IN THE CASE OF: BOARD DATE: 3 March 2016 DOCKET NUMBER: AR20150000338 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 her previous request for correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she retired on 12 May 2011 by reason of permanent disability with a disability rating of 30 percent (%) or higher instead of discharged with severance pay. 2. The applicant states: a. The documentation previously submitted to the Board ([Exhibit A] - which includes all her active duty medical records), includes references to both cervical and lumbar chronic pain and disc bulge, as well as a reference to disc herniation at L5-S1 and radicular symptoms in the "posterior left thigh," on an orthopedic consolation report, dated 29 December 2010 [Exhibit B]. b. Her medical evaluation board (MEB) narrative summary (NARSUM) [Exhibit C] summarized the results of the lumbar magnetic resonance image (MRI), dated 19 November 2010 as follows: "mild to moderate interfacetal joint degenerative changes from L3-4 through L5-S1. Mild diffuse bulging of the posterior disc annulus which, combined with the interfacetal joint degenerative changes and ligamentum flavum thickening, produces mild reduction in the cross sectional diameter of the spinal canal at the disc space level." As previously argued, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-19h.1.(a) provides that a service member will be awarded a "permanent" disability rating if the disability and compensable rating will remain unchanged during the following 5 year period. c. Army Board for Correction of Military Records (ABCMR) Docket Number AR20130004649, dated 19 December 2013, previously stated in Discussions and Conclusions, paragraph 2 concluded that, "The evidence of record confirms the applicant received a physical profile rating of P3 for the lower extremities on 1 December 2010 based on… chronic neck and back pain… the MEB NARSUM stated only that no improvement in [the applicant’s] condition could be expected under the present circumstances, not that there would never be improvement." As such, while the underlying MEB and NARSUM concluded there would be "no improvement" in her condition, the physical evaluation board (PEB) concluded her condition was "stable" at the time of discharge and could possibly improve if she was removed from the military training environment. However, this has not been the case. A degenerative condition, by definition, is one that is progressive and irreversible in nature, disallowing the expectation of improvement. d. The PEB failed her by not assigning a rating for the lumbar degenerative joint disease and failing to reach a combined permanent disability rating of 30% or higher for both the cervical and lumbar degenerative diseases. (Exhibits D-I) contain medical treatment records showing her condition worsened since her removal from the training environment and illustrate the rate of progression of the degeneration of both the cervical and lumbar spine. e. Her military service was short, but there was documentation in her medical records indicating the presence of degenerative joint disease in both the lumbar and cervical spine as well as symptoms of radiculopathy in the lumbar spine. Her condition has not improved since being released from the military environment; it has continued to steadily deteriorate. The deterioration has led to "incomplete paralysis" in both feet and in the left arm, chronic migraines, and continued chronic pain in both the lumbar and cervical spine, despite aggressive pain-management and medication therapies. f. Considering the nature of such degenerative diseases of the spine to include degenerative disc disease, degenerative joint disease, and intervertebral syndrome, she should have been granted a permanent combined rating of 30% or higher for the lumbar and cervical spine at the time of discharge. 3. The applicant provides the following previously considered evidence (Exhibits A-D): * memorandum of facts and law, dated 8 February 2013 * DD Form 214 * 24 pages of Standard Forms (SF)s 600 (Chronological Record of Medical Care), dated between 30 November 2009 and 11 January 2011 * SFs 527 (Group Muscle Strength, Joint Range of Motion (ROM) Girth and Length Measurements), dated 2 October and 29 November 2010 * two DA Forms 3349 (Physical Profile), dated 1 December 2010 and 11 January 2011 * two text notes, dated 10 December 2010 and 7 February 2011 * MEB NARSUM, dated 19 January 2011 * DA Form 3947 (MEB Proceedings), dated 20 January 2011 * DD Form 2807-1 (Report of Medical History), dated 1 December 2010 (page 3) and 26 January 2011 * consultation report, dated 28 February 2011 * DA Form 199 (PEB Proceedings), dated 25 March 2011 * physical disability information report, dated 8 April 2011 * medication profile, undated 4. The applicant provides the following new evidence (Exhibits E-I): * self-authored statement, dated 18 December 2014 * Exhibit E - medical record, Carolina Imaging, dated 29 July 2014 * Exhibit F- medical record, WG (Bill) Hefner Department of Veterans Affairs (VA) Medical Center, Electromyography Laboratory, dated 31 December 2012 * Exhibit F - consult requests, Salisbury VA Medical Center (VAMC), dated 19 February 2014 and 20 February 2014 * Exhibit G - 56 pages of medical notes, Fayetteville Pain Center, dated from 31 October 2012 to 11 June 2014 * Exhibit H – 29 pages of progress notes, Salisbury VAMC, dated from 13 January 2012 to 14 August 2014 * Exhibit I - VA decisional document and explanation of benefits, dated 21 November 2014 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 AR20130004649, on 19 December 2013. 2. The applicant provides new arguments and evidence that were not previously considered. The new evidence and arguments warrant consideration by the Board. 3. The applicant enlisted in the Regular Army on 17 November 2009 and was assigned to Fort Jackson, SC, for basic combat training (BCT). 