IN THE CASE OF:	  

		BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100029747


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 a medical retirement.

2.  The applicant states he was discharged for a physical disability at a
20 percent (%) disability rating percentage for a lumbar fusion.  The Department of Veterans Affairs (VA) has rated him 60% disabled.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Narrative Summary (NARSUM)
* DA Form 1397 (Medical Evaluation Board (MEB) Proceedings)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* A portion of his VA Rating Decision

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 enlisted in the U.S. Army Reserve for 8 years on 3 October 1990.  He performed active duty for training from 8 November 1990 through 16 February 1991 and was awarded military occupational specialty (MOS) 19E (Armor Crewman).

3.  On 1 April 1997, the applicant enlisted in the Regular Army for 4 years.  He was awarded MOS 52D (Power Generation Equipment Repairer).  He completed the Basic Airborne Course and received the Parachutist Badge, and his MOS was indicated as 52D1P.

4.  The applicant injured his back in a parachute jump in 1998.  On 5 September 2001, a NARSUM was completed on the applicant.  It stated he was 29 years old, with severe low back pain, bilateral radicular pain, numbness and weakness, and erectile dysfunction.  The radicular pain and erectile dysfunction were resolved, but he continued to suffer daily from chronic, mechanical low back pain which interfered with activity.  He was diagnosed with mobile grade 1 (least severe) spondylolisthesis and degenerative disc disease at L4-5 and L5-S1 with bilateral neuroforaminal stenosis at L5-S1.

5.  He was referred to the physical disability evaluation system (PDES) for an MEB.  The MEB was held on 17 January 2002 at Darnall Army Hospital, Fort Hood, TX.  It considered a diagnosis of lumbar spondylolisthesis with low back pain.  He was recommended for a PEB.

6.  On 30 January 2002, an informal PEB convened at Fort Sam Houston, TX, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to chronic low back pain, with no neurological abnormality or muscle spasms, status post L4-S1 lumbar fusion in treatment of spondylolisthesis.  He was rated under the VA Schedule for Rating Disabilities (VASRD) and was granted a 10% disability rating based on codes 5295 and 5299 (chronic low back pain with multi-level degenerative disc disease).  The PEB recommended the applicant be separated with entitlement to severance pay if otherwise qualified.

7.  The applicant concurred with the PEB's findings on 4 February 2002 and waived a formal hearing.

8.  The applicant was honorably discharged by reason of disability with severance pay of $17,523.00 on 24 April 2002.
9.  On 25 April 2002, the VA rated the applicant 40% disabled for sensory deficits, lumbar fusion, status post injury.  This was increased to 60% on 30 April 2004.

10.  The applicant's medical condition is characterized as follows:

   a.  Lumbar spondylolisthesis is a condition in which one vertebral body becomes progressively out of alignment with another in a front-to-rear orientation.  Typically, the problematic vertebral body is a certain degree forward of the body below it.  Different magnitudes of displacement are described as the "grade", such as, grade 2 which is worse than grade 1.  There are relatively common forms of spondylolisthesis which can occur along with degenerative arthritis and lumbar spinal stenosis although these conditions tend not to be as structurally unstable as other forms.  Instability means abnormal sliding motion and change in the alignment during spinal movements.  In addition to "mechanical" spinal discomforts due to abnormal stresses on ligaments, disc and muscles, spondylolisthesis can be associated with nerve compressions due to a variety of reasons.  First, the intervertebral disc which used to fit neatly between the vertebral bodies is obligated to "hang over" the edge of one body toward the front and the other body toward the rear.  Often, the rear surface of the disc just bridges in a straight or slightly curved line from the bottom edge of one body to the top edge of the other.  However, a herniated lumbar disc can also occur at this region which can contribute to nerve compression.  At other times, there is compression or irritation of nerves as they exit through the side openings ("foramina") of the spinal canal and pass underneath abnormal facet joints or abnormal portions of the lamina.  Constriction (stenosis) of the entire spinal canal can occur but is most often associated with arthritic forms of spondylolisthesis.

   b.  Spondylolisthesis can be a progressively acquired spinal deformity occurring in the context of severe degenerative arthritis or it can occur as a result of a (usually hidden) birth abnormality of the spine.  Both forms usually develop slowly over the course of many years and a person might not have any symptoms he considers abnormal until the process has been well established.  Many people have no neurological symptoms and some even have few mechanical symptoms other than what they have come to know as "muscular pains".  Degenerative spondylolisthesis can be described as a deformity of the facet joints which normally prevent forward sliding of one vertebral body on another.  The bone structure slowly yields to forces producing malalignment and is remolded.  Many individuals will be found to have no instability or change in alignment during spinal movement, but some will be unstable.  Occasionally, the upper vertebral body involved in the misalignment is displaced to the rear rather 


than toward the front, a condition sometimes called "retrolisthesis," which is usually not severe but can also be unstable.  In the congenital form due to birth abnormality, there is malformation of the facet joints or a portion of the lamina "pars defect" which renders the facet joints less effective in stabilizing the spine against forward and backward movements.  Over the first few decades of life, the accumulated stresses progressively defeat the remaining structures which are maintaining alignment and the forward displacement of the upper body begins.  Possibly, the natural degeneration of the intervertebral disc between those bodies eliminates the strongest bond and leads to progressive slippage.  Occasionally, patients will notice sudden worsening of previously mild low back pains following physical exertion or an accident.  At other times, low back pain develops slowly without notable incidents.

