RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 February 2007
	DOCKET NUMBER:  AR20060004188 


	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.  



	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 discharge with severance pay, rated 20 percent disabled, be corrected to placement on the Temporary Disability Retired List (TDRL), rated at least 80 percent disabled.

2.  The applicant states that while making a parachute jump in high winds, his parachute didn’t open properly, resulting in him landing on his back and head.  He was knocked unconscious by the impact.  When he came to he rejoined his company.

3.  About a week and a half later, he began to experience excruciating pain in his lower back and tailbone area.  He was told he fractured his tailbone and was provided medication and time off to recuperate.  Immediately following that diagnosis and treatment he returned home on emergency leave.  By the time he arrived home his pain was so bad he went to a civilian hospital which diagnosed him with an infected pilonidal cyst.  He had that cyst removed at that time and later had a second pilonidal cyst surgically removed.

4.  The applicant details the medical treatment he received, the places he received that treatment, the worsening of his condition after surgery was performed on his back, and his experiences when being processed by the Physical Disability Evaluation System (PDES).

5.  The applicant states that since he is totally disabled, it is unfair that he was separated with severance pay.

6.  The applicant provides excerpts from his military personnel and medical records, a statement from his mother, and a telephone interview between him and his attorney.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that while serving on active duty in the Regular Army in pay grade E-4, the applicant sustained a tailbone injury as a result of an airborne jump on 10 September 2002.  That injury was approved as having been incurred in line of duty.

2.  On 17 July 2003, a specialty care consult was conducted on the applicant in preparation for his Medical Evaluation Board (MEBD).  In that consult it was noted that the applicant reported that he couldn’t walk any distance; he had 
difficulty with bending over, tying his shoes and pulling up his pants; and he had difficulty going to the toilet.  He could only lie on his side and couldn’t sit at all.  The physician diagnosed him with sacral and coccygeal spine pain.

3.  On 24 July 2003, a neuropsychological assessment was performed on the applicant.  In that evaluation the neurophysiologist stated that “Our evaluation suggests that this patient has a high level of somatic [affecting the entire body] focus in reaction to his medical condition.  It is unclear if there is a conscious process of embellishment.  It appears more likely that patient’s symptoms are consistent with a somatoform [pain disorder is persistent and chronic pain at one or more sites in which psychological factors are thought to play a role] type process, which may be unconscious.  The patient has likely become invested in the sick role and the attention that it brings him.”  The neurophysiologist diagnosed the applicant with pain disorder associated with both psychological factors and a general medical condition, adjustment disorder with depressed mood, and dependent personality traits.  The neurophysiologist concluded that from a psychiatric/psychological standpoint, the applicant does not appear capable of serving within the military.

4.  On 30 July 2003, an MEBD Narrative Summary (NARSUM) was dictated.  In that NARSUM it was stated that “The patient was seen in consultation by the Anesthesia Pain Service, the Orthopaedic Service, and the Neurology Service.  None of these specialists found any significant physical findings.”  The NARSUM also referenced the applicant’s neuropsychological evaluation.  The NARSUM diagnosis was coccydynia with marked and constant pain, decubitus ulcer, grade 3 (non-disqualifying), pain disorder associated with both psychological factors and a general medical condition, and adjustment disorder with depressed mood (non-disqualifying).

5.  In another specialty care consult, the history of the applicant’s pilonidal cyst was outlined.  The impression given by the physician conducting the consult was the applicant had chronic pain after his pilonidal cyst excision.  “There is no evidence of any neuropathic injury that would explain his pain.  It is possible that the pain is secondary to local inflammation and or damage.”

6.  On 5 August 2003, an MEBD was held which determined that the applicant had pain disorder with psychological factors (not disqualifying), dependent personality traits (not disqualifying), and decubitus ulcer, grade 3 (not disqualifying).  The applicant disagreed with the MEBD’s findings.


7.  On 3 September 2003, a Physical Evaluation Board (PEB) was held which found the applicant to be physically unfit due to coccydynia with pain that is marked and constant, and recommended that he be discharged with severance pay, rated 20 percent disabled.  The PEB determined that the other MEBD diagnoses were not unfitting and, therefore, not ratable.

