IN THE CASE OF:	  

		BOARD DATE:	       30 JUNE 2009

		DOCKET NUMBER:  AR20090004880 


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:

The applicant defers to counsel regarding his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the portion of the applicant’s original request, which pertains to an increase in his Army disability rating to at least 40 percent, and which was subsequently denied by the Board upon reconsideration, be reconsidered again.

2.  Counsel states, in effect, that the Army Board for Correction of Military Records (ABCMR), during its reconsideration of the applicant’s original request, failed to address how the Army could justify not granting the applicant a 40 percent disability rating utilizing the VASRD (Veterans Schedule for Rating Disabilities) Code 5293.  Counsel notes VASRD Code 5293 states “a 40 to 60 percent disability rating will be predicated upon objective medical findings of a neurological involvement.  Deep tendon reflex asymmetry in the ankles, as manifested by an absent or diminished reflex, constitutes an important sign….”  Counsel states the Army does not dispute that the applicant exhibits evidence of “absent ankle reflex” and as such the applicant’s back condition should be rated at no less than 40 percent.

3.  Counsel also noted the Board’s Record of Proceedings refers to “Exhibit B which may have included advisory opinions” but notes the applicant was not provided with any advisory opinions.

4.  Counsel provides a copy of the Department of Veterans Affairs (DVA) rating decision, dated 21 September 2006, and various medical treatment and consultation forms associated with his March 2006 back surgery, as new evidence not previously seen by the Board.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2003093651 on 16 March 2004 and Docket Number AR20060010575 on 15 August 2006.

2.  Information available to the Board indicates the applicant was discharged from active duty on 29 November 1999 by reason of physical disability with a disability rating of 20 percent.  The applicant’s Physical Evaluation Board (PEB) proceedings note the 20 percent disability rating (utilizing the VASRD Code 5299-5295) was based on:

   "chronic low back pain with right lower extremity pain and radiculopathy
with recurrent L4/L5 and L5/S1 herniated discs.  There is also degenerative disk disease L3-4, L4-5, and L5-S1.  Soldier was operated for right L4-5 and L5-S1 disks in 1991 and a repeat L4-5 diskectomy in 1997.  Motor strength is 5/5 and there is hypoesthesia right L5 and S1 distribution and absent ankle reflex on right."

3.  In January 2000 the DVA granted the applicant a 40 percent disability rating for “herniated nucleus pulposus, lumbar spine, post operative” effective 
30 November 1999, the day following his discharge from active duty.  In rendering their decision the VA noted:

	"An evaluation of 40 percent is assigned for recurring attacks of severe				intervertebral disc syndrome with only intermittent relief.  A higher  	evaluation of 60 percent is not warranted unless there is pronounced
intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy, characteristic pain and demonstrable muscle spasm,
absent ankle jerk or other neurological findings appropriate to site of disease disc and little intermittent relief."

4.  On 16 March 2004 the Board acted on the applicant’s request to increase his Army disability rating to at least 40 percent based on the rating decision by the DVA.  The Board concluded that a rating by the DVA does not mandate the same rating by the Army and denied the applicant’s request.

5.  The applicant, through counsel, appealed his case to the U.S. Court of Federal Claims which remanded the applicant’s case to the ABCMR asking for further analysis and findings regarding:

   a.  whether the applicant’s disability rating should have been based on VASRD 5293 instead of 5295;
   
b.  if VASRD 5293 does apply, whether he is entitled to more than a
20 percent rating; and

   c.  whether the applicant is entitled to a higher rating based on the loss of right ankle reflex.

6.  On 16 August 2006 the Board concluded the applicant should have been rated by the Army utilizing VASRD Code 5293 (the same code used by the DVA) and not 5295 because code 5293 more nearly conformed to the applicant’s condition of intervertebral disc syndrome.  However, in so finding, the Board also concluded the only evidence of neurological involvement in the applicant’s symptoms was right foot numbness and an absent right ankle reflex.  The Board concluded that it appeared 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 while the Army found the applicant’s condition should be considered no worse than “moderate” intervertebral disc syndrome warranting only a 20 percent disability rating.  The Board found that under the DVA policies and guidance, a rating of 40 percent was within their right, but that the Army’s rating of 20 percent was also reasonable.