4. She provided numerous SFs 600 showing she was seen at the 20th Medical Group Troop Medical Clinic (TMC), Shaw Air Force Base, SC, for a complaint of mid-femur tenderness; an evaluation was requested for a stress reaction. The examining physician stated: a. On 30 November 2009, views of the femur showed no evidence of inflammatory or neoplastic change, the femur appeared normal for its age, and there was minimal stress reaction mid-shaft posterior cortex of the left femur. She was issued a temporary profile for stress fractures of the femur which was to remain in effect until a bone scan could be conducted. b. On 2 December 2009, a bone scan showed she had a stress fracture of the shaft of the femur. She was prescribed medication, provided crutches, and released to duty with duty limitations in compliance with her temporary physical profile. This DA Form 3349 is not available for review with this case. 5. On 16 February 2010, she was seen for joint pain localized in the hip, the issuance of prescription medication, a complaint of thigh and groin pain for the past 4 weeks, and concern about fluid on the knees. The examining physician stated the applicant was in her last week of BCT, had no systemic symptoms, no cardiovascular symptoms, and no musculoskeletal symptoms. A motor examination demonstrated no dysfunction, her balance was normal, and she had a mild antalgic gait (limp). She stated she did not come in earlier because she did not want to miss training. She was released to duty with duty limitations. 6. On 22 February 2010, she was seen for a complaint of pain in the left groin. The examining physician stated her hips did not show a full range of motion, pain was elicited by hip motion, her left hip was tender on palpation, and limping was observed in her gait and stance. She was placed on 30 days of convalescent leave. 7. On 22 March 2010, she was seen at the 20th Medical Group TMC upon her return from convalescent leave. The examining physician found the views of the pelvis showed the bony structures about the pelvis to be normal with no evidence of arthritic, inflammatory, or neoplastic change. The sacroiliac and hip joints appeared normal as well. There was a question with the stress fracture and she was referred to the Physical Therapy Clinic. She was diagnosed with a pelvic stress fracture, released with work/duty limitations, and the examining physician noted she was cleared to go to officer candidate school (OCS) with follow-up treatment as needed. 8. She was treated at the Physical Therapy Clinic, Fort Jackson, SC, from 30 March 2010 through 18 May 2010. On 18 May 2010, the attending physical therapist noted the applicant walked into the clinic with a normal gait at a moderate pace; she had no palpable deformities; she was able to heel walk, toe walk, and deep squat without difficulty or increased pain. The impression was the left pelvic stress fracture was resolving and she was cleared to take the Army Physical Fitness Test (APFT) in 2 to 3 weeks. 9. The applicant subsequently completed BCT and she was assigned to the 3rd Battalion, 11th School Brigade, Fort Benning, GA, for OCS on 8 June 2010. 10. On 19 July 2010, she was seen at the Fort Benning TMC for a complaint of intermittent left lower back and side pain and a possible kidney stone. The applicant stated her pain started 4 days prior and began on the left side while breathing, coughing, and walking. The examining physician stated the applicant appeared uncomfortable, awake, and alert. There was tenderness of the left chest at the rib. Her lungs and cardiovascular system were found to be normal and there were no abnormalities of the abdomen on palpation. Her lower back exhibited tenderness on palpation of the left and right paraspinal region, there was muscle spasm of the lower back in the left paraspinal region, and the lower back did not exhibit any swelling. 11. On 29 July 2010, she was seen at the Fort Benning Physical Therapy Clinic for a complaint of left side hip/groin pain after gradual onset with running. She stated she had a left pelvic stress fracture during BCT and she had completed a walk-to-run progression prior to beginning OCS. Running significantly increased after beginning OCS and she had been recycled from week 5 and would restart in week 1. The examining physical therapist noted she appeared in no acute distress, her knee motion was normal, she completed a full squat with minimal increase in pain, and had increased pain with side lateral hops. Her hips had a full range of motion with increased pain at the end range flexion. The physical therapy goal was to resume work activities within 6 weeks with a low-impact home exercise program and pool exercise twice a week. She was diagnosed with joint pain localized at the hip and given a temporary physical profile for no running, marching, or jumping for 2 weeks. This DA Form 3349 is not available for review with this case. 12. On 15 September 2010, she was seen at the Fort Benning TMC for a profile follow-up visit. The examining physician stated: a. The applicant was in OCS in a holdover status and was previously diagnosed with a pelvic stress fracture. She now complained of neck pain for the past 7 days, a headache when her neck hurt, and a hamstring pain for the past 10 days. She stated she was awaiting reassignment to advanced individual training (AIT) and she wanted to be placed on convalescent leave prior to AIT. b. He found there were no systemic symptoms, she was not fatigued, she had no cardiovascular symptoms and no chest pains, no back pain, no radiating low back pain and it did not worsen at night, no localized joint swelling, no limb pain, and no limb swelling. There were no neurological symptoms and no numbness of the legs or buttocks. Palpation of the neck revealed abnormalities with pain at C4 and C5. Her cervical spine showed tenderness on palpation and motion was abnormal with loss of rotation to the right compared to the left. Her cervical spine flexion was abnormal; her cervical spine extension was normal, and the cervical spine showed no laxity or weakness. c. Her left buttocks showed tenderness on palpitation just inferior to the posterior iliac spine. d. The motion of her left hip was abnormal and she had pain with internal rotation (4/10 on the pain scale). Her pain was elicited by motion. However, there was no erythema, no misalignment, and her hip was not tender on palpitation. Additionally, there was no instability noted and there was no tenderness observed with ambulation. e. He found she had cervicalgia and joint pain localized in the hip. She stated she was in a motor vehicle accident 5 years prior and this may have been the possible source of the pain. She was placed on quarters for 72 hours. He requested her evaluation for possible osteoarthritis/malalignment and ordered an x-ray to rule out osteoarthritis. 