   c.  Lumbar spondylolisthesis can be managed without surgery if symptoms are relatively mild, especially if the amount of misalignment is slight and if there is no apparent change in misalignment with bending movements on X-ray.  It stands to reason that, the more a person physically uses his low back, the more likely a spondylolisthesis will be symptomatic.  A lumbar corset brace will provide added support during times of anticipated physical exertion and may be enough to protect someone from overly straining a structurally weakened spine.  Anti-inflammatory medications can alleviate some of the symptoms following flare-ups.  If there is notable instability or incapacitating mechanical pain, these remedies might prove insufficient.  Neurological symptoms due to compression of exiting nerves by abnormal tissues, herniated lumbar disc or lumbar spinal stenosis, can also precipitate a need for surgical decompression.  Surgery, when necessary, involves a spinal fusion for which there are multiple surgical techniques available, depending on the circumstances.  Occasionally, the consideration for surgery is mostly neurological or mostly mechanical but both conditions are treated by the surgical strategy.  If there are no neurological symptoms, fusion surgery to stabilize the area might be appropriate without nerve decompression.  However, nerve decompression without fusion is considered most often in cases of stable degenerative spondylolisthesis and is still a matter of some controversy.  Whether or not a person needs fusion surgery is frequently a judgment which must be made after careful review of diagnostic tests, medical history and examination by a surgeon.  The prospect should never be taken lightly because spinal fusion represents a major compromise with nature, permanently altering the structure of the spine in a dramatic way.  Fusion can be accomplished by bone grafts, threaded cylinders placed in the disc space, or a variety of metal devices attached to the spine (usually in combination with bone graft).  Lumbar bracing after surgery is common for a period of time to allow bone grafts to heal in place.

11.  The VASRD is 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.  

   a.  Due to the differences in the Army and VA applications of rating policies rating results may vary.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied from the VASRD to the unfitting conditions.  Conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness.  When an unlisted condition is encountered, it is rated under a closely related disease or injury in which not only the functional, but the anatomical localization and symptomatology are closely analogous.  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built-up” using the first two digits from the part of the schedule most closely identifying the part, or system, of the body involved.  The last two digits will be “99” for all unlisted conditions.

	b.  While both the Army and the VA use the VASRD, not all the general policy provisions set forth in the VASRD apply to the Army.  Consequently, disability ratings may vary between the two agencies.  The Army rates only conditions determined to be physically unfitting, compensating for loss of a career.  The VA may rate any service-connected impairment, thus compensating for loss of civilian employability.  Also, the Army's ratings are permanent upon final disposition while VA ratings may fluctuate with time, depending upon the progress of the condition.

	c.  The VASRD assigns disability ratings for code 5295, lumbosacral strain, as follows:

* 00 % – with slight subjective symptoms only
* 10% – with characteristic pain on motion
* 20% – with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position
* 40% – severe: with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of later al motion with osteo-arthritic changes or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  It provides for MEBs, 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 chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

13.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  The VASRD specifies diagnostic codes for a wide spectrum of diseases and physical impairments covering all major body systems.  Each diagnostic code specifies disability ratings percentages in increments of ten, beginning with 0% and continuing to 100%, if so indicated.  The specific disability rating expressed as a percentage indicates the degree to which the rated condition has impaired the whole person.  When a PEB determines that a Soldier is unfit for continued military service by reason of a physical disability, the disabling condition is rated in accordance with the VASRD as modified in Army Regulation 635-40, Appendix B, and Department of Defense Instructions 1332.38 and 1332.39.

14.  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 of at least 30%.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

15.  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 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.  Throughout the applicant’s disability processing, and during his medical consultations leading up to his disability processing, his chief complaint was low back pain, with no evidence of neurological abnormality or muscle spasms.  The low back pain was the basis for his 10% disability rating and discharge from the Army.

2.  The fact that the VA may have granted a higher disability rating is not evidence that the Army’s rating was in error or unjust.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its reason or authority for separation.

3.  A rating of 40% or higher under VASRD Code 5295 requires objective medical findings of neurological involvement.  In the absence of such findings the highest rating he could have received would have been 20%.  The medical evidence of record supports the determination that the applicant’s unfitting condition was properly diagnosed and rated at the time of his separation.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100029747



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ABCMR Record of Proceedings (cont)                                         AR20100029747



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