IN THE CASE OF:	  

		BOARD DATE:	  6 August 2013

		DOCKET NUMBER:  AR20120021047 


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 reconsideration of his request for a service-connected disability separation.

2.  The applicant states:

I believe the narrative discharge of "disability existed prior to service," item 28 of his DD Form 214 (Certificate of Release from Active Duty)) is incorrect because of the lack of evidence and the presence of contradicting evidence at the time of the rating from the Physical Evaluation Board (PEB).

The PEB decided my disability was a developmental abnormality.  The Medical Evaluation Board (MEB) listed the disability as "incurred during service, did not exist prior to enlistment."  There is contradictory evidence in the medical record that confirms I entered the military with no back problems.  In fact the PEB quoted the Narrative Summary (NARSUM) and DX1 from the MEB improperly.  The actual disability was not documented by radiograph until 1994.  Included in the MEB diagnosis was that at the time of discharge I had a Grade I spondylolithesis which is a ratable disability according to standards at the time.  I believe the discharge was incorrectly applied because the adjudicating officials did not want to put me on the Temporary Disability Retired List (TDRL).  I have submitted medical records that 


prove I enlisted under normal conditions with no health problems and I have also submitted other medical documents that demonstrate a normal back during early enlistment.  Along with related medical documents are supporting documents from the Veterans Administration (VA) compensation and pension exam.  Thank you for your help and God bless.

3.  The applicant provides:

* VA Form 3288 (Request for and Consent to Release of Information from Individual's Records), dated 15 August 2012
* Standard Form (SF) 93 (Report of Medical History), dated 6 February 1990 (enlistment physical – no abnormalities noted)
* SF 88 (Report of Medical Examination), dated 6 February 1990 (enlistment physical – no abnormalities noted)
* SF 502 (NARSUM), dated 25 February 1991 (muscle and skeletal systems are normal)
* page 9 of a VA Rating and Pension document, printed on 8 September 2011 (evaluated on 2 August 2011)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120011255, on 15 January 2013.

2.  Because evaluation of this case is partially dependent upon an understanding of the natural history of a stress fracture of a vertebrae, known as spondylolysis, and the attendant forward slippage, known as spondylolisthesis, some background information is provided.

MedlinePlus, Medical Encyclopedia, a service of the U.S. National Library of Medicine, National Institutes of Health provides numerous on-line links about the subject.  One such, Know Your Back.org, is provided by the North American Spine Society (NAS) that describes itself as an organization dedicated to multidisciplinary spine care.  Their introduction to the topic reads:

The spine is made up of a series of connected bones called "vertebrae."  In about 5 percent of the adult population, there is a 


developmental crack in one of the vertebrae, usually at the point at which the lower (lumbar) part of the spine joins the tailbone (sacrum).  It may develop as a stress fracture.  Because of the constant forces the low back experiences, this fracture does not usually heal as normal bone.  This type of fracture (called a spondylolysis) is simply a crack in part of the vertebra and may cause no problem at all.  However, sometimes the cracked vertebra does slip forward over the vertebra below it.  This is known as adult isthmic spondylolisthesis.  (The root word here is isthmus, a narrow opening or passageway.)

What are the symptoms?  Isthmic spondylolisthesis may not cause any symptoms for years (if ever) after the slippage has occurred.  If you do have symptoms, they may include low back and buttocks pain; numbness, tingling, pain, muscle tightness or weakness in the leg (sciatica); increased sway back; or a limp.  These symptoms are usually aggravated by standing, walking and other activities, while rest will provide temporary relief.

Studies have shown that 5-10 percent of patients seeing a spine specialist for low back pain will have either a spondylolysis or isthmic spondylolisthesis.  However, because isthmic spondylolisthesis is not always painful, the presence of a crack (spondylolysis) and slip (spondylolisthesis) on the X-ray image does not mean that this is the source of your symptoms.

How is it diagnosed?  Your doctor will begin by taking a history and performing a physical examination, and may order X-ray studies of your back.  However, sometimes it is difficult to see a crack and/or slippage on an X-ray image, so additional tests may be needed.  A computed tomography (CT) scan can show a crack or defect in the bone more clearly.  A magnetic resonance imaging (MRI) scan may be ordered to clearly show the soft tissue structures of the spine (including the nerves and discs between the vertebrae) and their relationship to the cracked vertebra and any slippage.  It will also show whether any of the nearby discs have suffered any wear and tear because of the spondylolisthesis (slippage).

3.  In the original ABCMR case the applicant argued that because the VA found his condition to have been service-connected he should have been separated from the Army for service-connected disability.


4.  For that review, the applicant provided his VA rating decision, DA Form 3947 (MEB Proceedings), and DA Form 199 (PEB Proceedings).

5.  The applicant enlisted in the Regular Army on 20 March 1990 at the age of
20 years, 6 months, and 21 days.  He served in military occupational specialties 91B (Medical Specialist) and 91W (Nuclear Medicine Specialist).  He attained the rank/grade of sergeant (SGT)/E-5.