13. She was subsequently released from OCS and she was assigned to the Unmanned Aerial Vehicle (UAV) Student Detachment, Fort Huachuca, AZ, for AIT on 12 October 2010. 14. A report of medical examination was completed on 29 October 2010. The examining physician noted she had abnormalities of the "lower extremities" due to chronic pain with some arthritis of the cervical and lumbar vertebra and "spine, other musculoskeletal" areas due to stress fractures in the left femur and left inferior pubic ramus - she had stress reactions in both tibias. 15. She provided a SF 527 listing her problems as hip and lower back pain and noted she had anterior hip pain with the Patrick's test, she had a positive piriformis test, diffuse lower back pain with some radiation up the spine, iliotibial band pain, and a bulging disk at L4/L5. Additionally, this form shows the following tests were performed on 2 October 2010 and 29 December 2010 (measurements are in degrees): Date 2 October 2010 29 November 2010 Tested side Right Left Right Left Trunk Extension 45º 40º Flexion 122º 150º Lateral Flexion 50º 44º 47º 35º Rotation 62º 56º 57º 35º Hip Extension 0-15 34º 38º 30º 30º Flexion: Knee Flexed 0-120 130º 136º 130º 135º Flexion: Knee Extended 110º 105º 97º 105º Abduction 0-30 36º 36º 35º 40º Abduction 0-45 52º 42º 57º 35º Internal Rotation 0-45 50º 60º 47º 39º External Rotation 0-45 80º 90º 60º 44º Knee Extension 0 0º 0º 0º 0º Flexion 0-135 130º 136º 130º 135º 16. She provided the text notes from an MRI of her lumbar spine, showing she received an MRI on 19 November 2010, due to her chronic lower back pain. The MRI revealed she had mild to moderate interfacetal joint degeneration changes present from L3-L4 through L5-S1. a. The lumbar disc levels show L1-L2, L2-L3, and L3-L4 were normal for her age of 33 years. L4-L5 showed there was mild diffuse bulging of the posterior disc annulus which, combined with the interfacetal joint degenerative changes and ligamentum flavum thickening produces a mild reduction in the cross-sectional diameter of the spinal canal at the disc space level. The L5-S1 disc levels were also normal for her age or 33 years. b. The physician concluded she had "mild reduction in the cross-sectional diameter of the spinal canal at L4-L5 due to a bulging annulus, interfacetal joint changes, and ligamentum flavum thickening. 17. On 1 December 2010 she was issued a permanent, level 3 (P3) physical profile rating for her lower extremities for multiple stress fractures and chronic neck and back pain. The profile stated she could not complete the APFT or an alternate APFT and needed an MEB. 18. She provided page 3 of a DD Form 2807-1, dated 1 December 2010 containing the following statements in the comment section: "multiple stress fractures/stress reactions"; and "chronic lumbar, pelvic and cervical pains." 19. She provided the text notes from an MRI of her cervical spine she received on 5 January 2011, due to her chronic neck pain. The MRI revealed she had moderate diffuse bulging of the posterior disc annulus at C5-C6, without compression of neural structures - otherwise normal. The lumbar disc levels show C2-C3, C3-C4, and C4-C5 were normal for her age of 33 years. C5-C6 showed there was moderate diffuse bulging of the posterior disc annulus but not causing compression or compromise of the spinal cord or existing nerve roots. The C6-C7 and the C7-T1 disc levels were also normal for her age or 33 years. 20. On 11 January 2011, she was issued a temporary level 4 (T4) physical profile rating for the lower extremities and a T2 profile rating for her upper extremities for lower back pain and cervicalgia. The profile stated she could not complete the APFT or an alternate APFT and that her temporary profile would expire on 25 February 2011. 21. Her MEB NARSUM was dated 19 January 2011, and stated in part, that the applicant's range of motion of the cervical vertebrae was normal but extreme flexion did cause some discomfort down the spine between the spine and the scapula. She was in continuous pain from documented stress fractures/bony stress reactions and from chronic cervical and lumbar vertebral pain. Her condition appeared to be stable and no improvement in her condition could be expected under the present conditions. a. An x-ray dated 30 November 2009 reported a minimal stress reaction mid-shaft left femur. b. An x-ray of the pelvis on 16 February 2010 reported a minimal stress reaction compression on the side neck of the right and left hip. c. A bone scan performed on 17 February 2010 showed mild focal uptake at the left inferior pubic ramus consistent with minor stress fracture. Also reported was mild linear uptake at both mid tibias consistent with shin splints. d. She reported to OCS in June 2010, but during week 6 she developed new lower back pain and reoccurrence of the same anterior pelvic pain. After her treatment she developed pain in the left buttock area referred down the lateral side of the leg to the knee. The pain persists and was worse when she was laying on her right side with the knees pulled up or rotated inwards. e. She experienced neck pain since OCS and when she flexed her neck she felt discomfort in her back between the shoulder blades. X-rays of the cervical vertebrae on 2 November 2010 showed slight anterior positioning of C4 on C5. f. On 19 November 2010, she had an MRI of the lumbar vertebrae showing, "mild diffuse bulging of the posterior disc annulus which, combined with the interfacetal joint degenerative changes and ligamentum flavum thickening, produces mild reduction in the cross-sectional diameter of the spinal canal at the disc space level." g. An MRI of the cervical vertebrae on 13 January 2011 showed moderate disc bulge at C5-C6, not causing compression or compromise of the spinal cord. h. She was diagnosed with chronic cervical spine pain, chronic low back pain due to some mild disc budges, and snapping hip syndrome on the left side. The NARSUM indicated that her conditions of "stress fractures/stress reaction at multiple sites…and chronic pain in lumbar and cervical vertebrae, with disc bulging at both levels…failed to meet retention standards." 