IN THE CASE OF:	  

		BOARD DATE:	    13 October 2011

		DOCKET NUMBER:  AR20110003932 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired and to reflect he is a combat veteran.

2.  The applicant states:

	a.  he wants his DD Form 214 updated to reflect his combat veteran status as required by the Department of Veterans Affairs (DVA) to substantiate the status of veterans who served in a theater of combat operations.

	b.  while serving at the White House Communications Agency he was temporary duty (TDY) on several trips to the Middle East that resulted in him receiving hazardous duty pay and tax free status, but his military records do not reflect any such trips.

	c.  in a letter, dated 17 September 2010, he remains adamant his Physical Evaluation Board (PEB) was done incorrectly and if it had been done correctly he would have been awarded a higher disability rating and subsequently would have been medically retired.  The conditions that were used to determine his disability rating (range of motion (ROM)) have changed significantly following the Intradiscal Electrothermography (IDET) that was performed on 7 November 2008 in comparison to how it was rated in July 2008 when his Medical Evaluation Board (MEB) began.  He never received the optimum hospital and medical treatment benefits as required in the Department of Defense Instruction because his medical condition had never been properly diagnosed or treated before his PEB was closed.

	d.  in July 2008, a PEB was initiated due to his lower back pain.  In September 2008, a discography was performed to determine the source of his lower back pain.  During the course of the procedure it was determined a disc was torn and as a result was leaking fluid into his back plus intervertebral disc degeneration was revealed.  Based on this new diagnosis, his physician provided him with several new treatment options.

	e.  in October 2008, he was sent a letter by the PEB that his case had been closed and it was forwarded to the U.S. Army Physical Disability Agency (USAPDA) for review even though he had never received treatment for a torn disc.

	f.  The information used for both the PEB to determine his disability rating and his DA Form 199 (PEB Proceedings) contain outdated and inaccurate information.  Both documents describe his disability as "chronic low back pain" and "not a surgical candidate" but he was given several options including surgery.  He was only seen by Dr. C----- once in his military career and Dr. C___ determined his disability rating based upon his forward flexion in July 2008.  Given the determination of the source of his pain for the first time (torn disc), after the IDET, and the possibility of other surgical options, his entire medical separation was based upon inaccurate and outdated information.
 
3.  The applicant provides:

* a self-authored letter to whom it may concern, dated 17 September 2010
* his letter to a Member of Congress (MOC), dated 6 January 2009
* an undated Memorandum for Record, subject:  Medical Care, from
CPT M-----, Pain Management Clinic, Walter Reed Army Medical Center, Washington, D.C.
* his Memorandum for Record, subject:  Request extension of service through 30 Apr 2009, dated 1 December 2008
* a memorandum, subject:  Extension of Final-Out Day for (applicant's name), from LTC K---, Deputy Commander for Clinical Services, Fort Meade, MD, dated 11 December 2008
* two DA Forms 3349 (Physical Profile), dated 7 November and
1 December 2008
* an information sheet from ORATEC Interventions, Inc., entitled "Activity Guidelines After Your IDET"


* an information sheet from the Physical Therapy Section, WRAMC, entitled "Physical Therapy Post-op Protocol for IDET"
* a letter to him from his MOC, dated 21 January 2009
* a letter from the USAPDA to his MOC, dated 14 January 2009
* his letter to his MOC, dated 3 February 2009
* DA Form 199, dated 18 September 2008
* a memorandum from the USAPDA, subject:  Appeal of PEB Formal Proceedings, dated 14 October 2008, with supporting documentation
* a letter from his MOC, dated 28 April 2009, with USAPDA's response, dated 17 April 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 April 2001.  He completed training and he was awarded military occupational specialty 25B (information technology specialist).

2.  His MEB is not available for review; however, documentation from the USAPDA states on 9 July 2008 an MEB diagnosed the applicant with chronic low back pain.  Apparently the MEB recommended referral to a PEB and the applicant agreed with the MEB's findings and recommendation.

3.  His informal PEB is not available for review; however, documentation from the USAPDA states on 25 July 2008 an informal PEB found the applicant physically unfit due to chronic low back pain.  The PEB recommended his separation from the Army with severance pay (10 percent (%)).  He disagreed with the findings and demanded a formal hearing.

4.  He provided a health record, dated 12 September 2008, which indicates a functional anesthetic discography was performed revealing a degenerative disc at L5-S1 with a large posterior annular tear that was likely the primary pain generator for his low back pain.  He was offered IDET for treatment of the pain if it worsened or continued.

5.  On 18 September 2008, a formal PEB found the applicant physically unfit due to chronic low back pain which began about 4 years ago without a specific injury or trauma, Veterans Affairs Schedule for Rating Disabilities (VASRD) 5299/5237, 20%.  The disability description states an MRI [Magnetic Resonance Imaging] showed degenerative changes at the L5-S1 level with moderate to marked left neuroforaminal stenosis.  Soldier is able to forward flex to 100 degrees; however, he has pain as he flexes beyond 55 degrees.  Conservative treatment has failed 


to relieve the Soldier's pain and he is not a surgical candidate.  Gait, alignment of the spine, and lower extremity motor examination are all normal.  There was no localized tenderness and Waddell signs were negative.  Rated for 55 degrees of forward flexion and the rating includes consideration of functional loss due to factors such as pain on repeated use and painful motion, fatigability, incoordination, weakness with repetitive use and flare-ups.  The formal PEB recommended his separation with severance pay (20%).  The applicant disagreed with the findings on 8 October 2008.

