IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140012522 


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 previous request for correction of his 1997 physical evaluation board (PEB) rating to show a higher rating and a subsequent medical retirement.

2.  The applicant states, in effect:

   a.  The Army Board for Correction of Military Records (ABCMR) recently denied his claim.  He provided the Board irrefutable evidence, which was documented by commissioned Army medical doctors admitting to a misdiagnosis of his fractured spine.  He is submitting evidence that the 10 percent (%) rating awarded at the time of his discharge was and is indeed an injustice based upon the admission of negligence on behalf of Army physicians and regulations governing rating compensation.

   b.  On 6 April 1996, he was involved in a motor vehicle accident (MVA), which fractured his lower spine, resulting in him being seen at the Brooke Army Medical Center Emergency Room (BAMCER).  The BAMCER failed to do a complete trauma examination as they documented zero signs of neurological or skeletal trauma, even though his chief complaints were back and shoulder pain.  The ABCMR previously noted that there was absolutely no mention of the fact that his chief complaints were not properly diagnosed from the date of the accident.  

   c.  The Board also failed to mention that he continued to be treated by various doctors at Fort Sam Houston, TX, for complaints of back pain as shown in medical reports from 12 April, 20 June, 2 and 19 August 1996 and 3 and 13 March 1997 (which ironically is the date the orthopedic consult was issued by Lieutenant Colonel Dxx W. Bxxxxx to affirm a definite diagnosis of L3 Pars Fracture Bilateral). 

   d.  His active duty service medical reports also prove that he suffered injuries beyond his lower back spinal fracture to include:  bilateral shoulder injuries/pain, bilateral Achilles injuries/pain, bilateral knee injuries/pain, and bilateral ankle injuries/pain.  None of these documented injuries were ever evaluated during his medical evaluation board (MEB) or PEB proceedings because according to the medical physician Major (MAJ) Wxxxxxx R. Sxxxxxx he was inappropriately [allowed to] permanently change stations after his medical board began.  This was a clear admission by a superior ranking medical officer that his medical treatment and handling of his board for discharge was not done properly.  He believes this falls under the fatally flawed definition of clear and unmistakable error.  

   e.  Additionally, the ABCMR previously stated the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Code 5285 states, "A rating of 10% is assigned to cases in accordance with definite limited motion or muscle spasm, for demonstrable deformity of the vertebral body.  The next level of rating is 60% for a vertebral fracture without cord involvement and abnormal mobility requiring a neck brace."  As discovered, his injury was a vertebral fracture which was misdiagnosed for 11 months as a "soft tissue injury."  The MEB was submitted as grade I spondylolisthesis, along with bilateral L3 spondylolysis, with no mention of final approval of his vertebral fracture.  The vertebral fracture to his spine was left out intentionally by Captain Oxxxxxx.  He believes that was due to the fact that he spoke directly to superiors about negligence.  Can the ABCMR explain why his rating was placed at 10% when VASRD Code 5285 states 60% ratings are issued for vertebral fractures?

   f.  According to Title 38, Code of Federal Regulations (CFR), section 3.105(a), a clear and unmistakable error (CUE) is an error that is un-debatable in that a reasonable mind can only conclude the original decision was fatally flawed at the time it was made.  He has proved his case based upon not his words, but the medical statements by the treating Army physicians and documentation from his military medical records, which he has supplied, showing he has been the victim of a fatally flawed decision.  His argument and supporting evidence are clear.  

   g.  He requests immediate action be taken via a Congressional inquiry, and that the ABCMR be held accountable and responsible for responding in a timely manner.  He waited 10 months to receive his first decision, which is unjust.  He feels since the response is fairly recent and his argument with supporting evidence is clear cut, the proper decision to overturn the previous denial [and grant him] a rating of at least 60% should be made within 30 days.  

3.  The applicant provides copies of the following:

* Standard Form (SF) 558 (Emergency Care and Treatment)
* six SF's 600 (Health Record – Chronological Records of Medical Care)
* SF 513 (Medical Record – Consultation Sheet)
* two DA Forms 3349 (Physical Profile)
* Optional Form (OF) 275 (MEB – Medical Record Report)
* MEB Proceedings
* Memorandum, subject:  Request for Line of Duty (LOD) Determination 
* Consultation Note
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Title 38, CFR, 3.105(a) (CUE)

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 ABCMR in Docket Number AR20130016870 on 4 June 2014.

2.  The applicant provides SF's 558, 513, 600, and a new argument.  These will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 22 January 1992.  He was awarded military occupational specialty (MOS) 91E (dental specialist).  He was reassigned to Fort Sam Houston, TX, on 8 February 1996 for training in MOS 91P (radiology specialist).