22. On 24 January 2011, an MEB convened at Fort Bliss, TX, and diagnosed her with the unfitting conditions of stress fractures/stress reactions at multiple sites and chronic pain in lumbar and cervical vertebrae with disc bulging at both levels. The MEB recommended her referral to a PEB. After being counseled as to the findings and recommendations of the MEB and her rights and options, the applicant agreed with the MEB findings and recommendations and electronically signed her name to the MEB form. 23. On 25 March 2011, an informal PEB convened at Fort Lewis, WA. The PEB proceedings confirmed her unfitting disability of degenerative arthritis of the cervical spine and stated her neck pain developed at BCT. Imaging showed minimal spondylosis at C5, no acute findings, with disc bulge at that level. Lumbar strain was found not to be independently unfitting. Her examination was notable for tenderness over the cervical vertebrae. The condition was unfitting as she could not take the APFT, move with a combat load, or perform functional activities. The PEB found the applicant's condition caused her to be physically unfit for further service and that her condition was stable. She was rated under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5242 and assigned a 10% disability rating for satisfactory evidence of painful motion that included considerations of functional loss. The PEB recommended her separation with severance pay, and after being counseled as to the findings and recommendations of the PEB and her rights and options, the applicant concurred with the PEB findings and waived her right to a formal hearing of her case. 24. She was honorably discharged from active duty by reason of disability with severance pay in the amount of $11,496.60 on 12 May 2011. She completed 1 year, 5 months, and 26 days of creditable active service. 25. She provided post-service medical progress notes, issued by the Salisbury VAMC, on 3 February 2012, showing she was seen at the Fayetteville VAMC emergency room on 30 January 2013 for an evaluation of chronic neck problems. She stated she had numbness and tingling in her left arm and hand. She was given a Toradol injection and discharged. On 3 February 2012, she stated her symptoms had improved mildly since the emergency room treatment. She also indicated a concern about the increasing frequency of her disabling symptoms. 26. She provided a progress note, issued by the Salisbury VAMC, on 24 February 2012, which stated the Army diagnosed her with degenerative disc disease in the cervical spine, which had improved, but she continued to have flare-ups. During her flare-ups the pain escalates to such a point that she had sharp, shooting pain down to the left side of her left shoulder. She also reported having paresthesias down the left arm. During these attacks, she needed to go to the emergency room several times for pain relief. She indicated her neck pain was sharp and stabbing and the low back pain was aching and throbbing. She also reported mild weakness in her left hand. No latent or active trigger points were found during the examination, she had a full range of movement in the flexion and extension in the lumbar spine, and she tested positive for very mild left shoulder impingement. Her diagnosis consisted of cervical radiculopathy and resolving lumbar radiculopathy. These notes also indicated: (1) She had a lumbosacral spine x-ray on 2 September 2011, showing minimal scoliosis that may be positional; otherwise her lumbar spine was normal. (2) She had a cervical spine x-ray on 3 January 2012, showing her cervical vertebrae were of normal height and configuration except for narrowing of the C5-C6 interspace. There was no impingement on the neural foramina and the retropharyngeal soft tissue space had not increased. 27. She provided a progress note, issued by the Salisbury VAMC, on 28 September 2012 showing she reported a flare-up of severe lower back pain radiating up and down her spine and both legs. She rated the pain at 10/10 on the pain scale and stated it was a sharp, pinching, shooting, sciatic type of pain. The pain began two months prior and had been progressively worsening. Her pain medication was not providing relief. 28. She provided clinical exam notes showing she had an MRI of her cervical spine on 28 September 2012. The MRI indicated mild degenerative changes of the cervical spine with no significant neural foraminal narrowing or central canal stenosis noted. The findings revealed the marrow signal was homogeneous, the cervical cord was normal in signal, there was a reversal of the normal cervical lordosis with mild grade 1 anterolisthesis of the C4 on C5 and C5 on C6. At C6-C7, a mild disc bulge and left uncinated spurring was seen, and at C7-T1 bilateral facet arthropathy was seen. 29. She provided a progress note, issued by the Salisbury VAMC, on 1 October 2012 showing she had neck as well as low back pain. The assessment/diagnosis was listed as chronic pain. The physician states he suspected facet joint pain was the origin of her discomfort rather than disc disease. 