RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060008074 


	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. Gerard W. Schwartz

Acting Director

Ms. Anita McKim-Spilker

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. John T. Meixell

Member

Mr. Roland J. Venable

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 her medical separation with severance pay be expunged from her record; that she be medically retired and placed on the Permanent Disability Retirement List; and that she receive back retirement pay from date of separation to the present.

2.  The applicant's statement is provided by her counsel below.

3.  The applicant provides counsel arguments and all associated documents, to include copies of her Medical Evaluation Board (MEB), Physical Evaluation Board (PEB), and supporting service medical records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the same remedy as the applicant, stated above.

2.  Counsel states, in effect:

	a.  The applicant underwent a posterior partial diskectomy at the C5-C6 level in January 1992 and the surgery was a failure.  In February 1992, she had an anterior cervical diskectomy done at the same location with fusion.  A bone graft from her right hip was used to fuse her neck.  In June 1992, another fusion was done at the C6-C7 level using a bone graft from her right hip.

	b.  Despite three fused vertebrae, the applicant continued to serve on active duty.  In 1998, the applicant sought treatment for pain associated with her neck injuries.  She suffered from constant muscle spasms and frequent headaches, as well as pain that radiated down her left arm from her neck.  

	c.  In November 2001, she underwent a 3-level side decompression.  The fusions from the earlier procedure were dissolving and the compression of nerves at the vertebral facet was causing pain, numbness, tingling and weakness in the applicant's left arm.  According to the applicant's counsel, the surgery did not cure the symptoms; however, the doctor stated there was nothing more that could be done.

	d.  Counsel contends the applicant returned to the doctor asking for any relief or treatment, and the doctor suggested a risky surgery involving replacement of her cervical spine with a titanium cage, but it would still not guarantee relief from pain.  

	e.  The applicant sought a second medical opinion.  This doctor recommended that medications be prescribed in lieu of surgery and that the Army ought to cease any further surgery and discharge the applicant with benefits.  Both doctors agreed that her neck condition was a disqualifying condition and that she should be medically separated.

	f.  The applicant's commander supported the decision for medical separation.  However, her counsel contends she was unfamiliar with the process of medical discharges and had no legal advice or legal counsel before or during the physical evaluation process.  She accepted the informal PEB's rating (10 percent) without a full understanding of its meaning and without proper counsel by her Physical Evaluation Board Liaison Officer (PEBLO); therefore, she was not acting with "informed consent." 

	g.  The medical evidence reveals that a 30 percent rating should have been awarded based on an EMG which revealed chronic left C6 radiculopathy and because the MEB fabricated facts in the Narrative Summary (NARSUM) indicating "full range of motion in her neck, however, this is, at times, limited by pain."  Multiple range of motion (ROM) examinations were done proximate in time to the NARSUM which show a different ROM.

	h.  Further, her pain was chronic and debilitating as reported by all observers except the author of the NARSUM.  She also had degenerative disc disease coupled with the fusion and diskectomy, and spasms upon palpation in the cervical region.  All this evidence warranted a 30 percent rating.  A separate rating of 20 percent for pain was warranted.  She had multiple conditions beyond the chronic pain.  

	i.  Although the Physical Disability Policy/Guidance Memorandum Number 13 addressing the rating of pain did not apply because it was not published until 2005, the rationale used in the memorandum is applicable in the applicant's case regarding rating her pain separately from her medical condition.  

	j.  Her doctor may well have been too invested in her case to objectively rate the applicant.  He should have recognized the potential conflict of interest and had another doctor do the NARSUM.  His NARSUM minimized the applicant's problems and failed to recognize the impact of the multiple failed procedures.  He painted a rosy and inaccurate picture of the applicant's actual condition for his own benefit.

	k.  The MEB is defective because it failed to identify and rate the applicant's visible surgical scars, anterior neck, and her lower back pain with degenerative changes at L1-L2 and degenerative change at T-10, T-11, and
T-12.  These conditions were incurred in the line of duty and are unfitting.  

