IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110013077 


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 his discharge with severance pay be changed to a disability retirement.

2.  The applicant states he should have been medically retired instead of discharged with severance pay in 1997.  He was discharged after 15 years of service due to a medical condition that was service related.  He never stopped trying to correct this injustice.  He hired into the Department of Defense (DOD) as a civilian in July 2009.

3.  The applicant provides:

* two addenda to his Medical Evaluation Board (MEBD)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
11 September 1996
* DA Form 199, dated 27 October 1996
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 22 February 1997
* two letters, dated 27 November 1996, to his Congressional representative
* his letter, dated 30 November 1996, to his Congressional representative
* a letter, dated 25 February 1997, from the U.S. Army Physical Disability Agency (USAPDA) to his Congressional representative
* service medical records



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.  He was commissioned a second lieutenant in the U.S. Army Reserve on 
17 April 1992 and entered active duty that date.  He had previously served          9 years, 4 months, and 11 days of active service and 1 year, 10 months, and       3 days of inactive service.

3.  The proceedings and narrative summary for his MEBD are not available for review.  However, an addendum to his MEBD was submitted on 19 August 1996 by Dr. (major) E_______n.

	a.  The applicant was evaluated in 1992 for a 4-year history of low back pain that worsened over a 4-month period.  He was diagnosed with a focal herniated nucleus pulposus (HNP) by CT scan on 24 June 1992 and on 17 July 1992 he underwent a left L5-S1 hemilaminectomy  and diskectomy to reduce the HNP.  He had complete resolution of symptoms and returned to full activities.

	b.  In late 1995, he experienced sudden onset of sharp, radicular-like pain which may have been associated with lifting a rucksack during unit training.  A repeat CT scan revealed a focal L5-S1 HNP.  A follow-on magnetic resonance imaging (MRI) on 25 February 1996 showed a mild increase in contrast enhancement around the left S1 nerve root consistent with post-operative scar tissue.

	c.  On 25 April 1996, he underwent a left L5-S1 hemilaminotomy and diskectomy.  The operative report states that a moderate amount of scar tissue was still adherent to both the thecal sac and the S1 nerve root prior to closure.  On follow-up 13 May 1996, he stated that he had a significant reduction in the radicular pain symptoms but not complete recovery.  After 30 days convalescent leave he returned to work for half days.

	d.  He continues to experience a significant amount of left radicular pain, worsened by prolonged sitting, any lifting activity and prolonged physical activity. He continued to work at the regimental Aid Station but has not been able to return to full time duties due to continued pain.

4.  On 11 September 1996, an informal PEB found the applicant unfit for duty due to low back pain (LBP) status post repair L5-S1 partial hemilaminectomy and L5-S1 partial diskectomy with left lower extremity pain.  

	a.  He was given an analogous rating (5299) under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) diagnostic code 5295  (Lumbosacral strain) of 10 percent.

	b.  A combined rating of 10 percent was recommended.  It was also recommended that he be separated with severance pay if otherwise qualified.  He did not concur with the findings and demanded a formal hearing with personal appearance.   

5.  A second addendum to his MEBD was submitted on 19 September 1996 by Dr. E_______n.

	a.  The applicant experiences a significant amount of low back and left lower extremity radicular pain requiring daily doses of non-sedating analgesic medications.  He also has periodic insomnia due to continued pain requiring low dose sleep agents.  

	b.  His physical exam in the clinic was significant for constant radicular pain in the L5-S1 distribution and parasthesia of the left 3rd through 5th toes.  On multiple exams it had been shown that he has persistent loss of the left Achilles deep ankle tendon reflex (DTR) to the S1 nerve root distribution.

	c.  The doctor stated the applicant's pain control was still a major issue and use of a spinal cord stimulator was being considered.  He will most likely never have return of function of his ankle reflex and will constantly be limited in his physical activities and lifting abilities.  

	d.  The doctor requested the PEB re-examine the applicant's packet in view of his chronic pain syndrome, loss of motor/DTR function and decreased functional status.