4.  He provided copies of the following:

   a.  An SF 558 which shows he was seen at the BAMCER on 6 April 1996, after being involved in an MVA, with chief complaints of back and shoulder pain.  He was given Motrin for pain and discharged to go home.  

   b.  Six SF’s 600 which show he sought and received treatment on/for:

* 12 April 1996 – mid-lower back pain of 6 days
* 20 June 1996 – right knee and left ankle pain he experienced while playing basketball; he noted that he had been taking Motrin and had stopped taking it, knee and Achilles pain was constant when walking and running and for the rest of the day post physical therapy (PT)
* 2 August 1996 – lower back pain of 3 months; an evaluation was needed for PT
* 19 August 1996 – lower back pain of 5 months; PT and Motrin was recommended
* 3 March 1997 – recurring lower back pain of 10 months
* 13 March 1997 – orthopedic consult was written to affirm definitive diagnosis of L3 pars bilateral fracture, L3 pars non-union, and L3 disc herniation

   c.  An SF 513, dated on 13 March 1997, shows he was seen at the Orthopedic Clinic-BAMC for lower back pain due to an MVA 10 months earlier. 
X-rays, bone scan, and magnetic resonance imaging (MRI) revealed probable L3 bilateral pars fracture, non-union.  An evaluation was requested with a confirmed diagnosis and determination, profile, and an MEB.

   d.  A DA Form 2346, dated 4 April 1997, assigning him a permanent profile of 1, 1, 3, 1, 1, 1 for bilateral pars interarticulars fracture L3 with restrictions for stretch exercise and walking at own pace only for unit physical training.  The form stated an MEB was needed.

   e.  An OF 275 which shows he was examined on 10 April 1997 for chronic low back pain.  The report noted he had no history of low back pain until he was involved in an MVA in April 1996.  The low back pain was diagnosed as purely soft tissue at the time and he was sent back to duty.  He was treated with PT, non-steroidal anti-inflammatory medication, and he was returned to duty a few months later.  His pain continued and physical training made the pain worse.  He was evaluated and diagnosed with bilateral L3-L4 grade I spondylolisthesis.  A PEB was recommended due to the fact that the applicant had failed conservative treatment and was unable to complete the rigorous requirement of an active duty Soldier.  It was noted, at present, surgery was not required and he did not desire such.  Prognosis was poor for ability to perform the stressful functions of a Soldier.

5.  On 22 April 1997, an MEB convened at BAMC, Fort Sam Houston, and after consideration of his clinical records and a physical examination, the applicant was diagnosed with L3 pars spondylolysis and L3-4 grade I spondylolysis, fracture of the body of L3, L3-L4 disc bulge with mild neuoforaminal stenosis and moderate canal stenosis.  He was referred to a PEB and he concurred.

6.  A PEB Liaison Officer Counseling Checklist/Statement, dated 22 April 1997, shows he acknowledged counseling on his disability evaluation.  


7.  He also provides copies of the following:

   a.  A memorandum, dated 4 June 1997, subject:  Request for LOD Determination, wherein the Chief, Patient Administration Division, William Beaumont Army Medical Center (WBMC), El Paso, TX, advised the U.S. Army Military Personnel Center, Alexandria, VA, that the applicant was currently undergoing MEB processing with a planned referral to the PEB and an LOD was required in order to process the PEB.

   b.  A Consultation Note, dated 26 June 1997, wherein MAJ Sxxxxx, WBMC, stated he would obtain new radiographs and make an addendum if it was appropriate based on the finding of the radiographs.  Based on the applicant's MEB he had grade I L3-L4 spondylosisthesis and bilateral L3 spondylolysis.  If the findings on the applicant's radiograph were consistent with that report, he would not dictate or write an addendum.  He would update the profile to include no bending and follow-up would be on an as needed basis with the Troop Medical Clinic.  That MEB was not started at WBMC and it appears the applicant was allowed to inappropriately permanently change stations after his MEB was started.

   c.  A DA Form 3349, dated 4 April 1997, assigning him a permanent profile of 1, 1, 3, 1, 1, 1 for chronic symptomatic grade I spondylolisthesis and L3 spondylolisthesis with restrictions for no load bearing equipment and no running, jogging, Army Physical Fitness Test (APFT), and bending.

8.  On 8 July 1997, an informal PEB convened at WBMC and considered and rated his medical condition of chronic low back pain following the MVA on 6 April 1996 with X-rays and MRI evidence of L3 pars spondylolysis; L3-L4 grade I spondylosis; fracture of the body of L3; L3-L4 disc bulge with mild neuroforaminal stenosis; and moderate canal stenosis under VASRD Codes 5285 and 5295.  The PEB found and recommended the following:

* An audit trail in health records clearly indicated no back complaints prior to April 1996 and then ever increasing back pain made worse with physical training resulting in a physical profile precluding APFT
* His functional limitations in maintaining the appropriate level of mobility and flexibility caused by the physical impairments recorded made him unfit to perform the duties required of his grade and MOS 91P
* A combined rating of 10% and separation with severance pay
* It was noted that his disability rating was less than 30%; for Soldiers with a disability rating of less than 30% with less than 20 years of service Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) required separation from the service with severance pay
* He concurred with the PEB and waived his right to a formal hearing

9.  On 9 October 1997, he was honorably discharged by reason of disability with entitlement to severance pay.  He was credited with completing 5 years, 8 months, and 18 days of total service for retired pay.