30. She provided a medical report from the Salisbury VAMC, dated 24 October 2012 showing she had an MRI of the lumbar spine. The findings indicated: * mild scoliosis and no subluxation or osseous destruction * L6-S1 - disc space preserved, mild facet arthrosis * L5-L6 - mild degenerative disc disease with central posterior annular tear and facet arthrosis produced moderate central spinal stenosis * L4-L5 - mild degenerative disc disease with annular bulge, central posterior annular tear, and facet arthrosis * L3-L4 - mild degenerative disc disease 31. She provided a series of medical notes, from the Fayetteville Pain Center, dated from 31 October 2012 to 28 December 2012. These records show she had chronic pain affecting her neck and lower back. a. Laboratory tests/MRI of the lumbar spine show: (1) L5-S1 – disc space preserved mild facet (2) L5-L6 – mild degenerative disc joint disease with central posterior annular tear and facet arthrosis produced moderate central spinal stenosis (3) L4-L5 – mild degenerative joint disease with annular bulge central posterior annular tear and facet arthrosis (4) L3-L4 – mild degenerative disc disease b. The assessment/diagnosis were listed as: (1) low back pain (VASRD 724.4) (2) radicular syndrome of lower limbs (VASRD 724.4) (3) displacement of lumbar intervertebral disc (VASRD 722.10) (4) facet syndrome (VASRD 724.8) (5) sacroccygeal arthritis (VASRD 721.3) c. These notes indicate she had radicular symptoms of pain in both lower extremities with lumbar vertebral disease and continued to suffer from severe pain, chronic back pain, bilateral leg pain, bilateral paresthesia (feet), and radicular pain bilateral L5 and S2 without relief from pain medication. Her back had limited active range of motion with extension, flexion, left lateral bending, and right lateral bending. She had back pain with extension and lumbar bilateral paraspinous muscle tenderness. She had pain with palpitation over the 3rd, 4th, and 5th lumbar spinous process, left and right lumbar paraspinal muscles, bilateral L3-L4, bilateral L4-L5, and bilateral L5-S1 facet joint. She also had spasm and trigger point of the left and right lumbar paraspinal muscles. 32. She provided medical record issued by the WG (Bill) Hefner VAMC, Electromyography Laboratory, on 31 December 2012 showing she had a nerve conduction study of the numerous muscle groups from the waist down including but not limited to her gluts, thighs, calves, ankles, and feet. The evaluation of her left and right sural sensory nerves (calf) showed no response. All the remaining nerves were within normal limits. 33. She provided a medical note, from the Fayetteville Pain Center, dated 11 January 2013 which shows she received a diagnostic bilateral lumbar facet nerve block at levels L3-S1 for pain management. 34. She provided a medical record from the Fayetteville Pain Center, dated 30 January 2013 showing she was seen for a follow up on a diagnostic bilateral lumbar facet nerve block which was completed on 11 January 2013. This procedure provided her with less than 8 hours of pain relief. She was also being seen for pain management. During this visit she complained of pain in the lumbar spine. She rated her pain as 6/10 on the pain scale and with pain medication she rated her pain as 3/10 on the pain scale. The pain radiated to the right buttock and right posterior thigh. She characterized it as intermittent, moderate in intensity, throbbing, and aching. She indicated this was a chronic problem, with essentially constant back pain. Associated symptoms included stiffness that was persistent and occurred after prolonged sitting and standing, paravertebral muscle spasm, radicular right leg pain, and numbness in the right foot. She denied weakness of the legs, incontinence, constipation or sleep disturbance. She noted some pain relief with ice and narcotic pain medication and indicated the pain worsened with walking, back flexion, back extension, twisting movements, and cold and rainy weather. Additionally, her medical history was significant for osteoarthritis. 35. She provided medical notes from the Fayetteville Pain Center, dated 18 February 2013 and 4 March 2013 showing she underwent a right lumbar nerve radiofrequency ablation of facet nerves L3-L5 and L5-S1 on 18 February 2013 and a left lumbar nerve radiofrequency ablation of facet nerves L3-L5 and L5-S1 on 4 March 2013. 36. She provided a medical note from the Fayetteville Pain Center, dated 1 April 2013, showing she was seen for a follow up appointment for her right and left lumbar nerve radiofrequency ablation of facet nerves L3-L5 and L5-S1 and medication management. She reported she was still experiencing pain but that the lumbar nerve radiofrequency ablation procedures had resulted in a 70% reduction of her pain. During this visit she complained of pain in the lumbar spine. She rated her pain as 4/10 on the pain scale and with pain medication she rated her pain as 2/10 on the pain scale. The pain radiated to the right buttock and right posterior thigh. She characterized it as intermittent, moderate in intensity, throbbing, and aching. She indicated this was a chronic problem, with essentially constant back pain. Her associated symptoms and medical history were consistent with that reported on 30 January 2013. 37. She provided a medical note from the Fayetteville Pain Center, dated 31 May 2013, showing she was seen for a 2-month follow up appointment for her right and left lumbar nerve radiofrequency ablation of facet nerves L3-L5 and L5-S1 and medication management. She reported her pain level were beginning to increase in her lower back and she felt radiating pain in her neck and skull. a. She complained of pain in the lumbar spine. She rated her pain as 5/10 on the pain scale. The pain radiated to the right buttock and right posterior thigh. She characterized it as intermittent, moderate in intensity, throbbing, and aching. She indicated this was a chronic problem, with essentially constant back pain. Her associated symptoms and medical history were consistent with that reported on 30 January 2013. b. She complained of pain in the cervical spine. She rated the pain as 8/10 on the pain scale with activities and as 6/10 on the pain scale with pain medication. The pain radiated to the posterior skull and neck. She characterized it as constant, severe, throbbing, and aching. She indicated she had constant, chronic neck pain. Associated symptoms included paravertebral muscle spasm, weakness in the left upper arm, left forearm, and left hand, sleep disturbance and neck stiffness. She denied radicular arm pain, numbness in the arms, incontinence or constipation. She noted some pain relief with rest, ice, heat, and narcotic pain medication and stated the pain worsened with morning stiffness, cold and rainy weather, neck extension, and neck rotation. Additionally, her medical history is significant for osteoarthritis. 