6.  He was notified a formal PEB hearing was to be held on 23 September 1996. However, the records do not show any evidence of a formal hearing having been held.
7.  On 27 October 1996, an informal PEB reconsideration found the applicant unfit for duty due to LBP status post repair L5-S1 partial hemilaminectomy and L5-S1 partial diskectomy with left lower extremity pain with weakness left ankle.  The addenda dated 19 August 1996 and 17 October 1996 were considered.

	a.  He was given an analogous rating (5299) under VASRD diagnostic code 5293  (Intervertebral disc syndrome) of 20 percent.

	b.  A combined rating of 20 percent was recommended.  It was also recommended that he be separated with severance pay if otherwise qualified.  He did not concur with the findings but he waived a formal hearing and did not submit a written appeal.

8.  On 22 February 1997, the applicant was discharged due to disability with severance pay.  

9.  In a letter, dated 27 November 1996, from Dr. E_______n to the applicant's Congressional representative the doctor compared the applicant's disability rating of 20 percent to another case of an unnamed Soldier whose disability rating was 40 percent.  He states that as a bare minimum, comparing the two cases, the applicant should receive a disability rating of 40 percent.

10.  In a letter, dated 25 February 1997, to the applicant's Congressional representative, the USAPDA stated they completed a review and affirmed the applicant's condition was appropriately rated at 20 percent disabling.  

	a.  The following criteria for rating backs had been implemented for the PEBs since 1990:

		(1)  Low back pain with a normal physical examination - zero percent

		(2)  Recurrent low back pain with pain on motion - 10 percent; or

		(3)  Recurrent low back pain with pain on motion, and paravertebral muscle spasms - 20 percent.

	b.  To receive over 20 percent his condition must be predicated upon objective medical findings of neurological involvement.  These signs must be weighted by their severity of each objective sign and the other medical findings.  Based upon a weighing of all the evidence it was determined the applicant did not rate higher than a 20 percent disability rating.

	c.  Attempts at comparisons with other unnamed and unknown cases is not determinative nor of any assistance in the review of individual and unique cases.

	d.  It was concluded he was given a full and fair hearing in accordance with the laws and regulations and the findings were in accordance with the evidence of record.  The USAPDA indicated he was rated 20 percent disabling for recurrent LBP with pain on motion and paravertebral muscle spasms.

11.  38 Code of Federal Regulations Part 4, Part 4 - Schedule for Rating Disabilities, in effect at the time, stated the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.

	a.  Section 4.20 (Analogous ratings) stated that when an unlisted condition is encountered it will be permissible to rate under a closely-related disease or injury
in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  This rating schedule is primarily a
guide in the evaluation of disability resulting from all types of diseases and
injuries encountered as a result of or incident to military service.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings.  Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.

	b.  Section 4.71a (Schedule of ratings—musculoskeletal system) provided the criteria for the level of disability for the following VASRD codes.

		(1)  5293 Intervertebral disc syndrome:

Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief



60
Severe; recurring attacks, with intermittent relief
40
Moderate; recurring attacks
20
Mild
10
Postoperative, cured
0
		(2)  5295 Lumbosacral strain:

Severe; with listing of whole spine to opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion





40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position
20
With characteristic pain on motion
10
With slight subjective symptoms only
 
0
12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant was able to work on a daily basis (even if only half a day).  His discomfort was chronic in nature but he cannot be described as being prostrate in severe pain with only intermittent relief.  

2.  His condition is rated under an analogous rating due to his exact condition not being listed in the VASRD.  Therefore, the VASRD code used is primarily a guide and will not necessarily meet the exact criteria for the level of disability awarded.

3.  His disability rating was primarily for pain.  He continued to work, although for only half days.  The evidence does not show he was suffering severe recurring attacks with intermittent relief.  Therefore, a disability rating of 20 percent is appropriate.  

4.  His condition was evaluated by a PEB, reconsidered by a PEB, and reviewed by the USAPDA.  He has not provided any evidence that was not evaluated by the PEB and the USAPDA almost 5 years ago.  

5.  In view of the above, there is an insufficient basis the grant the relief requested.


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)                                         AR20110013077



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ABCMR Record of Proceedings (cont)                                         AR20110013077



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