IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100018744 


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, correction of his records by:

* increasing his assigned disability rating from the physical evaluation board (PEB) from 10 percent to 30 percent or more
* showing he was either retired or medically retired instead of honorably discharged with entitlement to severance pay

2.  He states he was not properly counseled on the programs available to him.  He did not have any meeting with the military board in connection with his medical discharge.  He was not aware of being qualified for a medical or chapter 61 retirement.  He questions how it is possible for someone to receive a medical retirement for diabetes, but not possible for him to receive a medical retirement because of a life changing back surgery?  He discovered this injustice by talking to other veterans over the years who advised him that he should have been medically retired.  He would have submitted this request sooner, but he was awaiting the outcome of a claim he had submitted to the Department of Veterans Affairs (VA) and did not want any distraction while it was ongoing.

3.  He provides:

* a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* a VA Rating Decision
* a self-authored statement he mailed to a U.S. Senator


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's records show he had the following periods of prior service:

* 20 November 1982 - 19 November 1988, New Jersey Army National Guard (ARNG)
* 31 January 1989 - 8 July 1994, Regular Army (RA)
* 10 March 1998 - 26 April 1999, North Carolina ARNG

3.  On 27 April 1999, he again enlisted in the RA.  He held military occupational specialty (MOS) 31U (Signal Support Systems Specialist).  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

4.  His record contains an Optional Form 275 (Medical Record Report) entitled MEB and dictated on 14 December 2001 and approved on 4 January 2002.  This report contains the following pertinent information:

	a.  Chief complaint:  Low back pain.

	b.  History of present illness:  The examining physician noted the applicant had undergone an L5-S1 discectomy on the right in 1995.  He initially had good relief of his S1 radiculopathy but it returned after resuming normal military duties.
His pain had intensified over the past few years and had been refractory to conservative therapy and lifestyle modification.  At the time of his initial evaluation, he was taking high doses of narcotics on a daily basis and had been for the prior year.  There were no complaints of bowel or bladder dysfunction.

	c.  Physical examination:  He had a well healed midline incision with moderate myofascial tenderness to palpation in the paraspinal region, range of motion was limited to 90 degrees of flexion and 15 degrees of extension by pain.
Neurologic:  alert and oriented X3; speech fluent; cranial nerves intact; motor 5/5 in lower extremities with the exception of right tibialis anterior and extensor hallus longus which were 4+/5; sensation intact with the exception of decreased pin prick in the right S1 distribution and the left lateral femoral cutaneous distribution; reflexes 2+ at the knees, 1- right ankle, 1+ left ankle; straight leg raise produced back pain; coordination normal; gait, Soldier was able to tandem walk.

	d.  Laboratory and x-ray data:  Magnetic Resonance Imaging (MRI) of his lumbar spine preoperatively demonstrated L5-S1 degenerative disc disease with mild bilateral neuroforaminal stenosis and no recurrent disc herniation.  Postoperative Computed Tomography (CT) scan showed good hardware placement and bone graft and cage placement with no neural compromise.  Most recent plane films of the lumbar spine demonstrated a stable construct.

	e.  Clinical course:  The applicant was counseled regarding the risks and benefits of the spinal fusion surgery and with the odds of success being approximately 50 percent.  He understood the risks and he was taken to surgery on 12 September 2001 where he underwent an L5-S1 bilateral foraminotomy and discectomy, interbody and posterior lateral fusion and instrumentation.  Postoperatively to date he had no change in his pain syndrome.  He continued to complain of severe right lower extremity radicular pain and modest low back pain.

	f.  Diagnoses:  Lumbar degenerative disc disease with right lower extremity sciatic pain and low back pain, pain was moderate and constant.

	g.  Present condition and current level of function:  The applicant was unable to tolerate high impact activity.  He had been on temporary profile for over a year.
He had been issued a permanent profile limiting his permanent restrictions.

	h.  Prognosis:  The prognosis was poor given he had no response to surgical intervention for 3 months following surgery.  The physician expected potential, gradual improvement over the next several years.  He did not expect the applicant to return to unrestricted military duties.

	i.  Recommendations:  The physician determined the applicant did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-30j, pertaining to pain, sensory disturbance and weakness.  An Electromyogram (EMG) and Nerve Conduction (NCV) study had been requested, but was not available at the time of the dictation.  The physician referred the applicant to a PEB for final adjudication.