7.  On 21 September 2006 the DVA granted the applicant a 100 percent temporary disability rating, effective 28 March 2006, resulting from his need for surgical treatment of his back condition and ensuing convalescence.  Effective 
1 June 2006, the applicant’s previous 40 percent disability rating was reinstated by the DVA.  The DVA noted in its findings that the applicant was released from the hospital on 29 March 2006 and that during a 19 April 2006 follow-up visit he was found to be “doing extremely well, with no pain and good neurological function, being able to bend forwards [sic] to within 3” of the floor.”

8.  Included with counsel’s current request for reconsideration of the applicant’s original request for an increased Army disability rating was a 9 March 2006 medical consult report.  That report noted the applicant related that he was “pain free” following his 1999 surgery until January 2006 when he sneezed and felt severe low back pain with radiation to the left lower extremity.  He noted that in the past it has always been the right lower extremity that was more painful but now it was the left lower extremity that was more painful.  He also noted that there was no bowel or urinary bladder dysfunction related to the back pain.

9.  Title 38, U. S. Code—Pensions, Bonuses, and Veteran’s Relief, Chapter 1, Department of Veterans Affairs, Part 4-Schedule for Rating Disabilities, in effect in 1999 when the applicant received his Army and initial DVA disability rating noted that 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.

10.  By 1 July 2003 Title 38—Pensions, Bonuses, and Veterans’ Relief, Chapter 1, DVA, Part 4—Schedule for Rating was changed to show that VASRD Code 5293 provided the following:

Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months
or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.

With incapacitating episodes having a total duration of at least six weeks during the past 12 months – 60 percent
With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months – 40 percent
With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months – 20 percent
With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months – 10 percent

For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  “Chronic orthopedic and neurologic manifestations” means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly or nearly so.


11.  Under the current Title 38—Pensions, Bonuses, and Veterans’ Relief, Chapter 1, DVA, Part 4-Scheduling for Rating Disabilities, Intervertebral Disc Syndrome is now identified under VASRD Code 5243.  The criteria for establishing disability ratings, however, remained unchanged from the 2003 edition.

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Appendix B (Army Application of the VASRD), Appendix B-39, in effect at the time of the applicant’s Army disability rating and currently in effect, notes that VASRD Codes 5293 and 5295 states a 40 or 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 objective sign.  Highly significant objective signs are loss of bladder or bowel control which is 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.  Muscular atrophy, however, may be caused by disuse rather than having a neurological etiology.  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.  With respect to muscle weakness, it can be a subjective sign especially when break-away is noted on testing.  All laboratory test results from X-rays, EMGs [electromyogram], nerve conduction velocities, myelograms, CT [computerized axial tomography] scans and MRI’s [magnetic resonance imaging] are considered objective findings.  

13.  Appendix B-39 further states that objective signs of and findings of neurological involvement are often found in combination with objective symptoms such as pain.  The weight to be attached to each objective sign for rating purposes will vary according to the confirmation by laboratory test results along with co-presence of other confirmed objective signs as well as the presence of subjective symptoatology consistent with the diagnosis.  Lesser ratings will begin with a 0 percent rating for chronic low back pain of unknown etiology (mechanical low back pain).  Demonstrable pain on spinal motion or discovery of back pain etiology will warrant a 10 percent rating unless paravertebral muscle spasms are also present, in which case a 20 percent rating will be awarded.

14.  Department of Defense Instruction (DODI) 1332.39 (Application of the VASRD) 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.

15.  The Board’s 2004 and 2006 Record of Proceedings cover page noted that the Board considered the following evidence:

   a.  Exhibit A – Application for correction of military records.
   b.  Exhibit B – Military Personnel Records (including advisory opinion, if any).

16.  During the Board’s 2004 and 2006 considerations of the applicant’s case no advisory opinions were obtained or considered by the Board as part of their deliberation.

DISCUSSION AND CONCLUSIONS:

