IN THE CASE OF: BOARD DATE: 21 March 2022 DOCKET NUMBER: AR20220000322 APPLICANT REQUESTS: reconsideration of his prior requests for physical disability retirement in lieu of physical disability separation with severance pay, through the finding of additional unfitting conditions, thereby increasing his disability percentage. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * 13 pages of email correspondence * 52 pages of service medical records * letter from Dr. dated 1 March 2022 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's cases by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130016870 on 4 June 2014, Docket Number AR20140012522 on 31 March 2015, and Docket Number AR20200004961 on 28 July 2020. 2. The applicant states: a. He has attached supporting evidence to be included in a new review of his case, which includes copies of his military medical records reflective of injuries and conditions that unequivocally support and substantiate a reversal of his previously denied appeals for an increase to his 10 percent disability rating. b. His provided evidence shows the following medical conditions/injuries were either improperly rated or not evaluated prior to his discharge: * bilateral L3 spine fracture * spine fracture misdiagnosis as back strain and myalgia (muscle aches and pain) with a return to full duty and physical training (PT), which caused a worsening of the condition * L3/L4 disc herniation compressing spinal cord/disc protrusion * spinal cord damage * muscle spasms * pain and loss of range of motion (ROM); unable to bend forward or flex sitting and standing * permanent physical profile restricting lifting, bending, running * loss of feeling/numbness in both legs down to feet * spondylosis (age-related change of the vertebrae and discs of the spine) and spondylolisthesis (the slipping of a vertebra out of position) * spine neuroforaminal stenosis (reduction of the size of the opening in the spinal column through which the spinal nerve exits) * moderate spinal canal stenosis/spinal cord and nerve damage * issuance of back brace for support * proof from Major (MAJ) documenting the Army inappropriately moved the applicant on a permanent change of station (PCS) reassignment to a new duty station where no one was familiar with his medical injuries, in the middle of his Medical Evaluation Board (MEB) c. The following is a list of the other medical conditions and injuries which were not evaluated at the time of his discharge from the Army: * unrelated, unevaluated bilateral knee arthralgia (joint stiffness), torn medial meniscus, popping, stiffness, and medial collateral ligament (MCL) sprain * otitis media (inflammation or infection in the middle ear) * bronchitis/asthma * bilateral shoulder injuries; left shoulder rotator cuff tear * right shoulder/right acromioclavicular (AC) joint injury with loss of ROM * ruptured Achilles tendon/Achilles tendonitis * bilateral ankle injuries/sprains d. Despite these medical conditions and injuries being documented in his Army medical records and the fact that they were all caused and aggravated by his active duty service, he still received an inappropriate disability rating of 10 percent upon discharge. He has included copies of his military medical records that clearly document his numerous service-connected and service-aggravated injuries and conditions which rendered him unfit for duty but were not properly evaluated during his Physical Evaluation Board (PEB) process. e. According to the Army regulation governing the PEB, “Once a determination of physical unfitness is made, the PEB is required by law to determine the physical disability rating using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). This did not occur during his MEB or PEB process, as documented by MAJ in the second paragraph of a document he signed on 3 July 1997, where he writes: “This Medical Board was not started at William Beaumont Army Medical Center and it appears that this service member was inappropriately PCSd after his Medical Board was started.” f. On the same document, notes in the first sentence of the second paragraph, “I have no films available for review,” which is probably why he failed to document the applicant’s spine fracture that was previously documented by his treating physicians in San Antonio, TX, who initiated the MEB/PEB process. g. There is also further proof that his medical conditions and injuries were misdiagnosed, as documented in the second paragraph of a 10 April 1997 documents written by Captain (CPT) where he writes: “[The applicant] is a 25-year-old active duty male who has no history of low back pain until he was involved in a motor vehicle accident (MVA) in April 1996. This low back pain was diagnosed as purely soft tissue at the time and he was sent back to duty.” This is irrefutable evidence from two military medical officers documenting that his medical conditions and injuries were not only misdiagnosed, but also improperly handled during the MEB/PEB process. These Army medical officers are subject matter experts and their medical expertise and testimony, along with the appropriate VASRD codes, validate and support that his disability rating of 10 percent should be corrected based on the obviously clear and unmistakable errors identified. h. Once his case is assigned to an experienced staff member, he would like the following questions addressed in the writing of the Record of Proceedings: (1) Did the applicant provide evidence documented in his Army medical records substantiating he suffered a bilateral spine fracture at the L3/L4 level that was misdiagnosed and confirmed in writing on 10 April 1997 by an Army physician, CPT? (2) Did the applicant provide evidence documented in his Army medical records that substantiated he indeed suffered a bilateral vertebral fracture to L3 of his spine? (3) Did the applicant provide evidence documented in his Army medical records that substantiated his spine fracture including spinal cord involvement due to disc protrusion caused by bilateral vertebral fracture of L3, spine neuroforaminal stenosis, moderate spinal canal stenosis, spondylosis, and spondylolisthesis? (4) Do neuroforaminal stenosis and moderate canal stenosis, which are documented in the applicant’s Army medical record, involve and negatively impact the spinal cord nerves? (5) Did the applicant provide evidence documented in his Army medical records of issuance of a permanent physical profile restricting lifting and bending, which substantiates abnormal mobility, requiring a brace? (6) Did the applicant provide evidence documented in his Army medical records that substantiate his limited ROM and muscle spasms, as documented by Army physicians? (7) Did the Army award the appropriate disability rating for the applicant’s documented spine injuries/conditions based on VASRD codes 5285 and 5295? (8) Did the applicant provide documentation from MAJ showing he documented in writing on 3 July 1997 that the applicant was inappropriately sent to a new duty station in the middle of his MEB? (9) Did the applicant provide evidence documented in his Army medical record, that substantiates he was diagnosed with medical conditions that were never rated by the MEB or PEB? Those conditions are as follows: * bronchitis/asthma * bilateral shoulder injuries/left shoulder rotator cuff tear * right shoulder/right AC joint injury resulting in loss of ROM * ruptured Achilles tendon/Achilles tendonitis * bilateral ankle injuries and sprains * tear to medical meniscus in knee i. Please understand these are the facts that have never been addressed in any of his previous denials over the past 10 years. The answers to these questions will prove he did not receive the appropriate physical disability rating upon discharge, which is why he is requesting these clear and unmistakable errors be corrected. 