RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 September 2005
      DOCKET NUMBER:   AR20050000108


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Edmund P. Mercanti            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Leonard G. Hassell            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his disability rating be increased from 10
percent to at least 30 percent.

2.  The applicant states that when he was rated at 10 percent disabled by
his informal Physical Evaluation Board (PEB), he requested a formal
hearing.  The formal PEB changed the Veterans Administration Schedule for
Rating Disabilities (VASRD) code assigned by the informal PEB for his back
pain from chronic cervical pain with muscular spasm and radicular pain to
upper extremities due to multilevel degenerative disc disease without motor
or reflex changes characteristic of radiculopathy (service aggravated), to
chronic myofascial pain in the neck and upper back with radiculitis to
upper extremities, but no motor/reflex changes consistent with
radiculopathy.  The formal PEB rated this condition as 10 percent
disabling.  The formal PEB also rated the applicant 20 percent disabled due
to urinary incontinence secondary to detrusor instability, rated as
analogous to chronic cystitis.

3. The applicant stated that although he believed that he should have
received a higher rating for his back pain, he concurred with the formal
PEB because the 30 percent combined rating was sufficient to authorize him
to be placed on the retired list due to physical unfitness.

4.  Subsequent to his concurrence, the formal PEB reconvened without him
being notified.  The reconvened PEB determined that he should not have been
rated for urinary incontinence because it wasn’t unfitting, and amended its
proceedings to delete his 20 percent rating for this condition.

5.  He unsuccessfully appealed that decision to the formal PEB.  He then
unsuccessfully appealed that decision to the U.S. Army Physical Disability
Agency (USAPDA).

6.  The applicant contends that pain that hinders a person’s ability to
perform even the most mundane daily tasks and causes major sleep
disturbances is not a 10 percent rating in accordance with 38 Code of
Federal Regulations (CFR).  The applicant cites many paragraphs out of 38
CFR and explains how he believes that his disability ratings were not made
within the requirements of those paragraphs.  The applicant adds that the
rating for his back should not have been fettered by flexion measurements
alone due to the nuisances and complexities of his condition.

7.  The applicant argues that the formal PEB erred when it determined that
he should not have been rated for urinary incontinence.  He cites the
regulation which establishes medical retention standards and argues that
his urinary incontinence did not meet those standards.  He also cites
Department of Defense Directive (DODD) 1332.39 which states that conditions
that do not themselves render a service member unfit for military service
will not be considered for determining the compensable disability rating
unless they contribute to the finding of unfitness.  Since his urinary
incontinence is a direct result of his back and neck pain, he should have
been rated for this condition in accordance with the DODD.  The applicant
adds that urinary incontinence is ratable separately under the VASRD.

8.  The applicant adds that there are no provisions for the PEB to
reconsider its findings by reconvening.  Such a practice robs a Soldier of
due process rights, and would result in the PEB being given “a degree of
whimsical power that would empower them to capriciously oscillate between
varying sets of findings and minimalize the subject’s vital role in the
proceedings.”

9.  The applicant provides his Medical Evaluation Board (MEB) and PEB
proceedings along with allied documents; a report from Cherry Hill Pain and
Rehab Institute along with allied documents; three documents from NovaCare
Rehabilitation; and one document from MRI Diagnostic Center.

CONSIDERATION OF EVIDENCE:

1.  On 14 May 2003 the applicant, a Reservist in pay grade E-7 who had been
mobilized in support of Operation Iraqi Freedom, jumped through a window
and landed in a hole during mountain training at Fort Ord, California.  He
went on sick call complaining of headaches, and was initially diagnosed as
having a muscle spasm.  He was later diagnosed with chronic neck injury.
An MRI of his neck showed multilevel degenerative disk disease.  He was
then sent to a spine specialist who diagnosed the applicant with cervical
pain secondary to spondylosis and myofascial pain.

2.  On 11 February 2004, the applicant was examined for an MEB.  The MEB
determined that the applicant failed to meet retention standards due to
chronic neck and upper back pain with radiculopathy, but met the medical
retention standards for detrusor instability and prostatic obstruction.
There is no evidence or indication that the applicant disagreed with the
MEB’s findings or recommendation.