10.  He further provides the definition of CUE in accordance with Title 38, CFR, section 3.105(1).

11.  Army Regulation 40-501 governs medical fitness standards for separations. Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Paragraph 3-39 (Spine, scapulae, ribs, and sacroiliac joints) applies in this case.  Subparagraph 3-39(a)(3) applies to the following congenital anomalies that warrant referral to an MEB:  spondylolysis or spondylolisthesis with more than mild symptoms resulting in repeated outpatient visits, or repeated hospitalization, or significant assignment limitations.  

12.  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 diseased and injuries encountered as a result of or incident to military service.  The degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

13.  VASRD Code 5285 pertains to the spine.  A rating of 10% is assigned to causes in accordance with definite limited motion or muscle spasm, for demonstrated deformity of the vertebral body.  The next level of rating is 60% for vertebral fracture without code involvement and abnormal mobility requiring a neck brace.

14.  VASRD Code 5295 pertains to lumbosacral strain.  A rating of 10% is assigned for lumbosacral strain with characteristic pain on motion.  The next level of rating is 20% for muscle spasm on extreme toward bending and loss of lateral spine motion, unilateral, in standing position.  The next level is 40% when it is severe, with listing of the whole spine to the opposite side.

15.  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%. 

16.  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 of less than 30%.

17.  Information from the American Medical Association notes that spondylolysis is a stress fracture or defect of the pars interarticularis in a vertebra.  A stress fracture can occur at the pars interarticularis due to repetitive movements of extension and rotation which leads to an increase in shear forces in the lumbar spine.  As shear forces increase, pressures on the facet joints increase.  These forces are then transmitted to the pars interarticularis.  Since the pars interarticularis is small, it is unable to absorb repetitive shock which leads to the stress fracture.  Spondylolysis has various causes.  While a vertebra can be defective from birth (congenital), it can also be broken by trauma or a stress fracture, or broken down by infection or disease.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was involved in an MVA in 1996 and he sustained a back injury.  He sought and received treatment for this injury between April 1996 and March 1997.  In March 1997, an evaluation was requested with a confirmed diagnosis and a determination, profile, and an MEB.  He underwent a physical examination and subsequent MEB consideration.  The MEB referred him to a PEB.

2.  His profile was updated prior to his PEB to restrict load-bearing equipment and no running, jogging, APFT, and bending.  A PEB rated him for chronic low back pain and MRI evidence of L3 pars spondylolysis, L3-L4 grade I spondylosis; fracture of the body of L3; L3-L4 disc bulge with mild neuroforaminal stenosis; and moderate canal stenosis under VASRD Codes 5285 and 5295.  The PEB found his back pain was made worse with physical training resulting in a physical profile and precluding APFT.  He was also found unfit for further service.  The PEB recommended a combined rating of 10% and separation with severance pay.  He was separated accordingly on 9 October 1997.

3.  The contentions made in his original application to the Board and in his current correspondence are identical in that he essentially believes that had certain records been available and interpreted correctly and had all of the incidents contributing to his back injury been taken into consideration the results would have been retirement by reason of physical disability.  

4.  The evidence available to the Board during the initial deliberation and the evidence that is currently available clearly show that he participated in his disability processing for chronic back pain, concurred with the findings and recommendation of the MEB, and the informal PEB disability recommendation and rating regarding his back pain.  

5.  His contentions that his vertebra was broken and that as such he should have received different treatment or that it warranted disability retirement rather than separation are inconsistent with the evidence which was available during his disability processing and which was previously available to the Board.  That evidence clearly shows the consistent use of the diagnostic term of spondylolysis.

6.  The evidence shows he was rated utilizing VASRD Codes 5285 and 5295, which were the most appropriate codes considering his limitations.  There is no evidence of record and he did not provide sufficient evidence showing his disability should have been assigned a higher rating based on a vertebral fracture.  A disability rating assigned by the Army is based on the level of disability at the time of Soldier's discharge.  Based on his rating of less than 30% and his completion of less than 20 years of service he was discharged accordingly.  

7.  There is no evidence of record and he provided insufficient evidence showing his medical condition was unjustly or erroneously rated by the PEB.  There is also no evidence the conditions he now contends should have been considered were determined unfitting at the time.  The medical evidence shows his chief complaint was lower back pain, which was the only medical condition considered throughout his medical disability processing.

8.  Notwithstanding the MEB originating at Fort Sam Houston, once he was reassigned to his next duty station his disability processing was continued accordingly.  Again, geographical locales would not change his condition or affect the outcome of a PEB.

9.  In view of foregoing, he is not entitled to 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 to amend the decision of the ABCMR set forth in Docket Number AR20130016870, dated 4 June 2014.



      _______ _   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)                                         AR20140012522



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ABCMR Record of Proceedings (cont)                                         AR20140012522



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