3. The applicant enlisted in the Regular Army on 22 January 1992 and after completion of Advanced Individual Training (AIT) was awarded the Military Occupational Specialty (MOS) 91E (Dental Specialist). 4. The applicant provided multiple service medical documents, dated between February 1992 and September 1995, showing the following: a. A DA Form 5181-R (Screening Note of Acute Medical Care) shows the applicant was seen on 5 February 1992 at the Troop Medical Clinic, Fort Knox, KY for flu symptoms, weakness, shortness of breath. He had fluid build-up in his ears, red throat, sinus pressure, wheezing in the right lower lung. He was given cough syrup, Cepacol, and directed to drink fluids. b. A Standard Form (SF) 558 (Emergency Care and Treatment) shows the applicant was seen at Reynolds Army Hospital, Fort Sill, OK, on 5 January 1993, for injury to his right shoulder while playing basketball. He complained of tenderness to his right shoulder, AC joint, and distal 1/3 of clavicle. His ROM was decreased 2 degrees due to pain. He was given modified duty until 8 January 1993. He was to avoid PT for 3 days, use a shoulder sling and swath, and take Motrin. c. An SF 600 (Chronological Record of Medical Care) shows the applicant was seen by Physical Therapy at the 121 Evacuation Hospital, Korea, on 22 January 1994, for a leg/knee evaluation. He complained of swelling for 1 week, stiffness, slipping and popping after injury while sliding into base. He denied previous knee injuries. He was assessed with an MCL sprain, grade 1, resolving. d. An SF 513 (Consultation Sheet) shows the applicant was seen at the Physical Therapy Clinic at the 121 Evacuation Hospital on 22 July 1994 for a left knee pain resulting from trauma that was healing well but had a history of locking. e. An SF 558, shows the applicant was seen at Reynolds Army Hospital on 24 September 1995, for cough and cold, chest pain when coughing, and wheezing. Chest x-ray was negative. He was assessed with bronchitis and released home. 5. The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows he was reassigned to Fort Sam Houston, TX, as a student to attend a second AIT, for reclassification to MOS 91P (Radiology Specialist), effective 9 February 1996. 6. The applicant provided multiple additional service medical documents, dated between March 1996 and November 1996, showing the following: a. An SF 600, shows the applicant was seen on 5 March 1996 at the Troop Medical Clinic, Fort Sam Houston, TX, with complaints of pain in his right tow for 2 days. b. An SF 558-103 (Emergency Care and Treatment), shows the applicant was seen at the Brooke Army Medical Center Emergency Room, Fort Sam Houston, TX on 6 April 1996, after his involvement in a motor vehicle accident. He was seen for complaints of back and left shoulder pain. The notes show he had a history of asthma. He was diagnosed with myalgia secondary to a prior motor vehicle accident. c. An SF 600, shows the applicant was again seen as a follow-up on 12 April 1996 at the Troop Medical Clinic, Fort Sam Houston, TX, for mid lower back pain subsequent to a motor vehicle accident where he was rear-ended on 6 April 1996. He was being seen for the issuance of a physical profile only and chose to follow up with his primary care doctor. His prior medical history shows he was involved in another motor vehicle accident in 1991, leading to lower back pain. He was not to participate in PT for 30 days, per his request. d. An SF 600 shows the applicant was seen at the Troop Medical Clinic, Fort Sam Houston, TX on 6 June 1996, for complaints of right knee and pain to both ankles for 5 days. The notes appear to show he was to avoid running 72 hours then participate in PT at his own pace and distance and use arch support. e. An SF 600 shows the applicant was again seen at the Troop Medical Clinic, Fort Sam Houston, TX, on 20 June 1996 with complains to right knee and left ankle pain for the past 3 days. f. An SF 558-103, shows the applicant was seen at the Brooke Army Medical Center Emergency Room on 24 June 1996 with complains of a left ear infection. He was diagnoses with otitis media or inflammation or infection in the middle ear and given Amoxicillin, Motrin and Sudafed. g. An SF 600, shows the applicant was again seen at the Troop Medical Center, Fort Sam Houston, TX, on 2 August 1996 for lower back pain for the past 3 months’ status post a motor vehicle accident. He was a student in 91B school and had multiple visits for back pain. He needed an evaluation by Physical Therapy. He was instructed to participate in PT at his own pace for 1 week. h. An SF 600, shows the applicant was again seen at the Troop Medical Center, Fort Sam Houston, TX, on 19 August 1996, for lower back pain status post a motor vehicle accident 5 months ago. He was assessed with probable lower back pain/strain and was instructed to participate in physical therapy. i. A Radiologic Examination Report shows the applicant underwent magnetic resonance imaging (MRI) of the knee, without contrast, at Brooke Army Medical Center, on 1 November 1996. The reason for the exam was to rule out a tear. The resulting impression was a tear in the mid-substance of the medial meniscus. 