IN THE CASE OF:	  

		BOARD DATE:	 25 July 2013 

		DOCKET NUMBER:  AR20130000327 


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 his records as follows: 

* increase his disability rating from 20 percent (20%) to 40%
* adjust his separation with entitlement to severance pay to a medical retirement

2.  The applicant states, in effect, he was discharged for physical disability with a 20% rating, 10% of which is for degenerative arthritis, lumbar spine with diffuse disc bulge, and another 10% for left L5-S1 radiculopathy.  With regard to the rating assigned to the low back disability, the physical evaluation board (PEB) should have considered his painful motion and functional loss and concluded that this condition warranted a 20% rating.  As for the radiculopathy, the PEB should have considered that his radiculitis significantly affected both his sensory and motor functions and concluded that this condition warranted a 20% rating.  His overall rating should have been 40%. 

3.  The applicant provides:

* Memorandum in support of his application
* DD Form 214 (Certificate of release or Discharge from Active Duty)
* July 2008 medical evaluation board (MEB) report
* July 2008 Department of Veterans Affairs (VA) rating
* June 2008 range of motion (ROM) examination


COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to: 

* increase his disability rating from 20% to 40%
* adjust his separation with entitlement to severance pay to a medical retirement

2.  Counsel introduces the applicant's military service, combat deployment, awards and decorations, and highlights his disabilities which include an injury sustained to his lower back while instructing combative training in June 2004, a condition that still plagues him today.  He argues that:

	a.  The PEB did not accurately reflect the extent of the applicant's left lower extremity radiculitis.  An incomplete paralysis of the sciatic nerve (radiculitis) involving both sensory and motor deficits is considered at least a moderate disability under the VA Schedule for Rating Disabilities (VASRD).  Such a neurological condition would have warranted a 20% rating.  According to the VA examination conducted on 2 July 2008, the applicant suffered from certain sensory problems including decreased sensation to light touch on his left calf and foot.  He also suffered from motor problems including decreased strength of the left foot and diminished ability to heal and to walk with the left foot.  

	b.  The PEB also did not accurately reflect the extent of his thoracic spine condition.  When the forward flexion of the spine is greater than 30 degrees but less than 60 degrees, a rating of 20% is warranted.  But this is not the sole criterion for this rating.  An individual functional loss due to pain must also be considered when determining the appropriate disability rating.  The PEB failed to consider the functional pain that the applicant suffered due to his condition.  The applicant's 28 June 2008 ROM examination shows that, although the forward flexion range of his thoracolumbar spine was as great as 70 degrees, his motion was limited by pain much earlier in the flexion at 45 degrees.  

3.  Counsel did not provide additional evidence. 

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.  Having had prior service in the Army National Guard, the applicant enlisted in the Regular Army (RA) on 25 May 1995 and he held military occupational specialties (MOS) 15K (Aircraft Components Repair Supervisor) and 15B (Aircraft Powerplant Repairer).  

3.  He served through multiple extensions/ reenlistments in the RA, in a variety of stateside or overseas assignments - including multiple deployments to Afghanistan and Iraq - and he attained the rank/grade of sergeant first class (SFC)/E-7.  

4.  In June 2004, while at Fort Campbell, KY, he injured his lower back during combatives training.  He pulled something in his back with sudden onset of pain. Two weeks later, he felt something pop or pull in his lower back while ruck marching.  A subsequent MRI showed large left paracentral lateral recess disc herniation extrusion at the L4-S1 level affecting the left lateral recess and displacing and deforming the intrathecal portion of the S1 nerve root causing asymmetric spinal canal narrowing.  There was also mild left neural foraminal narrowing at L5-S1 and mild to moderate annular disc bulge at L4-L5 with concentric annual tear but no disk herniation at the L4-L5.  He was referred to Orthopedics and underwent left L5-S1 diskectomy in August 2004 for a large herniated disk.  

5.  He went through 4 months of therapy and he had a very good recovery while on temporary profile.  After completing therapy, he felt much better despite the pulling sensation in his back every other month and this was relieved with medications.  His back continued to be painful but became worse after he pulled something while running in September 2005.  He was again placed on muscle relaxants and anti-inflammatory medication but without relief.  He also pulled his back again in February 2006 and in April 2007 while deployed.  Finally, in March 2008, he was rucking through the woods at Fort Campbell when he reinjured his back again.  

6.  He was referred to Orthopedics and was evaluated on 9 May 2008 but he was told his condition was not surgical.  He was then referred to Physical Medicine and Rehabilitation Clinic for pain management and he was evaluated on 28 May 2008.  He continued to have an ache in his lower back radiating down to the left leg and tingling and numbness around the lateral left calf across the top of the foot.  

7.  In late June and early July 2008, he underwent a physician-directed MEB medical examination.  The exam resulted in a diagnosis of the medically unacceptable condition of chronic low back pain with chronic left L5-S1 radiculopathy and the medically acceptable conditions of plantar fasciitis, hyperlipidemia, intermittent right knee pain status post arthroscopy for medial meniscal tear, and onychomycosis.  He had been referred to the clinic for ROM measurements of the thoracolumbar spine as follows:  forward flexion, 45 degrees; extension, 8 degrees; left lateral flexion, 12 degrees; right lateral flexion, 12 degrees; left lateral rotation, 40 degrees; and right lateral rotation, 42 degrees.  

