IN THE CASE OF:	  

		BOARD DATE:	    6 September 2012

		DOCKET NUMBER:  AR20120002410 


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 Physical Evaluation Board (PEB) disability rating be corrected as follows:

* thoracolumbar spine increased to 40%
* neurogenic bladder increased from 0% to 40%

He also requests each injury be categorized as combat-related as they were incurred during a combat patrol.

2.  The applicant states the PEB misapplied the provisions of Title 38, Code of Federal Regulations (CFR), part 4 (Schedule for Rating Disabilities) when rating the thoracolumbar spine.  The PEB erred when determining his neurogenic bladder condition was not service ending in type.  The urinary frequency and side effects of the medications to treat it are severe enough to cause recurring absence from duty and risk of heat stroke.

	a.  The PEB based its decision on the fact that the evaluating physical therapist stated forward flexion was 43 degrees.  Bending to this degree during the exam required assistance from the physical therapist to return to an upright position, and is a subjective measurement, even with a goniometer.  The PEB did not rate the L-3 compression fracture.  The PEB determined there was no compression fracture because it was not seen on the MRI in the planes taken at Landstuhl Regional Medical Center (LRMC).

	b.  The Department of Veterans Affairs (VA) initially awarded him 40% for favorable ankylosis of the thoracolumbar spine.

	c.  The PEB misapplied the standard of Army Regulation 40-501 (Standards of Medical Fitness), section 3-17(e) where in states one of the causes for referral to a Medical Evaluation Board (MEB) is incontinence of urine, due to disease or defect not amenable to treatment and of such severity as to necessitate recurrent absence from duty.  If he had remained on active duty he would have been able to document necessitated absence from duty due to his urinary frequency.  Continuing on active duty and being in a combat-arms branch would have been impossible with this condition and even his ability to take the physical fitness test would have been severely inhibited.

	d.  The PEB's decision is in error and unfair to award a 0% disability rating for post-traumatic stress disorder (PTSD) when the VA awarded him a 50% disability rating.

3.  The applicant provides 11 enclosures with a table of contents.

CONSIDERATION OF EVIDENCE:

1.  On 16 May 1990, he was commissioned a second lieutenant in the Mississippi Army National Guard (MSARNG).  He had 3 years, 1 month, and 15 days of prior enlisted service in the MSARNG.  He continued to serve in the ARNG and the U.S. Army Reserve (USAR) until the date of his retirement.

2.  He completed a period of active duty from 15 December 2004 to 28 February 2006.

3.  He provided a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 15 December 2005.  He was injured on 28 October 2005.  He had an exacerbation of lower back pain after coming down off a mountain wearing full gear in Iraq on 28 October 2005.

4.  A VA Rating Decision, dated 21 March 2007, granted him service-connection for right sided disc bulge at L5-S1 with chronic low back pain under VA Schedule for Rating Disabilities (VASRD) Code 5243 - intervertebral disc syndrome.  His range of motion was extremely limited by pain.  An evaluation of 40% was granted for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Since there was likelihood of improvement the assigned evaluation was not considered permanent and he was subject to a future review examination.  It was noted that the thoracic spine and the lumbar spine were evaluated together as one unit.  This rating was based on evidence that included VA examinations dated 16 December 2006 and 27 February 2007.

5.  The VA Rating Decision, dated 21 March 2007, denied service-connection for frequent urination (claimed as occasional bladder disturbance).

6.  A Narrative Summary (NARSUM) for his MEB was dictated on 4 September 2008.

	a.  In August 2007, he had persistent urinary frequency problems and he had urodynamic testing at the Plano Urology Group.  The urologist explained to him that he did not have a neurogenic bladder due to bulging disk or nerve injury.  He has had no urinary incontinence, but does have frequent urination, and this also makes long travel difficult.  The applicant has carefully reviewed the VA regulations for the last 2 years and feels the urinary symptoms he is having qualify as incontinence.  The examiner stated his urinary unstable bladder with frequent urination met current retention standards.

	b.  An MRI of the spine on 28 August 2006 from the Southwest Diagnostic Imaging Center reported Schmorl's nodes at multiple levels at L4-5 and a small far lateral left sided disk protrusion that lies partially with and partially lateral to the left neural foralmen.  A compression fracture of T3 or L3 was previously mentioned in the patient's notes.  This diagnosis appears to have been made on the basis of an apparent reduced height of L3 on a plain film.  Compression fracture of L3 is not mentioned on any of his MRIs or other L spine series.  It was possible that the diagnosis of L3 compression fracture was an error caused by the Schorl's nodes.

	c.  Range of motion measurements of his thoracolumbar was conducted on 
2 July 2008.  His forward flexion was measured at 43 degrees and he was assessed with a standard goniometer.