6.  He provided a copy of his 20 June 1996 MEB that referred his case to a PEB with a diagnosis of bilateral spondylolysis.  The 17 July 1996 PEB found the applicant had "Progressive low back pain, with onset early in his military career, attributed to bilateral defects of pars interarticularis.  Bone scan negative, indicating no acute activity.  Accepted medical principles indicate a high probability that spondylolysis is a developmental abnormality; therefore, considered to have existed prior to service (EPTS) in origin."

7.  The PEB further stated the applicant's functional limitations caused by associated low back pain made him unfit to perform the duties of a sergeant serving as a radiology specialist.  The impairment was determined to be EPTS and his disability had increased only to the extent of its accepted normal and natural progression; therefore, there was no permanent service aggravation.  The PEB did not assign a disability rating and recommended the applicant’s separation without disability benefits.

8.  He was honorably discharged on 20 August 1996 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4), by reason of "disability, EPTS, PEB."  He completed 6 years, 5 months, and 1 day of creditable active service.

9.  The Board noted that the VA operated under its own policies and procedures and that the difference between the PEB conclusion of EPTS and the VA rating did not demonstrate any error of injustice in the case.

10.  For this reconsideration, the applicant directly disputes the PEB's determination that his disabling condition was EPTS and he provided:

	a.  The 12 March 2012 VA rating decision that granted him a combined rating of 50 percent based on the following:

* 20 percent disability rating for his spondylolysis with spondylolisthesis of the lumbar region
* 10 percent disability rating for his radiculopathy of the left lower extremity associated with spondylolysis with spondylolisthesis of the lumbar region
* 20 percent disability rating for his radiculopathy of the right lower extremity associated with spondylolysis with spondylolisthesis of the lumbar region 

	b.  page 9 of the 2011 VA Rating and Pension document states, "OPINION:  The veteran's low back condition is most likely caused by or a result of different events…during active duty.  RATIONALE:  Based on a review of the medical records, medical literature and my clinical experience as a neurologist the veteran entered the service without any back problems.  These began after an injury which persisted during service and following separation.  He was found to have an abnormal lumbar spine in service which could have explained his back condition.  However he was denied service-connection because it was felt that his spine x-ray finding pre-existed service.  There is absolutely no evidence to substantiate a pre-existing condition here and it is quite likely that his condition of bilateral L5 spondylolysis with spondylolithesis developed over several years in the service and was finally diagnosed on 1 August 1994.  His present symptoms have been present for a long time and are well documented in the Compensation and Pension exam following separation by Dr. J--- D---- on 2 October 1996.  I Have no doubt that the findings of my present evaluation are caused by his military service and the diagnosis (spondylolysis, spondylolithesis with radiculopathy) are [sic] a result of the low back condition that he suffered on active duty."

11.  The PEB's description reads as follows:

Progressive low back pain, with onset early in military career [early 1991], attributed to bilateral defects of pars interarticularis.  Bone scan negative, indicating no acute activity.  Accepted medical principles indicate a high probability that spondylolysis is a developmental abnormality, therefore considered EPTS in origin.

Your functional limitations in maintaining the appropriate level of low back pain caused by the physical impairments recorded above make you unfit to perform the duties required of a sergeant in your MOS of radiological specialist.

Your unfitting conditions are found to be not service-connected or permanently aggravated.  Your impairment of EPTS and your disability has increased only to the extent of its accepted normal and natural progression.  Therefore, there is no service incurred or permanent service aggravation.  Because your condition is not service-connected you should contact the VA counselor to learn about available benefits such as loans, insurance programs, and medical care.  You must start the action as none of the benefits is automatic.

You are advised that a member of an armed force may not be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury that he/she has.

12.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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/her office, grade, rank, or rating.  At that time, paragraph 3-3 stated that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.

13  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service.  While the VA may consider PDES records in making a determination of service-connected disability, the VA's determination is independent of determinations made during PDES processing.

14.  The Veterans Affairs Schedule for Rating Disabilities (VASARD) currently requires that there be clear and convincing evidence of an EPTS condition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant entered active duty on 20 March 1990 at over 20 years of age.  His back problem first manifested in early 1991, when he noticed an onset of low back pain.

2.  There is no available report of any injury or significant back strain – simply an on-going low back pain that worsened over the years and kept him from the physical activities of Soldiering.  He went to the MEB in June 1996.

3.  The PEB determination of EPTS, not service aggravated was fair and reasonable.  It was based on the accepted medical principles applicable to the applicant's condition and fully explained as such.  Notwithstanding the 2011 remark by the VA neurologist that there was no evidence to substantiate a pre-existing condition, at that time there was no need to show "substantive evidence" because the required standard of proof was "accepted medical principles."

4.  The VA makes its own determinations based upon its own rules and regulations and the laws that govern them.  But their decisions are not relevant in this situation.

5.  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 to amend the decision of the ABCMR set forth in Docket Number AR20120011255, dated 15 January 2013.



      ___________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)                                         AR20120021047



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ABCMR Record of Proceedings (cont)                                         AR20120021047



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