RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 January 2006
	DOCKET NUMBER:  AR20050001387 


	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

Ms. Rosa M. Chandler

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Rodney E. Barber

Member

Ms. Rea M. Nuppenau

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, in effect, that his separation for disability with severance pay be voided and that he be granted a disability retirement due to his medical condition.

2.  The applicant states no further contentions.

3.  The applicant provides:

a.  DA Form 199 (Physical Evaluation Board (PEB) Proceedings).

b.  Memoranda, Brooke Army Medical Center (BAMC), Fort Sam Houston, Texas, dated 10 September 2003 and 21 October 2003.

c.  Letter Orders, United States (US) Army Physical Disability Agency, Washington DC, dated 2 November 2002.

d.  BAMC, Pain Control Clinic medical records, dated between
25 February 2002 and 1 December 2003.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Board review the evidence and make a determination concerning the applicant's medical rating that reflects sound judgment consistent with its policy.  

2.  Counsel states, in effect, that:

a.  On 26 February 2002, the applicant was placed on the temporary disabled retired list (TDRL) due to chronic low back pain and recurrent instability of the right shoulder.  He was rated in accordance with diagnostic codes 5210 and 5295, and that at the same time his Medical Evaluation Board (MEB) showed shoulder abduction was limited to 70 degrees and that he had a history of recurrent dislocations, weakness and instability.

b.  On 5 June 2003, a BAMC examination indicates the applicant had a loss of motion in forward flexion, abduction internal and external rotation, and a 5/5 strength of both deltoid and right rotor cuff.  It was also determined that he had a full range of motion with no tenderness or focal deformity on the lower back.  He was provided a diagnosis of chronic right shoulder pain and low back pain.  The examination provided no radiographic evidence and failed to outline the large amounts of narcotic medications being prescribed.
	c.  A BAMC addendum, dated 1 December 2003, shows the applicant suffered with continued low back pain, right shoulder pain and chronic dislocations that occurred one or two times a month in which he was forced to seek medical attention.  He also described to have fleeting numbness to the right posterior, arm and neck with chronic instability.  His forward flexion was limited to 65 degrees from the thoracolumbar spine.

	d.  During the formal PEB hearing, in a sworn testament, the applicant indicated, he had been consuming 5 milligram tablets of Oxycintin, two to four times a day; 25 milligram tablets of Methadone daily; Fentanyl lollipops, one or two times a day; and 25 milligrams of Amitriptyline at night.  These medications only dulled the pain and provided little to no relief of the functional limitations placed on the applicant.  Due to recurrent dislocation of the right shoulder, it was essential that he constantly guarded his arm from all movement that required strength or manipulation.

	e.  The PEB revised their prior determination and awarded the applicant two separate evaluations under diagnostic codes 5099-5003 and 5299-5237.  The DA Form 199 was also revised to include the provisions outlined in Army Regulation 635-40, B-24(f), which restricts the maximum rating for pain to 20 percent disabling.

	f.  The applicant has undergone five surgical procedures and has documented range of motion deficiencies.  The VA believes the applicant's pain is a residual of the dislocation and instability; therefore, under current law his condition would more likely be rated under the criteria annotated in 38 Code of Federal Regulations (CFR), part 4 under the diagnostic code 5202.  Under these guidelines, when a major extremity is effected with symptoms of recurrent dislocation at the scapulohumeral joint and regarding arm movements a 
30 percent disability rating is warranted.  

	g.  When the circumstances are such that two percentage evaluations could be applied, the higher percentage should be assigned if the service member's disability more nearly approximates the criteria for that rating.  When, there is reasonable doubt the issue should be resolved in favor of the Soldier.

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  On 25 January 1995, the applicant enlisted in the Regular Army and served continuously until he was separated for retirement on 12 April 2002, due to "disability, temporary."  On 13 April 2002, he was placed on the retired list.  He served in military occupational specialty (MOS) 95B, Military Police.  

