinence.  The urinary problem was worked up and urology documented a neurogenic bladder.  The Soldier was doing self-catheterization but discontinued this and post void residual was noted as zero on a note from Urology.  The neurogenic bladder was considered to be from neurapraxia (an injury to a nerve that interrupts conduction causing temporary paralysis but not degeneration and that is followed by a complete and rapid recovery) and was 90 percent resolved (27 October 2006).  The neurologist was of the opinion that the Soldier had incurred nerve root injury from stretching or contusion.  The Soldier had tenderness to palpation in the right lumbar paraspinous area, reduced motion and pain on range of motion in the thoracolumbar spine as well as reduced sensation in the right leg over the medial calf and right great toe.  The neurologic examination to include motor, strength, deep tendon reflexes, and sensation (pain management service exam) was normal.

7.  The applicant's recurrent right shoulder discomfort and hypertension met medical retention standards and there was no evidence that these conditions, independently or combined, rendered the Soldier unfit for his assigned duties.

8.  The PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay if otherwise qualified.  The applicant disagreed with the findings and demanded a formal hearing.  

9.  On 16 and 23 July 2007, the applicant received treatment for follow up medication for pain at the Landstuhl Regional Medical Center.  An MRI (magnetic resonance imaging) demonstrated no significant impingement or surgical 


abnormality.  The examiner indicated the applicant was thought to have a lumbar neuritis (an inflammatory or degenerative lesion of a nerve) from stretching or contusion during his injury.

10.  On 31 July 2007, the applicant underwent further evaluation for his urinary incontinence at NNCM, Bethesda.  Upon further testing no cause for his incontinence was discovered. The examiner indicated the applicant had a primary bladder neck obstruction that can account for his frequency and weak stream.  This is a functional and not anatomic obstruction and should improve with Uroxatral (medication).  The examiner indicated these symptoms should continue to improve over time as his pain and other injuries improve.

11.  On 31 July 2007, a formal PEB found the applicant physically unfit under VASRD Diagnostic Code 5237 (lumbosacral or cervical strain) due to chronic low back pain after injury.  According to the PEB, the Soldier experienced back pain, right leg numbness and weakness, and incontinence.  The urinary problem was worked up and Urology documented a neurogenic bladder.  The Soldier was doing self-catheterization but discontinued this and post void residual was noted as zero on a note from Urology.  The neurogenic bladder was considered to be from neurapraxia (an injury to a nerve that interrupts conduction causing temporary paralysis but not degeneration and that is followed by a complete and rapid recovery) and was 90 percent resolved (27 October 2006).  Primary bladder neck obstruction rather than neurogenic bladder was found based on subsequent testing on 31 July 2007.  The neurologist was of the opinion that the Soldier had incurred nerve root injury from stretching or contusion.  The Soldier had tenderness to palpation in the right lumbar paraspinous area, reduced motion and pain on range of motion in the thoracolumbar spine as well as reduced sensation in the right leg over the medial calf and right great toe.  The neurologic examination to include motor, strength, deep tendon reflexes, and sensation (pain management service exam) was normal.

12.  The applicant's recurrent right shoulder discomfort and hypertension met medical retention standards and there was no evidence that these conditions, independently or combined, rendered the Soldier unfit for his assigned duties.

13.  The formal PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay if otherwise qualified.  

14.  On 15 August 2007, after having been advised of the findings and recommendations of the formal PEB the applicant did not concur and indicated he was submitting a statement of rebuttal explaining why he did not agree.  A copy of this statement was not submitted by the applicant and a copy is not contained in his official military personnel file.
15.  A memorandum, dated 6 September 2007, from USAPDA to the Commander, Walter Reed Army Medical Center, Office of the Staff Judge Advocate denies the Staff Judge Advocate's request for USAPDA recusal based on a conflict of interest.  

16.  On 5 January 2008, the applicant was discharged due to disability with severance pay.  He had completed 3 years, 1 month, and 13 days of active service that was characterized as honorable.

17.  Paragraph B-17 of Appendix B to Army Regulation 635-40, in effect at the time, stated “revisions of the VASRD, after publication of this appendix, will take precedence unless found to be inappropriate to Army requirements."  The effective date of this regulation was 15 August 1990.

18.  Paragraph 6.15 of DODI 1332.39 states “Enclosure 2 provides instructions and explanatory notes for rating certain disabilities.  This guidance will be followed unless a subsequent change to the VASRD makes the guidance obsolete.”  The effective date of this instruction is 14 November 1996.

19.  Paragraph B-29 of Appendix B to Army Regulation 635-40, in effect at the time, provided that ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found.  Muscle contractures and arthritic degeneration of bone are examples of a mechanical limitation of motion.  Joint pain resulting in loss of motion does not constitute a mechanical basis for restricted motion.

20.  USAPDA Policy/Guidance Memorandum #13, dated 28 February 2005, provides guidance for rating unfitting conditions that are manifested by pain.  The rating grid in this memorandum provides that frequent moderate pain is ratable at 10 percent disabling.

21.  The VASRD (1 July 2004 edition) provides a general rating formula for diseases and injuries of the spine.  Lumbosacral or cervical strain is shown under diagnostic code 5237.  Note 1 to the general rating formula indicates that any associated objective neurologic abnormalities should be evaluated separately under an appropriate diagnostic code.

22.  Army Regulation 635-40 provides that a Soldier may be separated with severance pay if the Soldier's disability is rated at less than 30 percent, if the Soldier has less than 20 years of service as defined in 10 USC 1208 and if the Soldier's disability occurred in the line of duty and is the proximate result of performing active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his disability should have been rated in accordance with the provisions of Appendix B to Army Regulation 635-40 and DODI 1332.39 instead of the VASARD.  

2.  Both Appendix B and DODI 1332.39 specifically state that subsequent updates to the VASRD will take precedence over instructions provided in those two regulations.  The VASRD is updated on an annual basis (1 July of each year) as well as by VA memoranda throughout the year.  The revised diagnostic codes and rating criterion concerning the spine was first published in the VASRD edition dated 1 July 2004.  This criterion remained the same in the editions dated 1 July 2005 through 1 July 2007 and was in effect at the time of the applicant's formal PEB.  Therefore, the applicant's contention is without merit.

3.  The formal PEB determined the applicant unfit due to chronic low back pain.  He had reduced motion and pain on range of motion in the thoracolumbar spine.  However, there was no evidence of a mechanical basis for his limited motion.  Therefore, he was rated for pain only.  Based on the rating grid contained in USAPDA Policy/Guidance Memorandum #13, a rating of 10 percent disabling is appropriate.  Therefore, the applicant's rating of 10 percent disabling is correct.

4.  The formal PEB determined, based on additional testing conducted on 31 July 2007, that the applicant's urinary incontinence was due to a primary bladder neck obstruction rather than neurogenic bladder caused by his injury.  Therefore, this condition is not ratable under the provisions of Note 1 to diagnostic code 5237 of the VASRD.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that 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.



      __________X____________
               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)                                         AR20080009429



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ABCMR Record of Proceedings (cont)                                         AR20080009429



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