7. An SF 600, shows the applicant was again seen at the Troop Medical Clinic, Fort Sam Houston, on 3 March 197 with recurring complaints of lower back pain for the past 10 months, status post a motor vehicle accident. He was assessed with back pain and was to undergo imaging. The instructions appear to show no running, jumping, or marching for 7 days. 8. A Radiologic Examination Report shows the applicant underwent an MRI of the L- Spine (without contrast) at Brooke Army Medical Center, Radiology Clinic on 6 March 1997. The report shows the following: a. The reason for the order was status post back trauma with fracture (L3) several months ago with current persistent low back pain. Sagittal spin echo T1 and FSE T2 images of the lumbar spine were obtained as well as axial spin echo T1 and FSE T2 images from L3-4 through S1. No contrast was administered. b. The findings state the following: (1) Sagittal images demonstrate normal alignment of the lumbosacral spine. There is increased T2 signal within the posterior inferior end place of L3, which may represent a healing fracture in light of the applicant’s history. There is slight decreased T2 signal at the L3-4 disc space, which may be degenerative with preservation of the disc height. The remainder of the disc spaces were otherwise normal. The conus is normal in caliber and signal. (2) The axial images demonstrate the following: at L3-4 there is a central broad- based disc protrusion/osteophyte complex which extends superiorly from the disc space. There is mild bilateral neoforaminal stenosis and moderate spinal canal stenosis. (3) At L4-5 a broad-based disc bulge/osteophyte complex is present without associated spinal canal or neuroforaminal stenosis. At L5-S1 no disc protrusion or neuroforaminal compromise is seen. c. The impression shows the following: * central broad-based disc protrusion/osteophyte complex at L3-4 as described with mild bilateral neuroforaminal stenosis * healing fracture of the postero-inferior portion of L3 vertebral body. d. An addendum to the report shows review of the MRI study in conjunction with plain films obtained 1 day previous confirms bilateral pars interarticularis fracture at L3 without associated spondylolisthesis. These do not appear acute in nature. 9. An SF 600 shows the applicant was seen on 10 March 1997 at the Office of the Flight Surgeon, Fort Sam Houston, TX, with complaints of lower back pain for 11 months. a. Signs and symptoms include his lower back feeling like it locks up, preventing him from sitting straight up in a chair or bending forward, constant dull ache pain that becomes sharp after exercise and sometimes intensifies at night in bed, bilateral radiculopathy of sharp pain down back of legs and sometimes numbness of feet. b. A note of special problems indicates the applicant was at the time at Fort Sam Houston, TX, in a training status where he was required to take an Army Physical Fitness Test (APFT). He took an APFT and passed 2 weeks ago, but with great difficulty due to the pain and was unable to perform another APFT due to the pain and a loss of ROM. c. Radiology shows: X-rays: L3 fracture or pars defect; bone scan: fracture L3, pars interarticularis; MRI: healing fracture of L3, central broad base disc protrusions/osteophyte complex L3-4 with mild bilateral neuroforaminal stenosis. d. Exam of the L-spine shows normal gait bilateral, low extremity strength 100 percent against resistance; ROM limited flexion 30 degrees (unable to touch floor due to pain), limited extension 8-10 degrees due to pain; slightly limited rotation with pain; palpation L3-4 bilateral tenderness; paraspinal muscle spasms. e. The assessment and prognosis shows the following: * probable L3 spinal fracture at pars * probable central disc herniation L-4 level * acute traumatic lumbar sprain and fracture with bilateral radiculopathy * unrelated bilateral knee arthralgia (not evaluated today) 10. An SF 600, dated 13 March 1997, shows the applicant was seen at Brooke Army Medical Center on the date of the form for lower back problems and a request for Orthopedic consult was written to affirm definitive diagnosis of l3 pars fracture, bilateral, L3 par non-union, and L3 disc herniation. The applicant was receiving conservative medical management, prescribed Naprosyn, and had a T2 (temporary physical profile rating of “2”) with no unit PT, and return to the clinic in 2 weeks after Orthopedic consult. 11. A DA Form 3349 (Physical Profile), dated 13 March 1997, shows the applicant was given a temporary physical profile rating of “2” in the category “L” (Lower extremities) due to L3 bilateral pars fracture and to rule out spinal non-union. His assignment limitations were no unit PT; orthopedic evaluation was in progress with a permanent physical profile pending. 12. An SF 513, shows on 13 March 1997, a request was made for the applicant’s evaluation by the Orthopedic Clinic, Brooke Army Medical Center. b. The applicant presented with low back pain due to a motor vehicle accident 10 months prior. X-rays, bone scan, MRI reveal probable L3 bilateral pars fracture, possible non-union and possible L3-4 disc herniation. He was given a provisional diagnosis of L3 bilateral pars fracture, rule out non-union, and determine MEB. c. Please evaluate to affirm the diagnosis, determine physical profile/MEB. Please see within 2 weeks as the applicant was a student at 91P (Radiology Specialist) school due to PCS on 9 April 1997. d. The consultation report portion of the form shows the applicant was seen on 28 March 1997 at the Orthopedic Clinic, Brooke Army Medical Center, as requested. The handwritten notes of the consultation are partially illegible. The legible portion shows spondyloses of L3 and disc space narrowing, bilateral L3 pars fracture, and disc protrusion at L3-4. 13. A second DA Form 3349, dated 4 April 1997, shows the applicant was issued a permanent physical profile rating of “3” in the category “L” due to bilateral pars interarticulars fracture L3. His assignment limitations were no lifting over 25 pounds and excused from the APFT. He was prevented from performing all functional activities. He was to stretch, exercise, and walk at his own pace only for unit PT as he was undergoing an MEB. 14. There is no available evidence of record the applicant was issued a permanent physical profile rating, limiting him in any functional areas, or affecting his ability to perform the duties required by his MOS and/or grade, or rendering him unfit for military service, for the following conditions: * bilateral knee arthralgia * torn medial meniscus * popping, stiffness, MCL sprain * otitis media * bronchitis/asthma * bilateral shoulder injuries/left shoulder rotator cuff tear * right shoulder/right AC joint injury resulting in loss of ROM * ruptured Achilles tendon/Achilles tendonitis * bilateral ankle injuries and sprains * tear to medical meniscus in knee 15. An SF 93 (Report of Medical History), dated 10 April 1997, shows the applicant provided information pertaining to his medical history for the purpose of MEB examination. The applicant indicated he currently had bilateral fracture in his lower back and chronic back pain rendering him unable to form his duties. He stated his condition was just getting worse and he was expected to need surgery. He indicated “yes” to the following: * wear a brace or back support * swollen or painful joints * frequent or severe headache * dizziness or fainting spells * ear, nose, or throat trouble * chronic or frequent colds * hay fever * skin disease * asthma * shortness of breath * pain or pressure in chest * cramps in his legs * broken bones * recent gain or loss of weight * bone, joint, or other deformity * painful or “trick shoulder or elbow * recurrent back pain * trick or locked knee * frequent