5.  His record contains a DA Form 3349 (Physical Profile), dated 31 December 2001, which shows his medical condition at the time as:  lumbar Degenerative Disc Disease status post spinal fusion and pseudofolliculitis barbae [better known as razor bumps].  As a result of these medical conditions, he was assigned a permanent profile with the following assignment limitations:

*   No running, jumping, stooping, crawling
*   No riding/driving tactical vehicles
*   No pushups or situps
*   No load bearing equipment
*   No shaving indefinitely, he could wear his beard no longer than 1/8th, neat and trim and not to interfere with protective mask

6.  On 24 January 2002, the applicant's commander indicated his medical condition prevented him from performing his duties in a field environment and opined that reclassification into another MOS which did not require field duty was a must in order for him to continue serving in the Army.  At the time, he was performing very well as the unit's Nuclear/Biological/Chemical Noncommissioned Officer and providing leadership to his team only while in garrison.  The commander concluded he was very competent in his MOS, the technical expert in NBC operations, and instrumental to the unit's success.

7.  His record contains an Optional Form 275, entitled Addendum to Consult to MEB, dictated on 8 February 2002, and approved on 5 March 2002.  This report contains the following pertinent information:

	a.  Chief complaint:  Low back pain.

	b.  History of present illness:  The examining physician noted the applicant had undergone lumbar infusion in September 2001 for failed back at Brooke Army Medical Center.

	c.  Physical examination:  He underwent a neurologic exam on 7 February 2002 which identified no change in his clinical exam.

	d.  Laboratory and x-ray data:  An additional x-ray of his lumbar spine postoperatively was obtained and demonstrated good hardware placement and satisfactory bony fusion.

	e.  Clinical course:  The applicant had absolutely no change in his symptoms from preoperatively.  His pain continued unabated.  An EMG and NCV study of the lower extremities was conducted with findings of the expected paraspinous musculature abnormalities due to post surgical changes.  There was no evidence of lower extremity radiculopathy.

	f.  Diagnoses:  Lumbar degenerative disc disease with low back pain, pain was moderate and constant.

	g.  Present condition and current level of function:  There had been no change.

	h.  Prognosis:  There was no change.

	i.  Recommendations:  The physician determined the applicant did not meet retention standards in accordance with Army Regulation 40-501, paragraph 
3-30(j), pertaining to pain.  The physician noted the applicant was referred to a PEB for final adjudication.

8.  His record contains (and he also provides) a DA Form 3947, dated 20 March 2002, which shows he underwent an MEB at Darnall Army Community Hospital, Fort Hood, TX.  The MEB determined he suffered from lumbar degenerative disc disease with right lower extremity sciatic pain and low back pain as evaluated under International Classification of Diseases (ICD) 9th revision code 72252 in accordance with Army Regulation 40-501, paragraph 3-30(j).  The MEB indicated this condition was incurred while the applicant was entitled to base pay.  As a result, he was referred to a PEB for final adjudication.  The applicant indicated he did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The findings and recommendation of the MEB were approved on 22 March 2002.  The applicant agreed with the MEB's findings and recommendation on 28 March 2002.

9.  His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 26 March 2002, which shows the following information pertaining to his injury:

* He injured his lower back on 13 November 1991 when he slipped while moving a locker full of vehicle batteries during a field training exercise
* He was not under the influence of alcohol or drugs at the time
* There was no indication that his injury was the result of misconduct
* He was mentally sound
* His injury was not likely to result in a claim against the government for future medical care
* His injury was incurred in the line of duty

10.  On 1 April 2002, an informal PEB convened Fort Sam Houston, TX.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined he was physically unfit.  He was rated under the VA Schedule for Rating Disabilities (VASRD), assigned codes 5299 and 5295 for his chronic low back pain, with right lower extremity radicular pain, status post L5-S1 discectomy, fusion and instrumentation, without neurologic or electrodiagnostic abnormality; and granted a 10 percent disability rating.  It was noted his injury was incurred while he was entitled to basic pay, it was in the line of duty, and a proximate result of performing duty.

11.  The PEB advised him that a member of an armed force may not be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury that he/she has.  The fact that his disability rating was less than 30 percent which, in conjunction with the fact he had less than 20 years of service, required his separation from the service with severance pay.  Accordingly, the PEB recommended that he be separated with entitlement to severance pay if otherwise qualified.  The applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing on 2 April 2002.

12.  He was honorably discharged on 15 May 2002 under the provisions of chapter 4 of Army Regulation 635-40 by reason of non-combat related disability with entitlement to severance pay.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 3 years and 19 days of active service during this period.  He also had 5 years, 9 months, and 28 days of total prior active service and 5 years, 7 months, and 10 days of total prior inactive service.