8.  The applicant did not concur with the PEB’s findings and recommendation and demanded a formal hearing.  On 29 October 2003, the applicant withdrew his request for a formal hearing and submitted a written appeal to the original PEB.

9.  The applicant’s civilian counsel prepared an appeal on the applicant’s behalf.  In that appeal counsel referenced Department of Defense Instructions (DODIs), Department of Defense Directives (DODDs), Army Regulations, and Title 38, Code of Federal Regulations.  Counsel chronicles the history of the applicant’s case.  Counsel argued that the preponderance of evidence shows that the applicant is totally disabled and, therefore, should be assigned a rating of 100 percent disabled.  In the alternative, the applicant should be rated at least 40 percent disabled for severe limitation of motion.

10.  On 3 November 2003, the applicant was notified that since his rebuttal contained no new substantive medical information, the PEB affirmed his decision that he should be separated with severance pay, rated 20 percent disabled.

11.  On 12 November 2003, the US Army Physical Disability Agency (USAPDA) determined that the applicant’s case was properly adjudicated by the PEB which correctly applied the rules that govern the PDES in making its determination.  The USAPDA affirmed the PEB’s findings and recommendation.

12.  Accordingly, on 15 February 2004, the applicant was honorably discharged by reason of physical unfitness with severance pay.

13.  A Pilonidal dimple is a small pit or sinus in the sacral area at the very top of the crease between the buttocks.  The majority of pilonidal dimples are harmless, congenital anomalies that consist of a small depression or pit.  There may be increased hairiness around the area.  The pilonidal dimple may also be a deep tract, rather than a shallow depression, leading to a sinus that may contain hair.  These can become infected and drain.  On rare occasions, the sinus may extend into the spinal cord.  During adolescence, the pilonidal dimple or tract may become infected, forming a cyst-like structure called a pilonidal cyst.  These may require surgical drainage or total excision to prevent reinfection.

14.  Coccyx injury is a tailbone trauma which is an injury to the small bone at the lower tip of the spine.  Actual fractures of the tailbone (coccyx) are infrequent.  Tailbone trauma usually involves bruising of the bone or pulling of the ligaments. Backward falls onto a hard surface, such as a slippery floor or ice, are the most common cause of this injury.  (MEDLINE PLUS)

15.  Army Regulation 635-40 provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual is rated at least 30 percent disabled, the physical disability is not stable, and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. 

16.  Army Regulation 635-40, Appendix B, Army Application of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), paragraph B-24, VASRD Code 5003, Arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis, provides that inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.  A maximum 20 percent rating by analogy to degenerative arthritis may be awarded as an exception in unusual cases, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.  To do otherwise would be to combine pain ratings so as to achieve a percentage of disability that would result in erroneous disability retirement.  (Severe eye pain is an exception).    

17.  Army Regulation 635-40, Appendix B, paragraph B-29 5200-5295-Rating Involving Joint Motion, states in pertinent part that ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found.  Muscle contractures and arthritic degeneration of bone are examples of a mechanical limitation of motion.  Contrariwise, joint pain resulting in loss of motion does not constitute a mechanical basis for restricted motion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was provided numerous specialty evaluations which all concluded that there was nothing physically wrong with him which would be medically disqualifying.

2.  While no physical reason for the applicant’s pain could be determined, the applicant’s PEB gave him the maximum allowable rating for pain.
3.  In a rebuttal to the PEB, the applicant’s civilian counsel argued that he should be rated at least 40 percent disabled for limitation of motion.  In this regard, the PEB couldn’t rate the applicant for limitation of motion because there was no mechanical basis for the limited motion.  Joint pain resulting in loss of motion does not constitute a mechanical basis for restricted motion.

4.  Without a diagnosed condition which was determined medically disqualifying, there is no basis for increasing the applicant’s 20 percent disability rating.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XXX___  ____XXX_  ___XXX___  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.





__________XXXXXXXXX_________
          CHAIRPERSON




INDEX

CASE ID
AR20060004188
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070201
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.