trouble sleeping 16. The applicant’s MEB Narrative Summary (NARSUM), signed and dated by CPT on 10 April 1997, shows the following: a. The applicant was then currently an AIT student for MOS 91P at Brooke Army Medical Center, Fort Sam Houston, TX, from January 1996 through April 1997. He had no history of low back pain until he was involved in a motor vehicle accident in April 1996. This low back pain was diagnosed as purely soft tissue at the time and he was sent back to duty. He was treated with physical therapy and non-steroidal anti- inflammatory medications and was sent back to duty a few months after that. This did not relieve the pain and as he continued his Army PT conditioning, the pain got worse. He denied any loss of bowel or bladder function or any loss of sensation or weakness in both lower extremities. However, he does have pain with standing for a long time and when wearing lead aprons, which is part of his job, and trouble sleeping due to night pain. He was unable to do push-ups, sit-ups, run, or lift. He localized the pain at the lumbosacral junction more on the left side. b. He was evaluated and found to have bilateral L3-4 grade I spondylolisthesis. He also had bilateral L3 spondylolysis. His MRI done on 6 March 1997 confirms what was found on his plain films. c. His physical examination revealed the following: * normal auditory exam * lungs were clear to auscultation * bilateral upper extremities had full active range of motion in the shoulders and elbows * bilateral lower extremities show hips, knees, and ankles had full active range of motion without pain * there was diffuse tenderness to palpitation throughout his lower back * straight leg raise was negative bilaterally * there were no tension signs d. Laboratory and x-ray date showed the following: * chest x-ray was within normal limits * his MRI and plain films showed L3-L4 grade I spondylolisthesis and showed bilateral L3 spondylolysis e. In his present condition, the applicant was unable to complete the APFT. He could walk 100 yards without his back irritating him and was unable to lift weights heavier than 20 pounds. He passed his last APFT in February 1997. He takes Motrin approximately 3 times per week with some, but not total relief of pain. d. The applicant was diagnosed with L3pars spondylolysis and L3-4 grade I spondylolisthesis. Due to the applicant failing conservative treatment and being unable to complete the rigorous requirements of an active duty Soldier, the recommendation was that his case be brought before a PEB in accordance with Army Regulation 40-501 (Standards of Medical Fitness). At present, he does not require surgery and does not desire such. Prognosis is poor for ability to perform the stressful functions of a Soldier. 17. A DA Form 3947 (MEB Proceedings), shows the following: a. An MEB convened on 22 April 1997, at Brooke Army Medical Center, Fort Sam Houston, TX, where the applicant was stationed as a student. The applicant did present views in his own behalf. b. The applicant was found to have the conditions of L3 pars spondylolysis and L3-4 grade I spondylolisthesis, with an approximate date of origin of April 1996, which were permanently aggravated by service. There are no other diagnosed conditions listed on his DA Form 3947. c. The applicant was referred to a PEB for those conditions and on 23 April the applicant indicated he agreed with the MEB’s findings and recommendations. 18. The applicant’s DA Form 2-1 shows after his completion of AIT at Brooke Army Medical Center, Fort Sam Houston, TX, on 9 April 1997, he was reassigned via PCS move to William Beaumont Medical Center, El Paso, TX, for a duty assignment as an X-Ray Technician in his new duty MOS of 91P, effective 7 May 1997. 19. The applicant provided a copy of a multi-page William Beaumont Army Medical Center, El Paso, TX, Back Questionnaire, dated 26 June 1997, which has been provided in full to the Board for review, and shows the applicant indicated that in addition to his back problems, he had bronchitis and skin problems. His also indicated he was unable to do all of his work duties due to his back pain and marked that 23 out of 24 listed statements regarding his back pain applied to him, including such things staying at home most of the time because of his back and changing positon frequently to try and get his back comfortable. 20. A William Beaumont Army Medical Center memorandum, dated 4 June 1997, shows the applicant was then currently undergoing MEB with planned referral to the PEB and the following information was submitted for completion of a Line of Duty (LOD) determination in order to process the PEB: * date injured: 6 April 1996 * how injured: struck from behind as the driver in a motor vehicle accident in San Antonio, TX * diagnosis: myalgia 21. A Consultation Note, dated 26 June 1997, and signed by MAJ on 3 July 1997, shows the following: a. The applicant had a 1-year history of back pain. The pain was located on the lumbar spine with occasional involvement of the lower extremities to a very minor extent. He was currently undergoing MEB begun at Brooke Army Medical Center by Dr. His Medical Board appears to be complete. He has a permanent physical profile which limits his walking, wearing a helmet, carrying a rifle, and marching. He is not to lift over 20 pounds. The only change he would make to the physical profile is to avoid repeated bending. This is a very restrictive profile as it stands and entirely appropriate for his diagnosis of spondylolisthesis. b. The recommendations shows MAJ indicated he had no films available for review. He further indicated he would obtain new radiographs today (the day of the Consultation Note) and make an addendum if it was appropriate based on the findings based on that film. c. Based on his MEB, the applicant has a grade I L3-L4 spondylolisthesis and bilateral L3 spondylolysis. If his findings on the applicant’s radiograph are consistent with this report, he will not dictate or write an addendum. d. He indicated he would update the applicant’s physical profile to include no bending and follow-up would be on an as-needed basis with the Troop Medical Clinic. He additionally commented this MEB was not started at William Beaumont Army Medical Center and it appears the applicant was inappropriately PCSd after his MEB was started. 22. It is of note that there is no evidence of record that MAJ wrote an addendum after obtaining current radiographs of the applicant on the date of the Consultation Note, which indicates, as he states in above Consultation Note, that his findings on the current radiograph were consistent with his report as written and an addendum was not necessary. 