13.  He provides a VA Rating Decision rendered by the VA Regional Office located in Winston-Salem, NC, dated 24 June 2002, which shows he had the following conditions that were subject to compensation at the time at a combined disability rating of 70% in accordance with the VASRD codes and disability percentages indicated:

	a.  5293 - postoperative residuals of L5-S1 discectomy and fusion (also claimed as radiculopathy), service connected, Gulf War, aggravated, future exam June 2004 (Disability severance condition), 30 percent (%) from 16 May 2002;

	b.  7101 - Hypertension, service connected, Gulf War, incurred, 10% from 16 May 2002;

	c.  7819-7804 - Scar, right mid-thoracic back, residuals of excision of congenital nevus, service connected, Gulf War, aggravated, future exam June 2004, 10 percent (%) from 16 May 2002;

	d.  5099-5024 - Left shoulder impingement with degenerative joint disease [non-dominant] service connected, Gulf War, incurred, future exam June 2004, 10 percent (%) from 16 May 2002;

	e.  5299-5257 - Anterior cruciate ligament deficiency, left knee (claimed as arthroscopy), service connected, Gulf War, aggravated, 10 percent (%) from 16 May 2002;

	f.  5099-5024 - Right ankle sprain, service connected, Gulf War, incurred, future exam June 2004, 10 percent (%) from 16 May 2002;

	g.  6599-9522 - Allergic rhinitis, service connected, Gulf War, incurred, future exam June 2004, 10 percent (%) from 16 May 2002;

	h.  7804 - Scar, postoperative, lumbar spine, service connected, Gulf War, incurred, future exam June 2004, 10 percent (%) from 16 May 2002;

	i.  9440 - Major depression, service connected, Gulf War, incurred, future exam June 2004, 10 percent (%) from 16 May 2002;

	j.  7336 - Hemorrhoids with history of anal fissure, service connected, Gulf War, incurred, future exam June 2004, 10 percent (%) from 16 May 2002;

14.  He provides a self-authored statement he mailed to a U.S. Senator, dated 10 May 2010, wherein he provided a synopsis of his military service and medical condition and ultimately requested the senator's assistance with having his Army record corrected to show he was either retired or medically retired.

15.  Army Regulation 635-40 establishes the Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  

16.  Chapter 61, Title 10, U.S. Code, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, Fort Knox, KY, is responsible for operating the PDES and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  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 rating at less than 30 percent.  

18.  Title 10, U.S. Code, section 3914, provides that under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of active service computed under section 3925 of this title may, upon his/her request, be retired. 

19.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected by:

* increasing his assigned disability rating from the PEB from 10 percent to 30 percent or more
* showing he was either retired or medically retired instead of honorably discharged with entitlement to severance pay

2.  Following an injury to his back, he was seen by various medical specialists and recommended for entry into the PDES.  He underwent an MEB which recommended that he be considered by a PEB.  The PEB found his condition prevented him from performing his duties and determined he was physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay.  He agreed with the recommendation.  As a result, he was honorably discharged under the provisions of chapter 4 of Army Regulation 635-40 by reason of non-combat related disability with entitlement to severance pay.

3.  He attests he was not properly counseled and made aware of his options during the PDES process.  However, evidence shows he was involved with both his MEB and his PEB processes and concurred with the findings and recommendations of each of them.

4.  He attests the VA awarded him a disability rating of 70% and he now believes the PEB should have awarded him a combined disability rating of at least 30 percent for his condition which would result in medical retirement.

5.  Regarding the specific diagnosis and the VASRD code, there is no code that fits exactly with the applicant's diagnosis.  Both the VA and the Army used the code that they thought most appropriate and assigned it as an analogous rating.  The Army used VASRD 5295 (Lumbosacral strain) and the VA used VASRD code 5293 (Intervertebral disc syndrome).  In reality, the applicant did not have either muscle strain or a problem with his intervertebral disc.  In fact, the disc had been removed.  His problem was pain without radiculopathy or neuromuscular abnormality.

6.  The PEB's use of VASRD 5295 allowed for a 10 percent rating for characteristic pain with motion.  A 20 percent rating would have required muscle spasm with extreme bending.

7.  The VA's use of VASRD 5293, though also inexact, allows for a higher rating.  It is the VA policy to use the analogous rating that will result in the highest rating.  An assignment of 20 percent for "moderate; recurring attacks" best describes the applicant.  His pain was characterized by his neurosurgeon as moderate.  In order to assign a 40 percent rating the pain would have to be characterized as "severe."  There is no 30 percent rating for VASRD 5295 and the VA rating appears to be an error.

8.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant was properly rated in accordance with provisions of the VASRD for his condition at the time.  There is no evidence to support a higher rating or medical retirement.

9.  Evidence shows he did not complete a minimum of 20 years of active service; therefore, he was not eligible for voluntary retirement due to length of service.

10.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the PEB's recommendation.  There is no error or injustice in this case.  Therefore, in view of the foregoing evidence, he is not entitled to the requested relief.

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)                                         AR20100018744





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ABCMR Record of Proceedings (cont)                                         AR20100018744



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