38. She provided a medical note from the Fayetteville Pain Center, dated 2 July 2012, showing she underwent a diagnostic bilateral cervical facet nerve block at levels C4-C7. 39. She provided a medical record from the Fayetteville Pain Center, dated 17 July 2013, showing she was seen for a follow up on a first left and right diagnostic cervical facet nerve block injection which was completed on 2 July 2013. This procedure provided her with less than 8 hours of pain relief. She was also being seen for pain management. a. She complained of pain in the lumbar spine. She rated her pain as 4/10 on the pain scale and with pain medication she rated her pain as 2/10 on the pain scale. Her remaining symptoms and complaints were consistent with those she made on 30 January 2013. b. She complained of pain in the cervical spine. She rated the pain as 5/10 on the pain scale with activities and as 4/10 on the pain scale with pain medication. Her remaining symptoms, and complaints were consistent with those she made on 31 May 2013. 40. She provided a medical record from the Fayetteville Pain Center, dated 31 July 2013, showing she was seen for a diagnostic bilateral cervical facet nerve block. 41. She provided a medical record from the Fayetteville Pain Center, dated 14 August 2013, showing she was seen for follow-up appointment for the diagnostic bilateral cervical facet nerve block. She was also being seen for pain management. a. She complained of pain in the lumbar spine. She rated her pain as 4/10 on the pain scale and with pain medication she rated her pain as 2/10 on the pain scale. Her remaining symptoms, and complaints were consistent with those she made on 30 January 2013. b. She complained of pain in the cervical spine. She rated the pain as 5/10 on the pain scale with activities and as 4/10 on the pain scale with pain medication. Her remaining symptoms, and complaints were consistent with those she made on 31 May 2013. 42. She provided a medical record from the Fayetteville Pain Center, dated 29 August 2013, showing she was seen for a left cervical facet C3-C6 radio frequency procedure. 43. She provided a medical record from the Fayetteville Pain Center, dated 12 September 2013, showing she was seen for a right cervical facet C3-C6 radio frequency procedure. 44. She provided a consult request from the Salisbury VAMC, dated 19 February 2014 and a progress note, dated 20 February 2014, showing she was seen for an evaluation of her cervical spine and radiating pain. She complained of pain and had radiating pain to her left shoulder and pain, numbness, and weakness in her left arm because of cervical spinal spondylosis. The treating physician wanted to conduct an electromyography (EMG) test to rule out radiculopathy. Her diagnosis was listed as cervical spine spondylosis and degenerative disc disease of the cervical spine. A nerve conduction velocity (NCV) test and the EMG revealed a mild nerve irritation of the left C5-C6 level which was consistent to her MRI results showing degenerative disc disease in that area. 45. She provided a medical record from the Fayetteville Pain Center, dated 9 May 2014, showing she was seen for follow-up appointment for the diagnostic bilateral lumbar facet nerve block conducted on 11 April 2014 which provided her with less than 8 hours of pain relief. She was also being seen for pain management. a. She complained of pain in the lumbar spine. She rated her pain as 4/10 on the pain scale. Her remaining symptoms and complaints were consistent with those she made on 30 January 2013. b. She complained of pain in the cervical spine. She rated the pain as 5/10 on the pain scale with activities. Her remaining symptoms and complaints were consistent with those she made on 31 May 2013. 46. She provided a medical record from the Fayetteville Pain Center, dated 11 June 2014, showing she was seen for a follow-up appointment for the diagnostic bilateral lumbar facet nerve block conducted on 30 May 2014 which provided her with less than 8 hours of pain relief. She was also seen for pain management. a. She complained of pain in the lumbar spine. She rated her pain as 8/10 on the pain scale and 6/10 on the pain scale with pain medication. Her remaining symptoms and complaints were consistent with those she made on 30 January 2013. b. She complained of pain in the cervical spine. She rated the pain as 8/10 on the pain scale with activities and 7/10 on the pain scale with pain medication. Her remaining symptoms and complaints were consistent with those she made on 31 May 2013. 47. She provided a medical record from Carolina Imaging, dated 7 July 2014 showing she had an MRI of the cervical spine. The MRI indicated: * mild multifactorial degenerative changes at C5-C6 resulting in minimal central and bilateral neural foraminal compromise without cord effacement or cord signal abnormality * less marked degenerative disc disease and uncovertebral joint degenerative changes at C6-C7 resulting in a mild left neural foraminal canal stenosis * no cord signal abnormality or enhancement was observed at the time 48. She provided a medical record from Carolina Imaging, dated 29 July 2014 showing she had an MRI of the lumbar spine. The MRI indicated: * mild multifactorial degenerative changes at L2-L3 without central or neural foraminal compromise * central annular tear and disc protrusion at L3-L4 resulting in minimal central and bilateral neural foraminal compromise without mass effect on the visualized neural elements * mild multifactorial degenerative change at L4-L5 resulting in mild central and bilateral neural foraminal compromise without mass effect on the visualized neural elements * the exam was otherwise unremarkable; no acute osseous abnormality or other focal disc pathology demonstrated 49. She provided a VA decisional document and explanation of benefits, dated 21 November 2014 showing: * on 9 April 2014, the VA awarded her a 10% disability rating for lumbar spine degenerative disc disease * on 9 April 2014, the VA awarded her a 10% disability rating for radiculopathy, lower left extremity * on 9 April 2014, the VA