23. A DA Form 199 (PEB Proceedings) shows the following: a. A PEB convened on 8 July 1997 to consider the applicant’s condition (VASRD codes 5285 and 5295) of chronic low back pain following a motor vehicle accident on 6 April 1996 with x-rays and MRI evidence of L3 par spondylolysis, L3-L4 grade I spondylolisthesis, fracture of the body of L3, L3-L4 disc bulge with mild neuroforaminal stenosis and moderate canal stenosis. b. Audit train in the health records clearly indicates no back complaints prior to April 1996 and then ever increasing back pain made worse with PT, resulting in a physical profile precluding APFT. Past medical history includes back injury in 1991 prior to enlistment with no sequelae. There was no evidence of spasm or radiculopathy. c. The applicant’s functional limitations in maintaining the appropriate level of mobility and flexibility, caused by the physical impairments recorded above, made him unfit to perform the duties required his rank/grade of specialist /E-4 and in his MOS of Radiology Specialist. In the absence of an approved LOD report concerning the circumstances surrounding his disability, his case was processed as if a favorable determination had been made. d. The PEB found the applicant physically unfit for the above-listed conditions and recommended a combined rating of 10 percent and that his disposition be separation with severance pay if otherwise qualified. e. On 22 July 1997, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case. 24. A SF 600, dated 15 August 1997, shows the applicant was seen at William Beaumont Army Medical Center Orthopedic Clinic on the date of the form for follow-up of his back pain for which an MEB has been done. He has a spondylolysis at L3 with slippage. He complained of occasional muscle spasms once every 2 weeks. 25. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged after 5 years, 8 months, and 18 days of net active service on 9 October 1997, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability with severance pay. 26. The applicant previously applied to the ABCMR requesting correction to his PEB rating to include additionally unfitting conditions and a higher overall disability rating. On 4 June 2014, the Board denied the applicant’s request, determining the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of the applicant’s records. 27. The applicant again applied to the ABCMR, requesting reconsideration of his previously denied request. On 31 March 215, the Board denied the applicant’s request for reconsideration, determining the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of the applicant’s records. 28. The applicant applied a third time to the ABCMR, requesting reconsideration of his prior requests for physical disability retirement through the addition of unfitting conditions and a higher disability rating. In the adjudication of that case, a medical advisory opinion from the Army Review Boards Agency (ARBA) medical advisor was obtained on 16 June 2020, which states the following: a. The applicant is applying to the ABCMR requesting an increase in his disability rating. He states that he was inappropriately separated with severance pay in October 1997 when he should have received a medical retirement. He claims several medical conditions which were later service-connected and compensated by the VA should have been part of his 1997 Physical Disability Evaluation System findings; and that the Army failed to appropriately apply the VASRD) to his unfitting disability of chronic low back pain with bilateral L3 pars spondylolysis and grade 1 spondylolisthesis at L3-L4. b. The ARBA medical advisor was asked to review this request. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), and the VA electronic medical record (JLV). c. This is his third application with this request, both of which were previously denied, one on 4 June 2014 and the other on 6 April 2015. The denials with their associated supporting documents were reviewed in their entirety. There are 2 new documents with the current application: (1) A lumbar MRI report dated 6 March 1997: The results of this study were reported in his 10 April 1997 MEB NARSUM which was included in both prior applications. (2) An orthopedic follow-up noted completed at William Beaumont Army Medical Center on 15 August 1997: The applicant had presented complaining of intermittent lumbar muscle spasms for which muscle relaxants did not provide much relief. While he did have some pain with motion, the surgeon noted he could forward flex to the point where his fingers were just 6 inches short of touching the floor. This much flexion is more than 70 degrees. He also noted that he could stand fully erect. c. With regard to the claim that additional conditions should have been considered during his evaluation in the Physical Disability Evaluation System, no evidence was found in the case file or electronic databases which support this claim. His Medical ME) examiner found no abnormalities in either his upper or lower extremities on his 10 April 1997 examination. The NARSUM states in part: Bilateral upper extremities have full active range of motion in the shoulders and elbows … Bilateral lower extremities show hips, knees, and ankles have full active range of motion without pain. d. The only diagnosis listed on the MEB narrative summary was L3 pars spondylolysis and L3-4 grade 1 spondylolisthesis, and this was the only condition noted by the MEB on his MEB Proceedings. The applicant concurred with the MEB’s recommendations and findings, and signed the DA Form 3947 on 23 April 1997. While he later developed conditions which were service-connected and compensated for by the VA, these conditions were not noted as either failing retention standards or potentially unfitting for continued service prior to his separation from the Army. e. The applicant’s requests places much of his reasoning on his spine fractures. A fracture can be described as a partial or complete discontinuity of a bone. There are a number of causes for fractures and they include congenital defects, direct or indirect trauma, an underlying pathologic process (e.g. metastatic cancer), or acquisition from repetitive micro-trauma (e.g. a stress fracture). f. In the current application’s emails, the applicant claims in several places to have sustained a spinal cord injury. There is no evidence of any injury to his spinal cord. Based on the documentation, the applicant was correctly diagnosed with bilateral (left and right) L3 pars spondylolysis and grade 1 L3-4 spondylolisthesis. (1) Spondylolysis is a spine fracture or defect that occurs at the region of the pars interarticularis located among the posterior spinal elements. These defects are present in up to 6 percent of the population, are most often either congenital or acquired, and almost never secondary to acute trauma. While reports of trauma are often associated with an onset or increase in lumbar pain associated with spondylolysis, as in the applicant’s motor vehicle accident in which he was rear-ended, isolated pars fractures are very rarely caused by trauma as the energy from the trauma fractures nearby associated structures as well. (2) Spondylolisthesis is the forward