7.  An MEB, dated 29 September 2008, found:

	a.  He did not meet retention standards for:

* chronic thoracolumbar pain
* chronic cervicalgia

	b.  He did meet retention standards for:

* unstable urinary bladder with frequent urination
* PTSD
	c.  He was referred to a PEB.

8.  An MEB, dated 1 October 2008, found:

	a.  He did not meet retention standards for:

* Chronic thoracolumbar pain
* chronic cervicalgia

	b.  He did meet retention standards for urinary unstable bladder with frequent urination.

	c.  He was referred to a PEB.

9.  On 21 October 2008, he received a psychiatric evaluation from a major, Medical Corps, a psychiatrist.

	a.  The applicant had experienced symptoms of avoidant behavior, increased arousal, and re-experiencing of traumatic combat events that are consistent with PTSD since his medical evacuation from Afghanistan in November 2005.

	b.  These symptoms were not of significant severity to cause him to seek psychiatric treatment.  He had been able to function occupationally at a very high level as an accountant and has continued his commission as a major in the Texas Army National Guard (TXARNG) without psychotropic medications or therapy.

	c.  He stated he has waited until this time to have his medical conditions evaluated in an effort to collect both his regular retirement and whatever disability compensation he may be eligible for.

	d.  The examiner opines the psychiatric condition of PTSD is not of significant severity to warrant disposition through medical channels based upon his ability to maintain a high level of social and occupational functioning both in his civilian employment and continued service in the National Guard.

10.  On 17 November 2008, a PEB was convened.

	a.  He was found unfit for duty and assigned a disability rating for:

		(1).  Degenerative arthritis of the thoracolumbar spine.  Forward flexion was 43 degrees and combined range of motion was 149 degrees.  Examination showed normal gait, absence of spasm, presence of tenderness, and 5/5 strength.  He received a 20% disability rating under VASRD code 5242 - degenerative arthritis of the spine.

		(2).  Radicular symptoms right hip and right lower extremity.  Rated analogous to VASRD code 8720.  This pain limits his ability to lift and carry weight. Rated as mild incomplete paralysis based on his symptomatology.  He received a 10% disability rating.

	b.  Degenerative arthritis of the cervical spine at C5-6 was not rated.  There was compelling evidence to support a finding that the condition existed prior to service and was not permanently aggravated beyond natural progression by such service.  His neck pain did not become symptomatic until well after he left active duty.  The NARSUM indicated he first sought treatment for this in January 2008.  He left active duty in February 2006.

	c.  The MEB's diagnoses of unstable urinary bladder with frequent urination and PTSD are not unfitting and not rated.  These conditions met medical retention standards and did not pose significant physical profile restrictions.

	d.  The PEB recommended a combined disability rating of 30% and that the applicant be permanently retired due to physical disability.  The disability did not result from a combat-related injury.

	e.  The applicant acknowledged he had been advised of the findings and recommendations of the PEB and had received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto.  He concurred with the findings and recommendation and waived a formal hearing of his case.

11.  On 27 January 2009, he was retired because of physical disability incurred as a result of injury while entitled to receive basic pay and placed on the Retired List.  His percentage of disability was 30%.  His disability did not result from a combat-related injury.

12.  A VA rating decision, dated 23 February 2011, continued his VA disability rating at 40% for right sided disc bulge at L5-S1 with chronic back pain.  This rating was based on a VA examination, dated 9 December 2010, nearly 2 years after he retired.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual's performance, and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments. 