awarder her a 10% disability rating for radiculopathy, lower right extremity * on 9 April 2014, the VA awarded her a 50% disability rating for major depressive disorder * on 9 April 2014, the VA awarded her a 20% disability rating for radiculopathy, left upper extremity * on 13 May 2011, the VA awarded her a 10% disability rating for degenerative disc disease cervical spine; then on 9 April 2014, the VA increased this rating form 10% to 20% 50. Title 38, Code of Federal Regulation (CFR), Chapter I, Part 4, Subpart B, Section 4.71a (Schedule of ratings—musculoskeletal system) states, 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. a. The General Rating Formula for Diseases and Injuries of the Spine (For diagnostic codes 5235 to 5243, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease is shown in the below table: Rating Cervical Spine Thoracolumbar Spine 100% Unfavorable ankylosis [immobility and consolidation of a joint due to disease, injury, or surgical procedure] of the entire spine. 50% Unfavorable ankylosis of the entire thoracolumbar spine. 40% Unfavorable ankylosis of the entire cervical spine forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 30% Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 20% forward flexion of the cervical spine greater than 15 degrees but not greater than 30 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 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degree or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees 10% forward flexion of the cervical spine greater than 30 degrees but not greater than 40 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 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. 0% Flexion measure 45 degrees or more; or the combined range of motion measures 340 degrees or more. Flexion measures 90 degrees or more; or the combined range of motion measures 240 degrees or more. b. VASRD code 5003 - Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10% is for application for each such major joint or group or minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. c. VASRD code 5242 - Degenerative arthritis of the spine (see also diagnostic code 5003). [Note: Title 38, Part 4, Schedule for Rating Disabilities, Veterans Benefits Administration, Supplement Number 33 indicates that this code is used when the limitation of motion is not severe enough to warrant a rating under the general rating formula. A joint condition can only be rated as degenerative arthritis if it does not have a limited enough range of motion to rate under those codes. Conditions cannot be rated under both limitation of motion and degenerative arthritis. Limited motion first, and if not, then only arthritis. If pain is present with motion, then the minimum rating must be given.] 51. Title 38, Part 4 (Schedule for Rating Disabilities), Veterans Benefits Administration, Supplement Number 37, subsection 4.45f (The joints) states, 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 the consideration of joint pain on movement, swelling, deformity or atrophy of disuse, and that instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing are also related considerations. For the purpose of rating disability from arthritis, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. 52. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, USC, Chapter 61 and DODD 1332.18. It 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. 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. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. a. Paragraph 3–1 (Standards of unfitness because of physical disability) states the mere presences of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. b. Paragraph 4-19h. (Deciding permanency of disability) states, based on accepted medical principles, a disability is "permanent", and a Soldier who is otherwise qualified will be permanently retired, if: the defect has become stable so that, with reasonable expectation, the compensable percentage rating will remain unchanged during the following 5-year period; and the compensable percentage rating is 80 percent or more and the disability will probably not improve so as to be ratable at less than 80 percent during the following 5 years. A Soldier is placed on the Temporary Disability Retired List (TDRL) if fully qualified for permanent retirement except that the disability "may be permanent." The Soldier may not be placed on the TDRL for any other reason. Based on accepted medical principles, a disability will be considered as "may be permanent" if it has not stabilized, and one of the following occurs: the Soldier may recover so as to be fit for duty; and/or the defect is expected to change in severity within the next 5 years so as to change the compensable percentage rating. 53. 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. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) does not list stress fractures/reactions as a medical condition that renders a Soldier unfit for further military service. 54. 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 percent. 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 percent. 55. Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation) E2.1.25 defines physical disability as any impairment due to disease or injury, regardless of degree, that reduces or prevents an individual's actual or presumed ability to engage in gainful employment or normal activity. A medical impairment or physical defect standing alone does not constitute a physical disability. To constitute a physical disability, the medical impairment or physical defect must be of such a nature and degree of severity as to interfere with the member's ability to perform his or her duties. 56. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION AND CONCLUSIONS: 1. The applicant contends she should have been retired by reason of permanent disability on 12 May 2011 with a disability rating of 30% or higher instead of discharged with severance pay as her conditions of cervical and lumbar degenerative diseases should have been found unfitting. She further states the PEB failed her by not assigning a rating for the lumbar degenerative joint disease and failing to reach a combined permanent disability rating of 30% or higher for both the cervical and lumbar degenerative diseases. 