slippage (anterior translation or displacement) of one vertebral body on another which is possible when both pars at one level are broken. Approximately 50 – 81 percent of people with bilateral spondylolysis have associated spondylolisthesis. These slips are graded 1 to 5, with 1 being a minimal slip and 5 being a complete slip. Stability of the spine comes not only from the bony structures, but also from a large number of strong ligaments and the intervertebral discs. Because of this, the forward slippage is quite slow and progresses over years or decades. (3) The applicant likely had these defects with some mild slip at the time of his motor vehicle accident. g. The MRI completed in March 1997 was read by the radiologist as having “increased T2 signal within the posterior inferior end plate of L3 which may represent healing fracture in light of patient's history.” Unfortunately, the history given to the radiologist was not accurate. It stated the applicant had sustained trauma leading to a fracture of L3 several months ago, now with persistent low back pain. The applicant’s motor vehicle accident had been 11 months prior to the study, and there had been no previous diagnosis of a fracture consistent with this MRI finding. There are other benign conditions with could have been the cause of the increased T2 signal. While an 11- month-old endplate fracture cannot be ruled out, if present, it was healing and had not caused any deformation of the bone or spinal instability. h. The MRI was amended after comparison with the plain radiographs. The radiologist noted the bilateral pars defects of L3, adding “These do not appear acute in nature.” If the increased T2 signal noted above had been due to an endplate fracture 11 months prior, and his pars defects had occurred at the same time, they should have had the same abnormal T2 signal, particularly in light of his continued symptoms. They did not have this abnormal T2 signal, which is probably why the radiologist made the comment that they did not “appear acute in nature.” i. The applicant gives two reasons why he believes his lumbar spine disability was incorrectly rated by the Army. One is that his lumbar spine forward flexion was reduced to less than 60 degrees and so it should have been rated at 20 percent. In a flight surgeon’s clinic note dated 10 March 1997, the exam showed the applicant to have lumbar muscle spasms with forward flexion limited to 30 degrees. This decreased motion was likely secondary to the muscle spasms or other pain generators and was not a permanent impairment which would have warranted a higher disability rating. The 15 August 1997 orthopedic note discussed above showed his flexion was more than 70 degrees and therefore 10 percent was the appropriate rating based on his range of motion in accordance with VASRD 5292. 5292 Spine, limitation of motion of, lumbar: Severe ..........................................................40 Moderate ......................................................20 Slight ............................................................10 j. The second claim is that he should have received a 60 percent rating for his L3 pars spondylolysis with grade 1 L3-4 spondylolisthesis because there was a fracture. The VASRD Code he notes is 5285, and does provide a rating of 60 percent for a vertebral fracture without cord involvement and abnormal mobility (instability) requiring a neck brace. There is no evidence the applicant sustained such a fracture requiring such a brace. While the treatment of patients with spondylolysis may involve a lumbar brace, this is for relief of symptoms and does not result in healing of the fractures/defects. k. Finally, the applicant states that the ratings for his lumbar condition should be additive. However, section 4.14 of Part 4 of Title 38 states that while symptoms may overlap and could be considered under multiple codes, “the evaluation of the same disability under various diagnoses is to be avoided ... the evaluation of the same manifestation under different diagnoses are to be avoided.” This is known as “pyramiding.” l. When presented with a situation where a veteran’s symptoms may be rated under two different VASRD codes, section 4.7 - Higher of two evaluations – is brought into play: “Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” m. In combination, these two sections say a veteran cannot receive multiple ratings for the same symptoms, and when there is a choice of which evaluation to use in determining the rating, apply the one most beneficial to the veteran when possible. n. Based on the information currently available, it is the opinion of the ARBA medical advisor that a neither a change in the disability rating for his lumbar condition nor a referral of the applicant’s record to Disability Evaluation System for reconsideration is warranted at this time. 29. On 28 July 2020, the Board denied again the applicant’s request, determining the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of the applicant’s records. 30. The applicant provided a letter dated 1 March 2022, from Board Certified Orthopedic Surgeon, stating the following: a. He is a Board-Certified and Fellowship-trained Orthopedic Spine Surgeon with over 26 years of experience. He has served in the U.S. Air Force as the Chief of Spine Surgery and was a Spine Surgery Consultant to the Surgeon General and the Pentagon. b. The applicant is a patient that is currently under his care. He has recently undergone a L4-S1 ALIF/PSFI with a revision at L3/L4 that had previously failed. It is more likely than not that his current spine condition, which has required surgical intervention, is related to his service-connected bilateral spine fracture of L3, which occurred in April 1996 while the applicant was on active duty. This led to him receiving an L3/L4 spinal fusion that was completed in 2004. The applicant has developed adjacent level disease at L4/L5and L5/S1 which has required extension of his previous fusion which was performed by him on 7 February 2022. c. He has reviewed the applicant’s documented medical conditions notated in his Army medical records, specifically the medical diagnosis of the spine fracture he suffered in April 1996, while serving our country as an Active-Duty Army Soldier. Furthermore, he has reviewed the VASRD Codes 5285 and 5295, listed below, which were in place at the time of the applicant’s discharge. It is likely that the initial raters who awarded the applicant a 10 percent rating upon discharge, were either not aware of VASRD codes 5285 or 5295, or they did not have the information contained in the applicant’s Army medical records because the VASRD codes and his medical records from the Army support his appeals for correction of the inappropriate rating received when he was discharged. d. VASRD Code 5285 pertains to the spine. A rating of 10 percent 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 percent for “vertebral