3.  On 7 March 2004, an informal PEB convened and determined that the
applicant was physically unfit due to chronic cervical pain with muscular
spasm and radicular pain to upper extremities due to multilevel
degenerative disc disease without motor or reflex changes characteristic of
radiculopathy.  The formal PEB added that there was underlying degenerative
disc and joint disease which existed prior to service, but that condition
had been service aggravated.  The applicant did not concur with those
findings and recommendation and demanded a formal hearing.

4.  On 6 April 2004, an MEB addendum was prepared.  In that addendum the
applicant’s treatment for urinary incontinence was chronicled.  However,
the physician who prepared this addendum deferred an examination to a
urologist.  However, the physician stated that “this Soldier has the
following diagnoses, which do not cause him to fall below retention
standards.  1.  Detrusor instability. 2.  Prostatic obstruction.”

5.  On 15 April 2004, a formal PEB was convened which determined that the
applicant was physically unfit due to chronic myofascial pain in the neck
and upper back with radiculitis to upper extremities, but no motor/reflex
changes consistent with radiculopathy, rated 10 percent disabling, and
urinary incontinence secondary to detrusor instability, rated as analogous
to chronic cystitis, rated 20 percent disabling, for a combined rating of
30 percent.  The formal PEB recommended that the applicant be place on the
Temporary Disability Retired List (TDRL).  The applicant concurred with the
formal PEB’s findings and recommendation.

6.  On 15 June 2004, the formal PEB reconsidered its previous findings and
recommendation.  In that reconsideration, the formal PEB deleted the
applicant’s rating for urinary incontinence, stating that it was not
physically unfitting.

7.  The applicant was provided a copy of the reconsidered formal PEB’s
findings and recommendation.  He did not concur and submitted an appeal
(the applicant did not provide a copy of his appeal).  The formal PEB
denied the applicant’s appeal, stating that “The Board cannot rate you[r]
urinary incontinence in that it did not fail retention standards, was not
on your physical profile, and was not unfitting.”  The formal PEB then
added “The Board strongly recommends you submit a request for Continuation
in Active Reserve (COAR), as you are within a few months of eligibility for
a reserve component twenty year retirement.  Soldiers eligible for a twenty
year reserve retirement, with disability ratings of 20% or less, may choose
to take that retirement at age 60 in lieu of severance pay.  The Board
would favorably endorse a COAR request.”  The formal PEB then gave the
applicant 5 days to submit a request for COAR.
8.  On 13 July 2004, the USAPDA denied the applicant’s appeal.  In that
denial the USAPDA stated that “your case was properly adjudicated by the
PEB which correctly applied the rules that govern the Physical Disability
Evaluation System in making its determination.”  The USAPDA then affirmed
the formal PEB’s findings and recommendation.

9.  The final disposition of the applicant’s military status is not shown
either in his military records or the documentation that he submitted with
his application.  However, the applicant stated in his request that he was
separated from active duty on 24 August 2004 and presently has no military
status.

10.  Cystitis is an infection that can happen anywhere along the urinary
tract, the kidneys, the ureters (the tubes that take urine from each kidney
to the bladder), the bladder, or the urethra (the tube that empties urine
from the bladder to the outside).  Cystitis is a common condition usually
caused by a bacteria from the anus entering the urethra and then the
bladder.  This leads to inflammation and infection in the lower urinary
tract (MEDLINE PLUS).

11.  Radiculopathy is any pathological condition of the nerve roots
(MEDLINE PLUS).

12.  Detrusor instability is also known as urge incontinence which involves
a strong, sudden need to urinate immediately followed by a bladder
contraction, resulting in an involuntary loss of urine.  Urge incontinence
is basically a storage problem in which the bladder muscle contracts
inappropriately.  Often these contractions occur regardless of the amount
of urine that is in the bladder.  Urge incontinence may result from
neurological injuries (such as spinal cord injury or stroke), neurological
diseases (such as multiple sclerosis), infection, bladder cancer, bladder
stones, bladder inflammation, or bladder outlet obstruction.  The majority
of cases are classified as idiopathic - a specific cause cannot be
identified (MEDLINE PLUS).

13.  The DODD, paragraph 1332.39, establishes the Department of Veterans
Affairs’ (DVA) VASRD as the standard for assigning disability percentage
ratings.  The percentage ratings represent, as far as can practicably be
determined, the average impairment in civilian occupational earning
capacity resulting from certain diseases and injuries, and their residual
conditions.  However, not all the general policy provisions of the VASRD
are applicable to the Military Departments.  Many of these policies were
written primarily for DVA rating boards, and are intended to provide
guidance under laws and policies applicable only to the DVA.