14.  Title 38, Code of Federal Regulations, part 4, in effect at the time, stated the rating schedule was 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 4.14 (Avoidance of pyramiding) states the evaluation of the same disability under various diagnoses is to be avoided.

	b.  Section 4.20 (Analogous ratings) states when an unlisted condition was encountered it was permissible to rate under a closely-related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology were closely analogous.

	c.  Section 4.46 (Accurate measurement) states the use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within the VA.  Muscle atrophy must also be accurately measured and reported.

	d.  Section 4.71a (Schedule of ratings) states musculoskeletal system provided the following general rating formula for diseases and injuries of the spine.  For diagnostic codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  The General Rating Formula for Diseases and Injuries of the Spine states:

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.  (40%)

Forward flexion of the thoracolumbar 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 range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion 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.  (20%)

15.  For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 
80 degrees.  Normal forward flexion of the thoracolumbar spine is zero to 
90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes:

With incapacitating episodes having a total duration of at least
6 weeks during the past 12 months  (60%)
With incapacitating episodes having a total duration of at least
4 weeks but less than 6 weeks during the past 12 months  (40%)
With incapacitating episodes having a total duration of at least
2 weeks but less than 4 weeks during the past 12 months  (20%)
With incapacitating episodes having a total duration of at least
1 week but less than 2 weeks during the past 12 months  (10%)
	Note (1):  For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

	Note (2):  If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.

16.  Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

17.  Title 26, U.S. Code, section 104 states for purposes of this subsection, the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  In 2005, the VA awarded him a 40% disability rating for right-sided disc bulge at L5-S1.  The 40% rating was based on his forward flexion of the thoracolumbar spine of 30 degrees or less.  Although the VA used the VASRD code 5243, they rated him using the General Rating Formula for Diseases and Injuries of the Spine because it provided for a higher evaluation.  This rating was based on VA examinations dated 16 December 2006 and 27 February 2007.  It was noted in the decision that there was a likelihood of improvement of this condition.  He was denied service-connection for frequent urination (occasional bladder disturbance).

2.  According to the NARSUM for his MEB, his range of motion measurements of his thoracolumbar was conducted on 2 July 2008, 17 months after the examination used by the VA.  This examination is considered a more accurate assessment of his condition at the time of his PEB.  His forward flexion was measured at 43 degrees and was assessed with a standard goniometer.  Applying this to the VASARD under code 5242 shows this to warrant a 20% disability rating.  Therefore, the disability rating for this condition by the PEB is correct.

3.  The DA Form 2173 stated he had an exacerbation of lower back pain after coming down off a mountain wearing full gear in Iraq.  The incurrence of an injury in a combat zone does not in and of itself constitute a combat injury.  There is no 
evidence he incurred his back condition as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war.

4.  His urinary unstable bladder with frequent urination was determined by the NARSUM to meet retention standards.  The applicant himself stated IF he had remained on active duty he would have been able to document absence from duty due to his urinary frequency.  Disability ratings are awarded based upon the severity of the condition at the time of separation.  The VA is responsible for awarding and increasing VA disability ratings for conditions that worsen over time.  Therefore, this condition was properly not ratable by the PEB.

5.  A psychiatrist stated the applicant's PTSD was not of significant severity to warrant disposition through medical channels base on his ability to maintain a high level of social and occupational functioning both in his civilian employment and continued service in the National Guard.  There is no evidence to show he could not perform his duties due to PTSD.  The MEB determined his PTSD met retention standards and was therefore properly not ratable by the PEB. 

6.  On 26 November 2008, he concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

7.  The VA rating decision, dated 23 February 2011, continued his VA disability rating at 40% for right-sided disc bulge at L5-S1 with chronic back pain.  This rating was based on a VA examination dated 9 December 2010, nearly 2 years after he retired.  Therefore, this rating does not show any error in the Army disability rating assigned on 17 November 2008.

8.  The disability rating assigned by the Army was based on the level of disability at the time of his examination on 2 July 2008.  The VA evaluates veterans throughout their lifetime, adjusting the percentage of disability based upon that Agency's examinations and findings.  Any changes in the severity of a disability should be referred to that Agency.

9.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120002410



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ABCMR Record of Proceedings (cont)                                         AR20120002410



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