fracture” without cord involvement and abnormal mobility requiring a neck brace. e. VASRD Code 5295 pertains to lumbosacral strain. A rating of 10 percent is assigned for lumbosacral strain with characteristic pain on motion. The next level of rating is 20 percent for muscle spasm on extreme toward bending and loss of lateral spine motion, unilateral, in standing position. The next level is 40 percent when it is severe, with listing of the whole spine to the opposite side. f. Lastly, the radiology reports, PEB Proceedings, and physician notations in the applicant’s Army medical records, which document that the applicant suffered a vertebral fracture at L3, neuroforaminal stenosis, moderate spinal canal stenosis, spondylosis, and spondylolisthesis, which has adversely impacted him until today. The applicant was also issued a back brace, along with a permanent physical profile restricting him from bending (ROM). It is his expert opinion as a Board-Certified Orthopedic Spine Surgeon, that the applicant’s medical injuries/conditions were not properly rated, based on the requirements listed above under both VASRD Codes 5285 and 5295. At the very least the applicant should have received the next level rating of 60 percent under VASRD Code 5285 and 20 percent under VASRD Code 5295, since he has satisfied the conditions for that rating, based on the evidence documented in his military medical records. 31. 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 may compensate the individual for loss of civilian employability. 32. Title 38, USC, 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 VA rating does not establish an error or injustice on the part of the Army. 33. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 34. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests reconsideration of his claim for an increase in rating for the lumbar condition. The PEB found his Chronic Low Back Pain status post motor vehicle accident with x-rays and MRI evidence of L3 pars spondylolysis, L3-L4 grade I spondylolisthesis, fracture of the body of L3, L3L4 disc bulge with mild neuroforaminal stenosis and moderate canal stenosis, unfitting for continued service. There was no evidence of spasm or radiculopathy. The condition was rated at 10% under VASRD code 5285 5295. The case has been reviewed previously July 2020, March 2015 and June 2014. He also requests review of other conditions he believes were not evaluated. a. The applicant presented as new evidence the following list of injuries/conditions he states were either rated improperly or not evaluated at all: Bilateral L-3 Spine Fracture; Spine Fracture misdiagnosis as a Back Strain and Myalgia and return to full duty and Physical Fitness which caused condition to get worse; L3/L4 Disc Herniation compressing spinal cord (Disc protrusion); Spinal Cord Damage; Muscle Spasms; Permanent Profile restricting lifting , bending, running, etc.; Loss of feeling Numbness down both legs down to feet; Spondylosis and Spondylolisthesis; Spine Neuroforaminal Stenosis; Moderate Spinal Canal Stenosis (Spine Cord and Nerve Damage); Issuance of Back Brace for support; Proof from Major William Stevens documented that the Army inappropriately PCS'd my in the middle of a medical board to a new duty station where no one was familiar with my medical injuries. (1) Bilateral L-3 Spine Fracture; Spondylosis and Spondylolisthesis; Spine Neuroforaminal Stenosis; Moderate Spinal Canal Stenosis (Spine Cord and Nerve Damage): These were thoroughly referenced and evaluated in the record. (2) L3/L4 Disc Herniation compressing spinal cord (Disc protrusion): Disc protrusion was noted in the record. Spinal cord compression was not confirmed. (3) Spine Fracture misdiagnosis as a Back Strain and Myalgia and return to full duty and Physical Fitness which caused condition to get worse: The initial diagnoses were noted in the record. There was no objective evidence presented that the lumbar spine condition progressed during military service. (4) Spinal Cord Damage: This was not confirmed in the record. (5) Muscle Spasms: Muscle spasm was reported in March 1997 and occasional muscle spasm in August 1997. Muscle spasm was NOT noted during the MEB exam. And it should be noted that muscle spasm on extreme forward bending was not documented, which is the criteria for the 20% rating under discharge code 5295. (6) Pain and Loss of Range of Motion unable to bend forward or flex sitting and standing: Near the time of the MEB evaluation (15Aug1997 Orthopedic Clinic WBAMC), flexion was demonstrated to allow finger tips to reach within 6 inches of the toes. The ability to stand fully erect was also documented. (7) Permanent Profile restricting lifting, bending, running, etc: The permanent profile was noted in the record and contributed to the condition being determined unfitting for continued service. However, the physical profile is not associated with VASRD criteria. (8) Loss of feeling/Numbness down both legs down to feet: The MEB exam showed a normal neurologic exam. (9) Moderate Spinal Canal Stenosis (Spine Cord and Nerve Damage): Moderate Spinal Canal Stenosis was noted in the record. Spine Cord and Nerve Damage were not confirmed (10) Issuance of Back Brace for support: This was not noted in the MEB narrative summary, nor is it an element of VASRD rating criteria. (11) Proof from Major William Stevens documented that the Army inappropriately PCS'd my in the middle of a medical board to a new duty station where no one was familiar with my medical injuries: It is acknowledged that the applicant was PCS’d after the start of the MEB. However, there was no objective evidence that this had any negative impact on the final assessment of his condition (which determines the rating). A brief addendum was noted (03Jul1997), and slight modification to physical profile limitations (no repetitive bending). b. Concerning the additional bullets listed in the applicant’s 13Jan2022 12:38 pm email: Evidence of Bilateral fracture at L3-L4 and L3 vertebrae was documented in the record. The applicant’s lumbar condition was initially diagnosed as Myalgia. Broad based disc protrusion at L3-4 with mild bilateral neuroforaminal stenosis; and moderate spinal canal stenosis were documented in the 06Mar1997 MRI results. The conus [medularis] was noted to be normal in caliber and signal. At the time of the MEB exam, L3-S1 nerve root was +5/5 bilaterally and straight leg raise was negative bilaterally. L3-S1 dermatome was intact to light touch and pinprick. Straight leg raise was negative bilaterally. And gait was nonantalgic. Therefore, spinal cord involvement was not confirmed at the time of discharge. In addition, a more recent lumbar MRI on 05Jul2018, showed no evidence of damage to the spinal cord—the spinal cord was unremarkable, and had normal signal. Neuroforaminal Stenosis and Moderate Canal Stenosis were documented, however, at the time of separation, there were no objective findings