6.  On 14 October 2008, his appeal was considered and the PEB reaffirmed its previous findings.  The memorandum states:

	a.  although he presented no new objective evidence, his case was carefully reviewed.

	b.  based upon that review, the PEB found no basis for a change in its action in his case and reaffirmed its previous findings.  His unfitting condition, low back pain, was rated for ROM.  His thorocolumbar spine ROM was measured as 100 degrees of forward flexion and non-compensable; however, it was noted he had pain as his flexed beyond 55 degrees.  Therefore, based on forward flexion of 55 degrees, his condition was rated at 20%.  The VASRD awards 20% for
31-60 degrees of forward flexion; therefore, he was appropriately rated.

7.  On 28 October 2008, the USAPDA approved the PEB's findings and recommendation.

8.  A letter from the USAPDA to the applicant's MOC, dated 14 January 2009, states:

* on 7 November 2008, the applicant underwent the IDET
* on 11 December 2008, the Deputy Commander for Clinical Services at Fort Meade requested the applicant's separation date be extended to
7 April 2009 to give the applicant the 6 months needed for physical therapy
* the USAPDA reviewed the case file and determined the findings and recommendations of the PEB were in conformance with the provisions of law and current regulations
* On 6 January 2009, the USAPDA sent a release message to the Fort Myer (VA) Transition Center authorizing the applicant's separation from the service on or before 30 April 2009


9.  A letter from the USAPDA to the applicant's MOC, dated 17 April 2009, states:

We contacted the Medical Treatment Facility (MTF) that conducted the MEB on the applicant to determine whether there was any additional medical information available that would have affected his disability rating.  Today we were notified by the hospital Deputy Commander that the applicant's current medical records reflect no worsening of his condition and that the MEB submitted did reflect his current medical condition.  Accordingly, we will be taking no further action on the applicant's case and he will separate this month with disability severance pay as previously scheduled.

10.  On 30 April 2009, the applicant was honorably discharged for disability, severance pay, non-combat related.  His DD Form 214 does not show any deployments.

11.  The Defense Finance and Accounting Service (DFAS) confirmed the applicant received hostile fire/imminent danger pay (HF/IDP) and combat zone tax exclusion (CZTE) from 22 November 2006 through 3 December 2006 for Jordan (total of 12 days) and from 3 January 2008 through 19 January 2008 for Saudi Arabia (total of 17 days).

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that, after establishing the fact that a Soldier is unfit because of physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of rating.

13.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily 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.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

14.  The VASRD states that VASRD Code 5237 (Lumbosacral or cervical strain) with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease is rated at:


	a.  10% when 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 ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined ROM 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;

	b.  20% when forward flexion of the ghoracolumbar 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 ROM of the thoracolumbar spine not greater than 120 degrees; or, the combined ROM 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;

	c.  30% when forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine;

	d.  40% when 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;

	e.  50% when unfavorable ankylosis of the entire thoracolumbar spine; and

	f.  100% when unfavorable ankylosis of the entire spine.

15.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The regulation provides that for item 18, for an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his PEB was done incorrectly and if it had been done correctly he would have been awarded a higher disability rating and medically retired.  He also contends his condition changed significantly following the IDET performed on 7 November 2008 in comparison to how it was rated in July 2008 when his disability processing began.  

2.  The Army’s rating was dependent on the severity of his condition at the time the rating was made.  Based on forward flexion of 55 degrees, his condition (low back pain), was rated at 20% by a formal PEB on 18 September 2008.

3.  Following the applicant's IDET on 7 November 2008, his separation date was extended to on or before 30 April 2009 to allow for completion of physical therapy.  Prior to his discharge on 30 April 2009, the USAPDA contacted the MTF to determine whether there was any additional medical information available that would have affected his disability rating.  The hospital Deputy Commander reported that his current medical record reflected no worsening of his condition and that the MEB submitted reflected his current medical condition.

4.  There is no evidence of record and the applicant provides no evidence that shows his unfitting condition worsened sufficiently enough after July 2008 to have met the criteria for a higher rating.  Since there is insufficient evidence to show his disability was improperly rated by the formal PEB in 2008, there is no basis for granting the applicant's request for a medical retirement.

5.  He further contends that while serving at the White House Communications Agency he was TDY on several trips to the Middle East.  As a result, he requests correction of his DD Form 214 to reflect his combat veteran status as required by the DVA to substantiate the status of veterans who served in a theater of combat operations.  However, TDY is not always a deployment.  Since it cannot be determined what he was doing in Jordan for 12 days or in Saudi Arabia for
17 days, it does not appear these were deployments.  Therefore, there is insufficient evidence in which to correct his DD Form 214 to show a deployment in a theater of combat operations.

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)                                         AR20110003932



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ABCMR Record of Proceedings (cont)                                         AR20110003932



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