2. The MEB NARSUM stated the applicant's range of motion of the cervical vertebrae was normal but extreme flexion did cause some discomfort down the spine between the spine and the scapula. The NARSUM also stated she was in continuous pain from chronic cervical and lumbar vertebral pain and that her condition appeared to be stable and no improvement in her condition could be expected under the present conditions; meaning that the condition would most likely not improve if she remained in the training environment. The MEB NARSUM further stated her combined condition of chronic pain in the lumbar and cervical vertebrae with disc bulging at both levels and stress fractures/stress reaction at multiple sites failed to meet retention standards. 3. The MEB diagnosed her with the unfitting conditions of stress fractures/stress reactions at multiple sites and chronic pain in lumbar and cervical vertebrae with disc bulging at both levels. The MEB recommended her referral to a PEB. However, it is important to note that the MEB lumped her conditions of chronic pain in lumbar and cervical vertebrae with disc bulging together as if it were a single condition. 4. The PEB confirmed her unfitting condition of degenerative arthritis of the cervical spine. The condition was found unfitting because pain prevented her from taking the APFT, moving with a combat load, or performing functional activities. She was rated under VASRD code 5242 and assigned a 10% disability rating for satisfactory evidence of painful motion that included considerations of functional loss. This decision was based on the finding of minimal spondylosis at C5. It was not based upon whether or not her condition had stabilized. The PEB also found that her condition of lumbar strain was not independently unfitting. a. The PEB considered her conditions chronic pain in lumbar and cervical vertebrae with disc bulging at both levels as two separate issues which were referred to respectively as: (1) degenerative arthritis of the cervical spine; and (2) lumbar strain. b. Disability ratings for conditions of the cervical spine are based on two factors. The first factor looks at the range of movement in the cervical spine and whether or how much the natural full range of motion has decreased. If a Soldier's range of movement has not been impacted they cannot receive a percentage of disability rating based on this factor. The second factor used to determine the appropriate disability rating for conditions of the cervical spine is pain. This factor is only applied if the Soldier in question has a full range of movement and only the minimum rating of 10% is authorized when this factor is applied. Additionally, when the second factor of pain is used, the VASRD codes of 5242 or 5003 are used and the condition is rated as degenerative arthritis. c. The PEB found that her condition of lumbar strain was not independently unfitting. While the evidence of record does not specifically address flexion or pain levels in the lumbar region, the rating was most likely derived from the fact that the lumbar strain was looked at as a standalone condition; the condition did not prevent her from performing military duties associated with her MOS or rank; and she had a full range of motion. 5. The applicant did not readdress the issues concerning her stress fractures. However, as stated in the previous Record of Proceedings, these conditions were not permanent and, as such, not considered unfitting by the PEB. 6. The applicant indicated that the underlying MEB and NARSUM concluded there would be "no improvement" in her condition and that the PEB concluded her condition was "stable" at the time of discharge and could possibly improve if she was removed from the military training environment. She further argued, Army Regulation 635-40, paragraph 4-19h.1.(a) provides that a service member will be awarded a "permanent" disability rating if the disability and compensable rating will remain unchanged during the following 5 year period. a. Whether or not her condition improved or declined upon her discharge, or was considered stable has no bearing upon this case. b. The applicant referenced Army Regulation 635-40, paragraph 4-19h.1.(a) to bolster her argument; however, it appears she failed to consider paragraph 4-19 in its entirety. This paragraph only applies to Soldiers whose combined rating would be sufficient for them to be medically retired. When this occurs, the PEB must make a determination as to whether the condition or conditions are permanent meaning they will either remain stable or deteriorate, or improve over the next five years. In cases where the PEB has questions or concerns over the stability of a condition, a Soldier is placed on the TDRL so that the condition can be monitored over a 5 year period and the PEB can, at the end of this period, make a determination as to the condition’s stability and thus award a permanent disability rating if warranted by the physical condition. Soldiers on the TDRL can be returned to duty or separated upon reevaluation. Not all Soldiers on the TDRL are permanently retired as the applicant presumes. c. Since the applicant received a 10% disability rating, the provisions of Army Regulation 635-40, paragraph 4-19 are not applicable in her case. 7. An award of a different rating by another agency does not establish error in the rating assessed by the Army's PDES. Operating under different laws and their own policies the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability. 8. The evidence of record indicates her disability evaluation was conducted in accordance with the applicable law and regulations and she concurred with the recommendation of the PEB. There does not appear to be an error or an injustice in her case. 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 AR20130004649, dated 19 December 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) AR20150000338 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150000338 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1