14.  Army Regulation 635-40 provides that the medical treatment facility
commander with the primary care responsibility will evaluate those referred
to him and will, if it appears as though the member is not medically
qualified to perform duty or fails to meet retention criteria, refer the
member to a MEB.  Those members who do not meet medical retention standards
will be referred to a PEB for a determination of whether they are able to
perform the duties of their grade and military specialty with the medically
disqualifying condition.

15.  Army Regulation 635-40 also states that the mere presence of an
impairment does not, of itself, justify a finding of unfitness because of
physical disability.  The overall effect of all disabilities present in an
individual whose physical fitness is under evaluation must be considered
both from the standpoint of how the disabilities affect the individual’s
performance, and requirements which may be imposed on the Army to maintain
and protect him during future duty assignments.  All relevant evidence must
be considered in evaluating the fitness of a member.  When a member is
referred for physical evaluation, evaluations of his performance of duty by
his supervisors may provide better evidence than a clinical estimate by a
physician of the member’s physical ability to perform the duties of his
office, grade, rank, or rating until the time he was referred for physical
evaluation.  Thus, if evidence establishes that the member adequately
performed the normal duties of his office, grade, rank or rating until the
time he was referred for physical evaluation, he might be considered fit
for duty, even though medical evidence indicates his physical ability to
perform such duties may be questionable.

16.  Army Regulation 635-40, paragraph 4-21r, states that the PEB may
change, modify, or correct its findings and recommendations at any time
before the record of proceedings is delivered to the Commanding General,
USAPDA or the Commander, Human Resources Command, Alexandria.  When such
changes are made in previously announced findings or recommendations, the
PEB will inform the Soldier (Soldier's next-of-kin, counsel, or legal
guardian) in writing, of the proposed change.  The PEB will afford the
Soldier the opportunity to accept or rebut the proposed change.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s argument that he should have been rated for urinary
incontinence because he met the criteria outlined in the regulation which
establishes medical retention standards is not accepted.  The applicant’s
MEB specifically stated that he met the medical retention standards for
detrusor instability and prostatic obstruction, and there is no evidence or
indication that the applicant disagreed with the MEB’s findings or
recommendation.  If the applicant believed that those conditions were
medically disqualifying, he was required to contest the MEB at that time.

2.  Also, the MEB addendum specifically stated that the applicant’s
detrusor instability and prostatic obstruction did not cause him to fall
below retention standards.

3.  Soldiers are only rated for medically disqualifying conditions if they
are determined to be physically unfitting.  Even if the applicant’s urinary
incontinence did fail medical retention standards, without evidence that he
could not perform his duties due to that condition it would not be
considered physically unfitting.  The applicant’s records do not contain
any documentation which would indicate that a PEB would determine the
applicant’s urinary incontinence physically unfitting.

4.  The applicant’s argument that since his urinary incontinence was due to
his back pain, DODD 1332.39 requires that he be rated for the condition is
not accepted.  The formal PEB rated the applicant for myofascial pain, not
for a physical deformity of his back.  The first formal PEB also rated the
applicant for urinary incontinence due to cystitis, which is an infection
of the urinary tract.  There is no correlation between pain of an unknown
etiology and an infection of the urinary tract.

5.  The applicant’s argument that the second formal PEB is invalid since
there are no provisions to reconvene a PEB and since he was not given due
process is not accepted.  First, the formal PEB did not reconvene.  It
simply reconsidered its findings and recommendation.  Such reconsideration
is provided for in Army Regulation 635-40.  As for due process, the
applicant was provided a copy of the revised PEB proceedings, he submitted
an appeal to the new findings to the formal PEB, and when the formal PEB
denied his appeal the applicant appealed to the USAPDA.  This history would
certainly indicate that due process was provided to the applicant.

6.  In addition, the applicant has not submitted any evidence or argument
which would lead the Board to believe that a reconvened formal PEB would
have determined that the applicant was physically unfit due to urinary
incontinence.  As previously discussed, there is no documentation to show
that he could not perform his duties because of his urinary incontinence.

7.  The applicant’s reference to paragraphs from 38 CFR is noted.  However,
38 CFR governs the DVA, not the Army.  As such, the paragraphs referenced
by the applicant have no bearing in his case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___le ___  ____lgh__  ___pms _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            __________Lester Echols____________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050000108                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050929                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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