IN THE CASE OF:	  

		BOARD DATE:	  14 February 2012

		DOCKET NUMBER:  AR20110016107 


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 an increase in the disability rating assigned by the physical evaluation board (PEB).  

2.  The applicant states, in effect, he was assigned a 10-percent (%) disability rating but he believes he deserves a higher rating.  He does not believe all of the evidence was reviewed at the time.  He was found unfit and put out.  His injury occurred while he was serving in an active duty status and it is severe enough that he is unable to find or keep a job in civilian life.

3.  The applicant provides Department of Veterans Affairs (VA) and service medical records.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the Regular Army on 18 January 2006 and he held military occupational specialties (MOS) 91G (Fire Control Repairer) and 31B (Military Police).  He served in Kuwait/Iraq from 
7 March 2007 to 15 May 2008.

2.  In August 2010, the applicant complained of pain in his back.  He was subsequently evaluated at Westfield Army Community Hospital, Fort Campbell, KY.  His narrative summary (NARSUM) stated:

	a.  He hurt his back during advanced individual training when he fell during a road march.  In June 2006, he underwent a magnetic resonance imaging that showed disc degeneration.  His pain continued throughout his service, including during deployment, but he continued to Soldier on.  He underwent physical therapy but not surgery.  He is unable to wear body armor and full gear because it further complicates the lower back pain.  He pursued a medical MOS retention board but he was unsuccessful.   

	b.  His diagnosis was that of degenerative disc disease of the lumbar spine with disc herniations at L4-L5, L5-S1 with lumbar neuritis, medically unacceptable in accordance with chapter 3 of Army Regulation (AR) 40-501 (Standards of Medical Fitness) and a history of intermittent knee pain, medically acceptable.  He failed to meet retention standards of AR 40-501 and he was recommended for entry into the Physical Disability Evaluation System (PDES).

3.  On 9 August 2010, a medical evaluation board (MEB) convened at Fort Campbell, KY, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of degenerative disc disease of the lumbar spine with disc herniation at L4-L5, L5-S1 with lumbar neuritis and the medically acceptable condition of bilateral intermittent knee pain.  The MEB recommended referral to a PEB.  He agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

4.  On 23 September 2010, an informal PEB convened at Fort Sam Houston, TX. The PEB found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to intervertebral disc syndrome – lumbar spine.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD), assigned code 5243, and granted him a 10% disability rating.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  The PEB also indicated that:

	a.  An examination showed the applicant had no tenderness, no spasm, or guarding, no neurosensory deficit, normal gait, and forward flexion of 80 degrees and a combined range of motion at 230 degrees.

	b.  His diagnosis of intervertebral disc syndrome – lumbar spine included his lumbar neuritis.  However, the lumbar spine neuritis is not unfitting either separately or in combination with his other condition.  This is a longstanding and intermittent condition that did not appear to have interfered with the performance of his duties. 

	c.  His condition of bilateral intermittent knee pain met retention standards and it was not found unfitting; therefore, it was not rated.
5.  The applicant was counseled regarding his medical condition and of the findings and recommendations of the PEB.  He was also counseled and given a full explanation of the results of the findings and the recommendations, and of his rights under the law.  Subsequent to this counseling, on 5 January 2010, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

6.  He was honorably discharged from active duty on 5 January 2011 by reason of disability with entitlement to severance pay under the provisions of chapter 4 of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 4 years, 11 months, and 18 days of active service.  He received $31,006.80 in severance pay.

7.  Title 10, USC, 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 percent.  Title 10, USC, 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 percent.

8.  AR 635-40 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.

9.  AR 40-501 (Standards of Medical Fitness) 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 physical evaluation board rates all disabilities using the VA Schedule for Rating Disabilities.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

10.  VASRD Code 5243 applies to intervertebral disc syndrome described as lumbar disc disease.  A 10% rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine is 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. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant fell during training in 2006 and he experienced back pain since that fall.  His pain increased after deployment to Iraq.  He underwent a medical examination that warranted his entry into the PDES.  He underwent an MEB which recommended referral to a PEB.  The PEB found his back condition (intervertebral disc syndrome – lumbar spine) prevented him from performing his duties and determined he was physically unfit. 

2.  His examination showed forward flexion of 80 degrees and a combined range of motion of 230 degrees.  According to the VASRD, a 10% rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees or a combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees.  The PEB recommended separation with entitlement to severance pay.

3.  He was counseled regarding his medical condition and of the findings recommendations of both the MEB and PEB.  He was also given a full explanation of the results of the findings and recommendations of both boards and of his rights under the law.  Subsequent to this counseling, he concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

4.  The PEB was tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated him at 10% for his back condition.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30%, by law he was only entitled to severance pay.

5.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of the circumstances in this case, there is insufficient evidence to grant 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)                                         AR20110016107



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ABCMR Record of Proceedings (cont)                                         AR20110016107



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