BOARD DATE: 30 April 2020 DOCKET NUMBER: AR20180013606 APPLICANT REQUESTS: reconsideration of his prior request for physical disability retirement in lieu of physical disability discharge and personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * Standard Form 600 (Chronological Record of Medical Care), dated 8 July 2008 * DD Form 2808 (Report of Medical Examination), dated 8 July 2008 * DD Form 2648 (Preseparation Counseling Checklist), dated 22 July 2008 * Physical Disability Information Report, dated 12 March 2009 * Headquarters Fort Myer Military Community Orders 071-0001, dated 12 March 2009 * DD Form 93 (Record of Emergency Data), dated 16 March 2009 * SGLV-8286 (Servicemembers’ Group Life Insurance Election and Certificate), dated 16 March 2009 * Army Continuing Education System (ACES) Record, dated 17 March 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty), with a through date of 30 April 2009 * Department of Veterans Affairs (VA) Outpatient Routing Slip, dated 28 August 2012 * VA letter, dated 31 August 2015 * VA San Diego Healthcare System, dated 29 August 2018 * UC San Diego Health After Visit Summary, dated 19 November 2018 * self-authored emails to the Army Review Boards Agency, dated between 3 September 2019 and 6 February 2020 FACTS: 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 AR20110003932 on 13 October 2011. 2. The applicant states: a. His physical disability discharge should be changed to physical disability retirement. He had four additional medical conditions that were documented at the time of his Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB), but not considered by the MEB or PEB. b. Two of the medical conditions (see “a” in his self-authored statement) were directly related to him being found unfit for duty, although they were never rated as separate conditions. He was only rated for the root cause when the secondary issues of loss of feeling in his legs/feet when walking or running, should have been considered as part of the rating because they are part of the reason he was unfit for duty. Two additional medical conditions (see “b and c” in his self-authored statement) were never taken into consideration at the time of his MEB/PEB. See attached document for a summary of additional conditions. c. The applicant summarizes conditions “a, b, and c” in a statement included with his application. He states condition “a” is left and right lumbar radiculopathy associated with chronic thoracolumbar strain with degenerative disc disease of the lumbar spine with bilateral radiculopathy. This has been rated by the VA as two separate conditions directly related to his back injury. Each was rated by the VA at 20 percent and is referred to in his MEB NARSUM as having numb feet when he ran and had brief recurrences of leg and foot numbness. d. Condition “b” is insomnia or sleep apnea syndromes. This has been rated by the VA as sleep apnea syndromes at 50 percent. It is also referenced in his MEB NARSUM as circadian rhythm sleep disorder, nonorganic sleep disorder, insomnia and persistent insomnia. And in the MEB packet as persistent insomnia. In 2008/2009 he crashed a vehicle because he fell asleep in the middle of the day while driving and was on the highest dosage possible of amphetamines to help him stay awake e. Condition “c” is heart arrhythmias. In 2009 he was required to report to the hospital multiple times a day for heart and blood pressure checks because his condition was not controlled by medication. This has been rated at 0 percent by the VA, because newer medications were provided by the VA and his condition was able to be controlled with medication and diet. f. He was not aware that any of the four medical conditions should have been considered by his MEB/PEB. He was sent a letter several years ago by the Physical Disability Board of Review (PDBR), because the conditions on the MEB/PEB fell into a group that had been inconsistently evaluated and the PDBR was set up to ensure they were evaluated fairly. g. Upon applying to the PDBR, he was denied evaluation because of prior review by the ABCMR. He did not think he had any other options available to him aside from Federal Court, but after discussions with a pro-bono attorney and help from his Member of Congress, he was informed he could present additional evidence to the ABCMR to support his claim. h. He could not find his VA Rating Determination letter for all conditions, but he attached a VA routing slip from August 2012 that contains his rating information, but does not contain accurate ratings because some of the conditions were under appeal. Later, some of the conditions were left at 0 percent because he was already rated at 100 percent and there was no point in doing additional paperwork. 3. The applicant enlisted in the Regular Army on 17 April 2002. 