Unfitting Conditions and Request for PEB to Amend the DA 199 Informal Rating Decision
Based on our 35 year old client’s completion of Basic Training, despite her significant injuries, we submitted to the PEB in an informal reconsideration that the objective credible evidence clearly supported that her spinal cord injury caused her diagnoses of Spondylolisthesis and Spondylolysis, with the benefit of a civilian MRI. These spinal cord defects continued to cause debilitating pain, limited strength and guarded movements since her 2020 Basic Training original injuries. Our client did not suffer from spondylosis.
The PEB insisted on a formal board.
According to the expert who we recommended, , our client had a poor prognosis for improvement, this was a permanent injury and without surgical intervention, not advised at this time, these injuries would not improve.
The physical limitations were thoroughly reviewed and linked together in the expert’s original report. Here were our successful arguments:
Therefore, on the DA 3947 Diagnosis 1, continues to be unfitting for her Left Femoral Acetabular Impingement Syndrome and includes “labral tears” and also painful Chondromalacia.
Diagnosis 2, Lumbar Spine Degenerative Disc Disease, claimed as a low back condition, as set forth on the DA 3947 is unfitting based on repeated and almost constant episodes of pain and discomfort even after repeated attempts at therapy. As the expert opined, Spondylolisthesis is the main culprit for the left hip problems, lumbar pain and right lower sciatica and not Spondylosis or Degenerative Disc Disease.
A few short months ago, a CT scan confirmed that the same conditions evident in the 2021 MRI persist.
Diagnosis 3, Intervertebral Disc Syndrome, claimed as Right Leg Sciatica, as set forth on the DA 3947, is also unfitting based on repeated and almost constant episodes of pain and discomfort even after repeated attempts at therapy and self-care and conservative treatment as our client will testify and the medical records corroborate.
She was properly assigned a L3 profile (DA 3349 or what Navy and Marines call Limited Duty or LIMDU) which included “no running, jumping or Military Movement Drills.”
The spinal cord defect, pursuant to AR 40-501, para. 3-20(c), articulates that Client has medically unacceptable spondylolisthesis, which requires “more than one episode of symptoms resulting in repeated outpatient visits.”
VA ratings are not controlling but are evidence to the PEB’s decision. The VA Rating Decision concluded the following:
Service connection for lumbar radiculopathy, right lower extremity, involving the sciatic nerve is granted with an evaluation of 10%.
Overall or Combined Effect
Although we submit that each of the foregoing conditions is unfitting, standing on its own, arguing in the alternative, AR 635-40, para. 5–4, describes that the reasonable performance of duties is determined “whether a Soldier’s medical impairments preclude the Soldier from reasonably performing their duties” and a significant consideration is in paragraph “g:”
Overall or combined effect. A Soldier may be determined unfit as a result of the overall effect of two or more impairments even though each of them, standing alone, would not cause the Soldier to be found unfit because of physical disability. Further, unfitness due to overall or combined effect may include one or more conditions determined to be unfitting in combination with an independently unfitting condition.