1.  The current appeal for reconsideration specifically contends that “the VASRD code 5293 does not justify how the Army and ABCMR can rate an issue with absent ankle reflex at less than 40 percent.”  It erroneously cites the Army Regulation at this point rather than the VASRD.  The Army Regulation does appear to be a current source of misunderstanding and should be addressed.  Army Regulation 635-40 (appendix) B-39. 5293a. states a 40 or 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 objective sign….”  The regulation goes on to list a host of objective findings that could support a higher rating.  This guidance applies to rating VASRD 5293.  The VASRD 5293 rating is based on pain and the disability caused by pain.  The Army guidance indicates that the rating should not exceed 20 percent based only on the subjective symptom of pain or discomfort.  To achieve a rating of 40 or 60 percent, the pain must first meet the severity threshold and then must be accompanied by measureable or objective findings that support an increased rating.  This is supported by the VASRD which indicates that intervertebral disc syndrome (IDS) of moderate intensity with recurring attacks merits a 20 percent rating.  IDS that is designated as Severe, manifested by recurring attacks with intermittent relief, merits a rating of 40 percent.  Both the moderate and severe levels can have objective findings such as loss of ankle reflex but the rating is based on the severity of the pain.  Pronounced IDS is described as persistent with little intermittent relief.  It cites examples of several objective findings that may correlate with the disc involved and corroborate the diagnosis.

2.  The Army Regulation noted above says that “a 40 or 60 percent disability rating will be predicated upon objective neurological findings….”  This is comparable to saying that a diagnosis of appendicitis is predicated on right lower quadrant pain or that a diagnosis of toothache is predicated on the presence of teeth.  The finding of right lower quadrant abdominal pain, while necessary to make the diagnosis, is not sufficient to make the diagnosis.  The presence of teeth is necessary to make the diagnosis of toothache but it is not sufficient to make the diagnosis.  The presence of neurological findings is necessary to justify a rating of 40 or 60 percent but it is not sufficient.  The degree of pain is the primary indicator and must be corroborated by objective findings to justify a rating of greater than 20 percent.  The oft cited absence of ankle reflex is not sufficient to justify a rating at any level and, in reality, is not even something which renders one “unfit.”

3.  The PEB noted the decreased sensation in the right foot and the absence of an ankle reflex on the right but the degree of discomfort and pattern of relief did not warrant a rating of greater than 20 percent.  The DVA noted the same neurological findings (gleaned from the Army medical record) and assigned a rating of 40 percent.  They noted that an evaluation of 40 percent is assigned for recurring attacks of severe intervertebral disc syndrome with only intermittent relief.  This is from the VASRD.  They had access to the same information regarding absence of a right ankle reflex but did not award a 60 percent rating.  The reason is that the rating is for pain and their assessment of pain was “Severe” (40 percent), not “Pronounced” (60 percent).  Of note is the fact that the applicant was convalescing (post-operative) from a third back surgery performed 9 days prior to his PEB.  This surgery is not noted by the PEB but is cited by the DVA.  This probably explains the increased rating assigned by the DVA and the fact that the DVA considered it a temporary rating with expected improvement in the applicant’s condition.  The PEB assessment was “Moderate” (20 percent).  The presence of neurological symptoms was irrelevant to a diagnosis of moderate or severe IDS.  If the applicant had Pronounced symptoms, an absent ankle reflex could have been used as part of the objective corroborating evidence.

4.  In the applicant’s case it appears the DVA rendered a 40 percent disability rating based on their conclusion that the applicant’s intervertebral disc syndrome was severe with recurring attacks and intermittent relief while the Army found the 20 percent disability rating appropriate.  The presence of "absent ankle reflex" was not the single determining factor in either rating decision, nor does it serve as a basis to grant the relief the applicant and counsel now seek.  The DVA temporary rating of 40 percent for post-operative discomfort is not at odds with the PEB rating of 20 percent for moderate intervertebral disc syndrome.  The presence of neurologic symptoms does not change moderate intervertebral disc syndrome to severe or pronounced.  The contention that the absence of an ankle reflex warrants a higher rating is fallacious and is not in keeping with the VASRD or Army Regulation 635-40.
5.  Counsel’s belief that there may have been an advisory opinion utilized by the Board in its deliberation based on the entry on page 1 of the Record of Proceedings under “Exhibit B” is without foundation.  The entry of “including advisory opinion, if any” merely provides versatility in the Record of Proceedings format.  Had the Board utilized any advisory opinions as part of their deliberation the applicant would have been provided a copy of the opinion for information under the provisions of Title 10, U.S. Code, section 1556 (Ex parte communications prohibited) and given an opportunity to submit comments or a rebuttal.  However, none were used or obtained during the processing of the applicant's cases.

6.  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 the aforementioned 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 to amend the decision of the ABCMR set forth in Docket Number AR2003093651 on 16 March 2004, or Docket Number
AR20060010575 on 15 August 2006.



      _________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)                                         AR20090004880



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ABCMR Record of Proceedings (cont)                                         AR20090004880



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