4. He provided a Standard Form 600, dated 8 July 2008, detailing the evaluation of his back and preparation of his MEB Narrative Summary (NARSUM) at Walter Reed Army Medical Center Orthopedic Clinic on the date of the form. The MEB NARSUM, states: a. About 4 years ago, the applicant was running while stationed at Fort Lewis, WA when his back began to hurt. He continued to run and his feet became numb. He went to the primary care clinic and was given a temporary physical profile and medication. He did not improve and was referred to physical therapy and later to the chiropractor. He eventually had a Magnetic Resonance Imaging (MRI) and no surgery was recommended. b. He was referred to the pain management clinic at Walter Reed Army medical Center and to physical therapy. He has had an epidural block and six rhizotomies (neurosurgical procedure that destroys problematic nerve roots in the spinal cord), which have not helped. He has had several episodes of acute pain and has been seen in urgent care or pain management for acute pain and was given Toradol (an anti- inflammatory) injections. c. His physical examination showed his gait was normal; his present pain level was 2-3/10. Alignment of the spine was normal. There was no local tenderness. On forward flexion with knees extended, his fingertips reached his toes, but he had pain as he flexed beyond 55 degrees. Lower extremity motor examination was normal. He could walk on his heels and the balls of both feet. His thoracolumbar spine range of motion was rated at 100 for forward flexion, extension 20, left lateral flexion 30, right lateral flexion 30, left lateral rotation 40, and right lateral rotation 40. d. His medications included Tramadol (narcotic to treat pain) which he took every 6 hours when the pain was severe, usually 102 days per week. He took Nortripyline (nerve pain medication) nightly and Celebrex (anti-inflammatory to treat pain) every morning. He would leave work early because of back symptoms about one time per month. He walks for the Army Physical Fitness Test (APFT), can fire a weapon, cannot ruck-march, prepare a defensive position or do rushes. He no longer ran and had not had recurrent significant leg numbness. Lately he had been working out more in the gym and had brief recurrences of leg and foot numbness. His primary area of symptoms, 95 percent of his pain, was in his low back. e. His diagnosis was chronic low back pain, medically not acceptable. His disposition shows he had achieved maximum benefits of non-operative treatment at that time and his condition was stable. Surgery was not indicated. Continued conservative care with emphasis on activity modification was recommended. He was unable to perform certain military required tasks, requiring a permanent physical profile rating of “3” in the lower extremities, rendering him medically unacceptable under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-39h. A permanent physical profile was being initiated and he was referred to a PEB for disposition. 5. A DD Form 2808, dated 8 July, shows * he underwent physical examination on the date of the form for the purpose of MEB * his feet were marked as “abnormal” with additional annotation of mild, asymptomatic pes planus (flat feet), and his skin was marked abnormal for pseudofolliculitis barbae (PFB) (razor bumps) * he was deemed not qualified for service and given a permanent physical profile rating of “3” for lower extremities and a rating of “1” in all other physical categories * the summary of defects and diagnoses include chronic lower back pain, gastroesophageal reflux disease (GERD), PFB, persistent insomnia, occasional upper back pain, subjective tinnitus, shin splints, and occasional tinea pedis (athlete’s foot) 6. A DA Form 199 (PEB Proceedings) shows: * a formal PEB convened on 18 September 2008 * the applicant was found physically unfit given a combined recommended disability percentage rating of 20 percent for chronic low back pain, VA Schedule for Rating Disabilities (VASRD) Code 5299/5237 * it was recommended his disposition be separation with severance pay if otherwise qualified * the applicant did not concur and demanded a formal hearing with personal appearance on 8 October 2008 7. A U.S. Army Physical Disability Evaluation Board memorandum to the applicant, dated 14 October 2008, states the Washington, D.C. PEB received his Soldier Election dated 8 October 2008 appealing the PEB proceedings. a. Based on a review of his case, the Board found no basis for a change in its action in his case and reaffirmed its previous findings. In the PEB’s 18 September 2008 letter to him, optimum level of care was explained as well as his disability rating. b. His unfitting condition, low back pain, was rated for ROM. His thorocolumbar spine ROM was measured as 100 degrees of forward flexion and non-compensable, although it was noted he had pain as he flexed beyond 55 degrees. Therefore, based on forward flexion of 55 degrees, is condition was rated at 20 percent. The VASRD awards 20 percent for between 31 – 60 degrees of forward flexion, thus he is appropriately rated. 8. The U.S. Army Physical Disability Agency (APDA) approved the PEBs findings and recommendations on 28 October 2008. 9. A letter from the APDA to the applicant’s Member of Congress, dated 14 January 2009, states: a. On 9 July 2008, an MEB determined the applicant did not meet medical retention standards for chronic low back pain. The applicant agreed with the findings and his case was forwarded to the Washington D.C. PEB. b. On 25 July 2008, an informal PEB determined he was unfit for further military service for the condition of chronic law back pain. The PEB recommended his separation from the Army with severance pay with a disability rating of 10 percent. The applicant disagreed with the findings and requested a formal hearing. c. On 26 August 2008, the formal PEB affirmed the informal PEB findings, after reviewing all available evidence, the additional medical documentation presented for review and listening to testimony and Counsels arguments. The PEB determined