on physical exam of radiculopathy or physical impairment due to peripheral nerve compromise. A permanent physical profile restricting lifting and bending does not prove abnormal mobility requiring a brace; however, at minimum, a physical profile can provide time for further healing and it can also provide protection from further injury. Lumbar range of motion imitation was noted in the record. The severity of limitation in the back range of motion was documented near the time of separation and was an important rating factor. Muscle spasm was documented March 1997 in the record. It was not observed during the MEB exam nor in the exam near the time of the MEB. In the ARBA Medical Reviewer’s opinion, the Army did apply the VASRD principles appropriately, and the exam findings near the time of separation did support the 10% rating under discharge codes 5285 and 5295. c. The applicant presented the conditions listed below as other medical injuries and conditions not evaluated upon discharge from military. The ARBA Medical Reviewer retrieved the last 2 conditions from the applicant’s record as noted. (1) Bilateral Knee Arthralgia: 22Jul1994 Physical Therapy note indicated he had left knee about 6 years prior sliding into base. Diagnosis: MCL Sprain. 06Jun1996 he was seen for right knee pain and bilateral ankles for 5 days. The 20Jun1996 Physical Therapy BAMC exam showed full ROM. The 01Nov1996 MRI showed a tear in the midsubstance of the medial meniscus. The MEB exam showed lower leg full active ROM to include the knee exam. His gait was normal. (2) Otitis Media: 05Feb1992 visit for follow up of flu symptoms. His tympanic membranes were bulging due to fluid build-up. 24Jun1996 left ear infection, was treated. MEB NARSUM notes indicated that he had a normal ear exam and a normal auditory exam. (3) Bronchitis/Asthma: 05Feb1992 visit for follow up of flu symptoms documented wheezing in the left lung. He was seen 24Sep1995 in Emergency Care & Treatment for 1 day history of cough, chest pain with coughing, and again wheezing was heard. The 06Apr1996 BAMC Emergency Care and Treatment note, revealed he was taking Primatine Mist one puff daily. There were no hospitalizations for Asthma. The MEB physical exam showed clear lungs. No PFTs were available for review. (4) Left Shoulder Rotator Cuff Tear; Right Shoulder/Right AC Joint injured loss of range of motion: 05Jan1993 Emergency Care & Treatment Reynolds Army Hospital showed he injured the right shoulder playing basketball. There was tenderness over the AC joint and distal third of the clavicle. There was decreased ROM due to pain. X-ray was negative. In the 06Apr1996 note he complained of left shoulder pain after the MVA. MEB exam showed bilateral upper extremity with full active ROM in the shoulders and elbows. (5) Ruptured Achilles Tendon/Achilles Tendonitis; Bilateral Ankle Injuries Sprains: He was seen for bilateral ankle pain without specific injury in June 1996. He was referred for physical therapy. The right ankle improved by 3 weeks (20Jun1996 Physical Therapy BAMC). The left ankle had not. The left ankle showed decreased dorsiflexion by 25% secondary to posterior pain (35 degrees instead of 45 degrees). Per AR 40-501 ankle dorsiflexion to 10 degrees or less, fails retention standards. 19Aug1996 he had bilateral knee arthralgias which were not evaluated on that date. The MEB exam showed lower leg full active ROM to include the ankles. His gait was normal. (6) Heart trouble; high blood pressure: In the 10Apr1997 Report of Medical History, the heart exam was normal. The chest x-ray was normal—did not reveal any abnormality such as heart enlargement. (7) Skin problems: The applicant reported skin problems on the Back Questionnaire. The MEB exam indicated the skin was intact and without deformities. d. The applicant’s spine condition was initially undiagnosed, but the condition was subsequently thoroughly evaluated and treated by multiple specialists at two different Army facilities. The lumbar condition was reviewed, assessed and documented in MEB Proceedings. And finally, the PEB evaluated the condition and completed their fitness determination. Per regulation, the PEB applied the rating consistent with the severity of the condition at the time of separation and applied a 10% rating under VASRD code 5285 5295. After a thorough review of the applicant’s medical records and VASRD that was applicable at the time, as well as AR 635-40, the ARBA Medical Reviewer found no error. Of note, the 27Jan2005 VA Rating Decision showing service connection for Residuals, Fracture, L3, with L3 Pars Spondylolysis and L3-4 Spondylolisthesis, granted a 10% evaluation effective 10Oct1997. Per VA notes, the back condition was evaluated at 10% for slightly limited motion of the lumbar spine, or demonstrable deformity of a vertebral body from fracture with muscle spasm or limited motion. e. MEB Proceedings showed only L3 pars spondylolysis and L3-4 grade I spondylolisthesis as not meeting retention standards. Per the applicant’s request, other conditions were reviewed as above in paragraph 4, and evidence did not support that any failed medical retention standards at the time of separation from service. f. Recommendation: No change to the PEB proceedings. BOARD DISCUSSION: 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, regulatory guidance and medical advisory were carefully considered. Based on the preponderance of documentation available for review, the Board found that the applicant was properly afforded evaluation by medical evaluation boards and concurred with medical advisory in that evidence does not support that he failed medical retention standards at the time of his separation from service. 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 for correction of the records of the individual concerned. 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. 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. 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. Title 38, Code of Federal Regulations (CFR), Part 4, Schedule for Rating Disabilities, provides guidance on the VASRD, which 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. a. VASRD code 5285, as in effect at the time, was used for the spine, vertebral fracture of, residuals. A rating of 10 percent was assigned to cases in accordance with definite limited motion or muscle spasm. The next level of rating is 60 percent, for a vertebral fracture without cord involvement and abnormal mobility requiring a neck brace. b. VASRD code 5295, as in effect at the time, was used for lumbosacral strain. A rating of 10 percent was assigned for lumbosacral strain with characteristic pain on motion. The next level of rating was 10 percent, with muscle spasm on extreme forward bending and loss of lateral spine motion, unilateral, in standing position. 5. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000322 26 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1