IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110023539 


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 her records to show the Physical Evaluation Board (PEB) assigned her a higher rating than 10–percent (%). 

2.  The applicant states the 10% rating is inadequate considering the extensive care and surgery she needed after she was discharged.  Due to the type of injury and care she received it is typical that further treatment will be needed within the next few years.  Since being discharged she has already had two major spinal fusion surgeries.  She was misled to believe that 10% rating was normal and acceptable in her situation.  When her Medical Evaluation Board (MEB) paperwork was completed her doctor was not forthright in explaining that she could require further surgery.  She did not learn of this until after her paperwork had been submitted by the PEB Liaison Officer (PEBLO).  Then she was told it was too late to change anything.

3.  The applicant provides:

* DA Form 3349 (Physical Profile)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Narrative Summary (NARSUM)
* DA Form 3947 (MEB Proceedings)
* DA Form 199 (PEB Proceedings)
* Counseling Acknowledgement
* DA Form 5893 (Soldier's MEB/PEB Counseling Checklist)
* Medical document, dated 28 March 2011
* Email to and from the Inspector General)
* Photographs of her incision and various X-rays
* DD Form 2808 (Report of Medical Examination)
* DD Form 2807 (Report of Medical History)
* Various chronological records of medical care
* DD Form 2697 (Report of Medical Assessment)
* DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement)
* Enlisted Record Brief
* DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members)
* Multiple civilian medical records subsequent to discharge

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 July 2010 and she was subsequently assigned to the 95th Adjutant general battalion, Fort Sill, OK, for completion of training.  

2.  On 31 August 2010, she reported that she had fallen from the monkey bars while traversing the confidence course.  She landed in the sand pit and immediately experienced low back pain.  Her pain worsened and she was transported to the troop medical clinic.  X-rays revealed a compression fracture of L1.  She was subsequently admitted to a civilian hospital for evaluation.

3.  Her NARSUM, dated 10 January 2010, shows:

	a.  On 2 September 2010, she underwent T12-L1 and L1-2 laminectomy, discectomy, and foraminotomy with posterior lumbar interbofy fusion along with transpedicular internal fixation.  Her back pain initially decreased in severity; however, after 4 months of rehabilitation she continued to experience pain.  

	b.  Her civilian doctor noted that it was unlikely that she would be able to resume all the activities expected of a Soldier and that leaving the military on medical grounds appeared appropriate at that point.

	c.  She continued to experience back pain with flares at a rate of 3 times a week.  She was taking medications for pain but she reported no relief.  Her range-of-motion (ROM) testing showed a 20-degree forward flexion, 15-degree extension, 15-degree left side bending, 15-degree right side bending, 20-degree left rotation, and 15-degree right rotation.  The ROM restrictions were due to subjective pain as well as mechanical restriction from the two-level fusion procedure.  Her back condition was stable and no drastic changes were expected in her condition in the next 5 years.  
	d.  Her final diagnosis was that of a compression fracture of L1, sensory paresthesia of left lateral hip and thigh (medically acceptable), and intermittent hip pain (medically acceptable).  She was recommended for entry into the PDES.

4.  On 4 March 2011, an MEB convened at Reynolds Army Community Hospital, Fort Sill, OK, 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 compression fracture of L1 and the medically acceptable conditions of left lateral hip and thigh and intermittent hip pain.  The MEB recommended her referral to a PEB.  She was counseled and agreed with the MEB's findings and recommendation and indicated she did not desire to continue on active duty.

5.  On 12 April 2011, an informal PEB convened at Fort Sam Houston, TX.  The PEB found the applicant's condition prevented her from performing the duties required of her grade and military specialty and determined that she was physically unfit due to spinal fusion, lumbar spine following vertebral fracture
of L1.  The PEB noted that:

* Her condition improved after the fusion but she was unable to continue training; this is considered unfitting because she was unable to lift or perform impact activities or wear heavy equipment
* Her examination showed normal contour of the thoracolumbar spine
* There was tenderness without spasm and her Gait was normal
* Her forward flexion was 80 degrees and her combined ROM was 200 degrees
* Her strength was 5/5 without motor deficits
* Her left lateral hip and thigh and intermittent hip pain met retention standards and were not found unfitting either independently or in combination with other conditions 

6.  She was rated under the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD), assigned codes of 5235 and 5241, and granted a 10% disability rating.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.

7.  Throughout the disability process, she was counseled by a PEBLO and informed of her rights at each step of the process.  Her counseling culminated on 14 April 2011 when she was counseled by a PEBLO regarding her medical condition, the findings of the MEB, the PEB process, and her rights under the law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived her right to a formal hearing.

8.  On 29 April 2011, she was honorably discharged under the provisions of chapter 4, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability, severance pay, non-combat related. The DD Form 214 she was issued shows she completed 9 months and 17 days of active service and received severance pay in the amount of $10,378.80.

9.  She submitted various documents related to treatment/doctor visits after discharge from active service as follows:

* Multiple photographs, X-rays, and images
* Multiple reports of follow-up evaluations subsequent to discharge
* Email exchange between her father and the Inspector General's Office
* Various chronological records of medical care related to her injury

10.  Army Regulation 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.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

11.  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.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

12.  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%.

13.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  In the applicant's case, several factors were considered to reach the rating indicated:

	a.  4.10 (Functional Impairment):  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support.  This imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person’s ordinary activity.  In this connection, it will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity.

	b.  4.40 (Musculoskeletal System):  Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.

	c.  4.45 (Joints):  As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); 
(d) Excess fatigability; (e) Incoordination, impaired ability to execute skilled movements smoothly; or (f) Pain on movement, swelling, deformity or atrophy of disuse.  Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations.  For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints.  The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions.

	d.  4.59 (Painful motion):  With any form of arthritis, painful motion is an important factor of the disability, the facial expression, wincing, etc., on pressure or manipulation should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.

	e.  4.71a (Schedule of Ratings for the Musculoskeletal System).  VASRD Code 5235 applies to vertebral fracture or dislocation and VASRD Code 5241 applies to spinal fusion.  For spine injuries, a 10% rating is assigned when the 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	.

	f.  ratings for spine injuries change as follows: Unfavorable ankylosis of the entire spine, 100%; Unfavorable ankylosis of the entire thoracolumbar spine, 50%; unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, 40%; forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine, 30%; and forward flexion of the thoracolumbar spine I greater than 30 degrees but not greater than 
60 degrees; or, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine is 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, 20%. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained a back injury that warranted entrance into the PDES. She underwent an MEB which recommended that referral to a PEB.  The PEB found her medical condition prevented her from reasonably performing the duties required of her grade and military specialty.  She was determined to be physically unfit for further military service.  The PEB recommended separation with entitlement to severance pay with a 10 percent disability rating.  The applicant agreed with the findings and recommendations and waived her right to a formal hearing of her case.

2.  The applicant's rating was assigned based on a finding that at the time of separation her ROM testing showed a 20-degree forward flexion, 15-degree extension, 15-degree left side bending, 15-degree right side bending, 20-degree left rotation, and 15-degree right rotation.  The ROM restrictions were due to subjective pain as well as mechanical restriction from the two-level fusion procedure.  According to the VASRD, such finding warranted a 10% disability rating.  

3.  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 at 10% for her back condition.  There is no evidence to support a higher rating for her condition.

4.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated her condition 10% disabling.  There is no evidence that he should have been awarded a higher rating.  Since this rating was less than 30%, by law she 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.  She has not submitted substantiating evidence or an argument that would show an error or injustice occurred in her 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)                                         AR20110023539



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ABCMR Record of Proceedings (cont)                                         AR20110023539



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