the applicant could not perform the duties of his military occupational specialty due to his medical condition and that elective surgery, Intradiscal Electrothermic Therapy, would not change his disability disposition or rating. However, upon further review, it was noted the applicant had pain on forward flexion beyond 55 degrees and based on the VASRD, forward flexion between 31 – 60 degrees is compensated at 20 percent. Therefore, the PEB increased his rating to 20 percent. The applicant disagreed with the findings, but did not present any new medical evidence. The PEB upheld the findings and forwarded the case to the APDA. d. On 7 November 2008, the applicant underwent the Intradiscal Electrothermic Therapy procedure at Walter Reed Army medical Center. On 11 December 2008, the Deputy Commander for Clinical Services at Kimbrough Ambulatory Care Center, requested the applicant’s separation date be extended to 7 April 2009 to allow for completion of his physical therapy, which was granted. e. The APDA reviewed the applicant’s case file and determined the findings and recommendations of the PEB were in conformance with the provisions of law and regulations. On 6 January 2009, the APDA sent the Fort Myer Transition Center a message authorizing the applicant’s separation from the Army on or before 30 April 2009. 10. Headquarters Fort Myer Military Community Orders 071-0001, dated 12 March 2009, reassigned the applicant to the U.S. Army Transition point for transition processing effective 30 April 2009. His date of discharge was 30 April 2009, with a 20 percent disability rating and he was authorized disability severance pay in the rank/grade of staff sergeant/E-6 based on 7 years and 14 days of service. 11. A letter from the APDA to the applicant’s Member of Congress, dated 17 April 2009, states their letter was a follow-up to their prior letter, dated 14 January 2009 and in response to the Member’s letter from 19 February 2009. The APDA Deputy Commander stated their agency contacted the Medical Treatment Facility that conducted the MEB on the applicant to determine whether there was any additional medical information available that would have affected his disability rating. They were subsequently notified by the hospital Deputy Commander that the applicant’s then current medical records did not reflect a worsening of his condition and that the MEB submitted did reflect his current medical condition. Accordingly, no further action would be taken on his case and he would separate later in the month with disability severance pay as previously scheduled. 12. His DD Form 214 shows the applicant was honorably discharged on 30 April 2009, after 7 years and 14 days of net active service, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability with severance pay, non-combat related. 13. A VA Outpatient Routing Slip, dated 28 August 2012, shows on the date of the document, the applicant had a combined disability rating of 80 percent for the following service-connected conditions: * lumbosacral or cervical strain, 20 percent * bipolar disorder, 30 percent * tinnitus, 10 percent * sleep apnea syndrome, 50 percent * hiatal hernia, 10 percent 14. A VA letter, dated 31 August 2015, shows the applicant had an overall combined disability rating of 70 percent effective 1 May 2009, 90 percent effective 10 September 2010, and 100 percent effective 7 May 2013. This letter does not delineate all of his service-connected disabilities. 15. A VA San Diego Healthcare System letter, dated 29 August 2018 states the applicant was being followed at their orthopedic spine surgery department at the VA. a. He had chronic, worsening low back and bilateral lower extremity pain for years. His symptoms are more likely than not related to early degenerative disc disease at L4- L5 and L5-S1, with bilateral L5 par defects and subsequent L5-S1 spondylolisthesis. b. Pars defect, or stress fracture of the bones of the lower spine, typically occurs during childhood or adolescence. It may be due to a genetic predisposition or a result of injury or overuse. Symptoms of low back and leg pain may be absent until adulthood, as pars defect oftentimes results in spondylolisthesis. Due to failed medical management and progressively worsening symptoms and decreased quality of life, the applicant was offered an anterior lumbar interbody fusion of L5-S1 as part of his treatment plan. 16. A UC San Diego Health After Visit Summary, dated 19 November 2018, lists the applicant’s hospital problems as: * foraminal stenosis of lumbosacral region * radiculopathy of lumbosacral region * degenerative disc disease at L5-S1 level * chronic bilateral low back pain with bilateral sciatica * spinal stenosis of lumbar region with neurogenic claudication 17. The applicant emailed the Army Board for Correction of Military Records on several occasions between September 2019 and February 2020, providing additional medical documentation, which has been discussed above, and stating: a. He did not have back issues before entering the military in 2001. He was medically separated in 2009 for unknown back pain. Being that there are no other back/spinal issues, he believes that it can be assumed that his fractures (that caused the ruptured disk shown in imaging) must have been the cause of the “unknown back pay” for which he was separated in 2009 and that it must have occurred while on active duty. b. Furthermore, in his military medical records and supported by the additional medical documents, bilateral extremity pain is documented and directly related to the issued in his back at the time of his service. Using the rating guidelines, the VA rated him for the bilateral extremity pain in each leg and back as separate issues. It is his belief that this should have also been done by the Army, because all three issues made him unfit for duty and were instead labeled as unknown back pain. 18. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant entered the Army ON 17 April 2002. He served on Active Duty through 30 September 2009 at which time he was honorably discharged IAW AR 635-40, Chapter 4 with a narrative reason of disability, severance pay, non-combat related. The applicant was issued a permanent profile and referred to the Integrated Disability Evaluation System (IDES) as he did not meet retention standards IAW AR 40-501, Chapter 3. On 8 July 2008 the applicant underwent the physical exam required to complete his Narrative Summary (NARSUM). The NARSUM only addresses the applicant’s back condition as being the only unfitting condition at that time. It was determined that the applicant had reached the maximum retention determination point (MRDP) for his back condition, and his case was then referred to the Physical Evaluation Board (PEB) for disposition. It was noted in the applicant’s NARSUM that he was not a surgical candidate at the time of that exam. No other conditions were addressed at the time the NARSUM was completed. An informal PEB convened on 18 September 2008, and the applicant was assigned a disability percentage of 20% for his back condition. Again, there is no mention of any other condition, and the applicant did not concur with the informal PEB findings. He requested a formal PEB hearing which occurred on 8 October 2008. Although there are several other physical and behavioral health conditions annotated in the applicant’s AHLTA record, there is no indication from any provider that any of those additional conditions were unfitting IAW AR 40-501, Chapter 3. The VA subsequently provided ratings for additional service connected physical and behavioral health conditions. It is important to understand that the VA finding of service connection does not automatically result in a military retirement or equivalent percentage ratings from the Army. The VA operates under different rules, laws and regulations when assigning disability percentages than does the Department of Defense (DoD). In essence, the VA will compensate for all conditions felt to be un-suiting. However, the DoD will only compensate for those conditions found to be unfitting. Therefore, based on the available documentation, it is the opinion of the Agency Medical Advisor that there is no indication to submit the applicant’s record for consideration of military medical retirement at this time. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, an advisory opinion, and regulatory guidance were carefully considered. The Board also considered the applicant’s MEB/PEB process, the findings of the PEB regarding unfitting condition(s) and the applicant’s post-service VA ratings. Based upon a preponderance of the evidence, the Board determined the final decision made by the PEB was not by error nor unjust. The Board determined there is insufficient evidence to amend the previous Boards’ decision. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110003932 on 13 October 2011. 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. REFERENCES: 1. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 2. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 3. 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. 4. The VASRD provides guidance on and lists the detailed requirements for assigning disability ratings to conditions for military disability, assigning a four-digit VASRD Code to each condition or analogous symptom of a condition and regulating the amount of compensation received for each disability. VASRD code 5237 is used for lumbosacral or cervical strain 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 rated at the following: a. 10 percent when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or, forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or combined range of motion (ROM) of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or combined ROM of the cervical spine is 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. 20 percent when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or the combined ROM of the thoracolumbar spine is not greater than 120 degrees; or the combined ROM of the cervical spine is not greater than 170 degrees; or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. c. 30 percent when forward flexion of the cervical spine is 15 degrees or less; or favorable ankyloses of the entire cervical spine. d. 40 percent when unfavorable ankyloses of the entire cervical spine; or forward flexion of the thoracolumbar spine is 30 degrees or less; or favorable ankyloses of the entire thoracolumbar spine. e. 50 percent when unfavorable ankyloses of the entire thoracolumbar spine f. 100 percent when unfavorable ankyloses of the entire spine. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the 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. These two government agencies operate under different policies. 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013606 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1