8.  The examining medical official opined his condition did not meet the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and recommended his referral to a PEB as his condition interfered with the performance of his duties.

9.  On 2 July 2008, an MEB found the applicant was diagnosed as having the medically unacceptable condition of chronic low back pain with chronic left L5-S1 radiculopathy and the medically acceptable conditions of plantar fasciitis, hyperlipidemia, intermittent right knee pain status post arthroscopy for medial meniscal tear, and onychomycosis.  The MEB recommended his referral to a PEB.  

10.  On 1 August 2008, an informal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to:

* degenerative arthritis, lumbar spine with diffuse disc bulge at L4-5, with annular tear without significant neural foraminal narrowing and L5-S1 has small focal protrusion; exam showed tenderness, spasm and guarding; forward flexion is 75 degrees and combined ROM is 189 degrees
* left L5-S1 radiculopathy (analogous to a sciatic nerve injury); exam showed decreased sensation and weakness of the left foot; electrodiagnostic study demonstrated chronic left L1-S1 radiculopathy, rated as mild, incomplete paralysis

11.  The PEB rated his conditions under VASRD Codes 5242 (degenerative arthritis) and Codes 8599/8520 (radiculopathy) and awarded a 10% disability rating for each condition.  The PEB recommended that the applicant be separated with entitlement to severance pay if otherwise qualified.  The PEB also considered his other medically acceptable conditions of plantar fasciitis, hyperlipidemia, intermittent right knee pain status post arthroscopy for medial meniscal tear, and onychomycosis, but found them not to be unfitting and therefore not rated.  These conditions met medical retention standards. 

12.  On 18 August 2008, the applicant was counseled by a PEB Liaison Officer regarding his medical condition, the findings of the MEB, the PEB process, and his rights under the law.  Subsequent to this counseling, he elected not to concur with the PEB finding and recommendation and demanded a formal hearing of his case with an appointed counsel.  A formal hearing was scheduled for 24 September 2008. 

13.  On 18 September 2008, he requested a cancellation of his formal hearing and indicated he agreed with the informal PEB findings and recommendations.  

14.  On 5 November 2008, Headquarters, 101st Airborne Division, Fort Campbell, KY, published Orders 310-0603 ordering his separation from active duty effective 21 January 2009 with a 20% disability rating.

15.  He was honorably discharged on 21 January 2009 by reason of disability with entitlement to severance pay under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The DD Form 214 he was issued shows he completed 13 years, 7 months, and 27 days of active service.  He was authorized $103,556.00 of severance pay.

16.  An advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) in the processing of this case.  A USAPDA official recommended the applicant's military records be changed to reflect a 20% rating for back pain, no change to the PEB's rating for radiculopathy, and a total rating of 30% with permanent disability retirement effective 21 January 2009.  The official stated: 

	a.  The applicant requests that this disability rating be increased to 40%, vice 20%, and his separation with disability severance pay be changed to permanent disability retirement.  The applicant's 2008 MEB listed chronic low back pain with chronic low back pain radiculopathy as the only condition that did not meet medical retention standards in accordance with chapter 3 of Army Regulation   40-501.  All other listed conditions were found to meet medical retention standards.  The applicant's flexion ROM was to 70 degrees, with pain beginning at 45 degrees.  The sensory exam show diminished sensation to light touch only on the lateral distal anterior calf and along the top of the left foot.  Motor exam showed mild, decreased strength in the left foot 4+5, but otherwise showed full strength in the remainder of the left lower extremity.  Coordination, balance, gait, and stance were all normal and reflexes were 2+ in the left except for slightly diminished reflex of the left ankle.  The applicant concurred with the MEB findings.

	b.  On 1 August 2008, an informal PEB found the applicant unfit for both his back pain and left radiculopathy: rating each at 10% for a total of 20% and separation with severance pay.  The applicant concurred with the PEB findings and waived his right to a formal hearing.

	c.  A review of the applicant's flexion ROM reveals that the pain began at 45 degrees.  In accordance with VASRD Code 5242, pain beginning between 30-60 degrees equals a 20% rating.  The PEB should have rated the back pain at 20%. 

	d.  The MEB's physical findings regarding the applicant's radiculopathy clearly showed that it was "mild" and the results of his nerve examination revealed that the reactions were only "slightly" diminished.  The VASRD rating for the sciatic nerve, VASRD Code 8520, ranges from 10% for mild to 80% for paralysis.  Based on a full consideration of the applicant's physical findings the PEB, in its discretion and after reviewing sections 4.123 and 4.124, decided that the rating which best represented the applicant's subjective medical findings in 2008 was “mild” at 10%.  The applicant has not provided sufficient evidence to prove that the PEB's decision of mild was incorrect or not supported by a preponderance of the evidence.  Recommend no change to the PEB's rating for radiculopathy. 

17.  On 2 April 2013, the applicant's counsel concurred with the advisory opinion and requested the Board adopt the recommendation in whole.  