2.  On 23 October 2003, the applicant underwent a PEB, due to:

a.  "CHRONIC PAIN, RIGHT SHOULDER, STATUS POSITIVE OPERATIVE PROCEDURES.  ABDUCTS TO 140 DEGREES.  RATED AS MODERATE/FREQUENT.  (TDRL EVAL DIAG 1, NARSUM, AND MEDICATION PROFILE)."  

	b.  "CHRONIC LOW BACK PAIN, WITHOUT NEUROLOGIC ABNORMALITY.  FORWARD FLEXION TO 90 DEGREES WITH LOCALIZED TENDERNESS (TDRL EVAL DIAG 2 AND NARSUM)."

	c.  He was rated in accordance with the US Army Physical Disability Agency Policy/Guidance Memorandum #13, dated 8 April 2002, subject:  Rating Pain.  His disabilities are coded as VA Code 5099-5003 and VA Code 
5299-5237. 

d.  Based on a review of a TDRL examination, the PEB found the applicant remained unfit to reasonably perform the duties required by his previous grade and MOS and recommended a combined rating of 10 percent.  His condition was also considered sufficient and stable for final adjudication.  The PEB recommended separation with severance pay, if otherwise qualified.  

3.  On 3 November 2003, the applicant acknowledged that he had been advised of the PEB's findings and recommendations and stated that he did not concur.  He also requested a formal hearing.

4.  On 10 December 2003, the applicant appeared before the formal PEB with his Disabled American Veterans (DAV) representative (counsel).  The PEB determined that:

a. The applicant suffered from "CHRONIC PAIN, RIGHT SHOULDER, STATUS POST FIVE OPERATIVE PROCEDURES.  ABDUCTS TO 140 DEGREES.  RATED AS MODERATE/FREQUENT.  (TDRL EVAL DIAG 1, NARSUM, AND SWORN TESTIMONY)."  
	b.  "CHRONIC LOW BACK PAIN, SUBJECTIVE, WITHOUT NEUROLOGIC ABNORMALITY, WITH LIMITED MOTION, DUE TO PAIN.  (TDRL EVAL DIAG 2 EVALUEE EXHIBIT, AND SWORN TESTIMONY)." 

c.  He was rated in accordance with the previous guidelines and 
regulatory guidance contained in Army Regulation 635-40, paragraph B-24f, which restricts the maximum rating for pain—regardless of how many separate anatomical sites to 20 percent.  His VA Codes are also unchanged.  They are the same as those shown in paragraph 2c above.

d.  The applicant remained unfit to reasonably perform the duties required by his previous grade and MOS and recommended a combined rating of 
20 percent.  Again, his condition was considered sufficient and stable for final adjudication.  The PEB recommended separation with severance pay.  

5.  The applicant was advised of the boards findings and recommendations and on 16 December 2003, he indicated that he did not concur and provided a rebuttal statement written by his DAV representative making the same argument that was provided to this Board.  

6.  On 16 December 2003, the President of the PEB, in a memorandum, advised the applicant that his rebuttal had been given full consideration; that his case was correctly adjudicated in accordance with the Department of Defense guidelines and that no changes were warranted.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) provides the policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

8.  Title 38, United States Code, section 310 and 331, permits the VA to award compensation for a medical condition that was incurred or aggravated by active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had medically unfitting conditions at the time of separation, he received a combined rating of 20 percent, and he qualified for disability retirement (temporary).  

2.  The medical information provided by the applicant does not demonstrate that he was improperly rated or that his VA Codes are incorrect.  He was medically evaluated, the PEB was properly adjudicated and he was separated in accordance with the guidelines in effect at the time.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __reb___  __rmn___  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.




							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20050001387
SUFFIX

RECON

DATE BOARDED
20060112
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
20020412
DISCHARGE AUTHORITY
AR635-40
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.

3.

4.

5.

6.