18.  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 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.  

19.  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.
20.  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%.

21.  The VASRD is the law that lists detailed requirements for rating a disability condition.  Each rating tries to reflect how much the service member’s ability to work is affected by his condition.  The VASRD sorts conditions into numerous categories, including musculoskeletal (bone injuries, joint injuries, arthritis, etc.), muscle injuries directly related to and affecting the muscles of the body, sensory organs (eyes, ears, etc.), neurological (nerve pain, fibromyalgia, etc.), and more. Each condition is assigned a four-digit code (or an eight-digit hyphenated code for analogous ratings that is used for reference.  When assigning a rating, the PEB will try to choose the code that is the most appropriate for the condition and all its symptoms.

	a.  VASRD Code 5242, degenerative arthritis of the spine.  A rating of 20% is assigned when 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.  A rating of 10% is assigned when forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 	30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine 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.

	b.  VASRD Codes 8599/8520 (radiculopathy) (8520 is for peripheral nerves, sciatic nerve paralysis), ratings are assigned based on complete or incomplete paralysis.  In case of complete, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, a rating of 80% is assigned.  In case of incomplete paralysis, ratings are dictated by the degree of severity.  Severe, with marked muscular atrophy is assigned a 60% rating; moderately severe, 40%; moderate, 20% rating; and mild is assigned a 10% rating. 
DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained a back injury that warranted his entry into the PDES.  He underwent an MEB which recommended his referral to a PEB.  The PEB rated him for:

* degenerative arthritis, lumbar spine with diffuse disc bulge at L4-5, with annular tear without significant neural foraminal narrowing and L5-S1 has small focal protrusion; exam showed tenderness, spasm and guarding; forward flexion is 75 degrees and combined ROM is 189 degrees
* left L5-S1 radiculopathy (analogous to a sciatic nerve injury); exam showed decreased sensation and weakness of the left foot; electrodiagnostic study demonstrated chronic left L1-S1 radiculopathy, rated as mild, incomplete paralysis

2.  The PEB rated each condition at 10%, for a combined disability rating of 20% and recommended his separation with severance pay.  

3.  According to his MEB examination, the applicant's flexion ROM was to 75 degrees, with pain beginning at 45 degrees.  The sensory exam show diminished sensation to light to touch only on the lateral distal anterior calf and along the top of the left foot.  Motor exam showed mild, decreased strength in the left foot 4+5, but otherwise showed full strength in the remainder of the left lower extremity.  Coordination, balance, gait, and stance were all normal and reflexes were 2+ in the left except for slightly diminished reflex of the left ankle.  

4.  A review of the applicant's flexion ROM reveals that the pain began at 45 degrees.  In accordance with VASRD 5242, pain beginning between 30-60 degrees is assigned a 20% rating.  The PEB should have rated his back pain at 20%.  Instead, he was rated at 10%.

5.  The MEB's physical findings regarding his radiculopathy clearly showed that it was "mild" and the results of his nerve examination revealed that the reactions were only "slightly" diminished.  The VASRD rating for the sciatic nerve, Code 8520, ranges from 10% for mild to 80% for paralysis.  Since the applicant's subjective medical finding in 2008 was "mild," it was properly rated at 10%.  Neither he nor his counsel provided sufficient evidence to show that the PEB's decision of mild was incorrect or not supported by a preponderance of the evidence.  Therefore, there is insufficient evidence to support a change to this rating. 

6.  Based on the foregoing evidence, and with a recommended 20% rating for his degenerative arthritis plus a 10% rating for his radiculopathy, the applicant's combined disability rating should have equaled 30%.  As such, by law, he should have been medically retired instead of discharged with entitlement to severance pay.  His records should be corrected as indicated below. 

7.  A Survivor Benefit Plan election must be made prior to the effective date of retirement or the Survivor Benefit Plan will, by law, default to automatic Survivor Benefit Plan spouse coverage (if married).  This correction of records may have an effect on the applicant's status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer for information and assistance immediately.  A listing of Retirement Services Officers by country, state, and installation is available on the Internet at website:  http://www.armyg1.army.mil/rso/rso.asp.  The Retirement Services Officer can also assist with any SBP and/or TRICARE questions the applicant may have.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending the applicant's DA Form 199, dated 1 August 2008 to show:  

* he was assigned a 20% vice 10% disability rating for Code 5242, Degenerative Arthritis
* assigned a combined disability rating of 30% vice 20%
* his disposition was “permanent retirement” vice "separation with severance pay"

	b.  voiding Orders 310-0603, issued by Headquarters, 101st Airborne Division, Fort Campbell, KY, on 5 November 2008;

	c.  issuing him new orders retiring him effective 21 January 2009 and placing him on the Retired List in his retired rank/grade of SFC/E-7, effective 22 January 2009;

	d.  recouping any severance pay he received and establishing a disability retired account effective 22 January 2009 with entitlement to back retired pay; 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending the PEB to show he was assigned a 20% vice 10% rating for radiculopathy.  

3.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   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)                                         AR20130000327





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ABCMR Record of Proceedings (cont)                                         AR20130000327



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