3.  Counsel provides copies of the applicant's MEB, PEB, and supporting service medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a major in the Regular Army at the time of her discharge.  She served on active duty from 21 March 1991 through 8 August 2003, for a period of 12 years, 4 months, and 18 days.  She was discharged under the provisions of Army Regulation 635-200 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of physical disability, with a severance pay of $124,833.60.

2.  The applicant underwent an MEB on 23 January 2003 at Walter Reed Army Medical Center (WRAMC), Washington, D.C.  The MEB found her unfit due to radiculopathy associated with herniated nucleus pulposis (HNP), multi-level, cervical, and pain, refractory, associated with her medical diagnosis.  The NARSUM indicated the applicant had reasonable relief from her surgeries, but had progressive pain, which increased until posterior laminotomies and forminotomies were performed at C4-5, C5-6, and C6-7 on the left.  Excellent nerve root decompression was obtained; however, the applicant had residual upper extremity pain and significant neck pain.  On physical examination, the surgical scars were well-healed; she had intact strength in her upper and lower extremities bilaterally; her deep tendon reflexes were within normal limits; and sensation was intact to light touch and pinprick.  She had full ROM in her neck; however, at times it was limited by pain.  Pertinent imaging data demonstrated good decompression of the neural exit foramina at sites of the previous surgery.  There was significant spinal deformity resulting in a mild to moderate superior kyphosis, associated with osteophyte disease, which was most prominent at the levels above the previous fusion.  Flexion/extension films showed no evidence of gross instability.  In accordance with the American Medical Association her pain was rated as slight, since it required frequent use of non-narcotic analgesies and only occasional narcotic analgesic use.  

3.  The NARSUM was prepared by the applicant's physician who indicated that although tremendous effort had been made, and was continuing, by both patient and her care providers, it was unlikely that the applicant would ever recover to a degree that was appropriate for continuation on unrestricted active duty.  She was referred to a PEB for evaluation for medical retirement.

4.  On 18 April 2003, the applicant concurred with the MEB findings.

5.  On 28 April 2003, an informal PEB was convened at Washington, D.C.  She was found unfit due to chronic neck pain, without any specific history of trauma/injury, for which she had multiple surgeries.  The PEB noted that the applicant complained of radicular pain, and that she used pain medications, rarely of the narcotic type.  The physical examination showed full ROM.  The examination noted that at times motion was limited by pain.  Muscle strength in the upper and lower limbs was 5/5 with normal sensation and deep tendon reflexes.  Radiographs were consistent with post surgical changes.  She was rated for pain in accordance with the Physical Disability Agency pain policy.  

6.  The PEB rated her disability as 10 percent disabling.  Since her HNP was surgically corrected, Department of Defense Instruction (DoDI) 1332.39, paragraph E2.A1.1.19.5, stipulated that her cervical pain be rated under VASRD Code 5099-5033, for pain.  The pain was rated as "slight" and "mild" pain.

7.  On 8 May 2003, the applicant concurred with the findings and recommendations of the informal PEB and waived her right to a formal hearing.  She authenticated the PEB Proceedings with her signature indicating that she had "received a full explanation of the results of the findings and recommendations and legal rights pertaining" to her case.  

8.  In processing this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA), Washington, D.C., which recommended denial of the applicant's request.  USAPDA found no errors or injustices regarding the applicant's separation from the Army due to physical disability.  It noted that the applicant's neck condition of HNP was surgically corrected leaving residuals of pain.  The pain was described as "mild" and "slight" in her MEB.  She complained of some spasms, but all objective physical neurological findings were considered normal.  The MEB diagnoses were "radiculopathy" and "pain," but the radiculopathy was actual pain in the arm.  There was no objective physical evidence of such radiculopathy.  Since the applicant's HNP was surgically corrected, DoDI 1332.39 instructed that her cervical pain be rated under VASRD Code 5033 (pain).  She could not be rated under limitation of motion as she had no ratable mechanical limitation documented and she could not be rated for radiculopathy as she had no documented objective physical neurological findings indicating a ratable nerve injury.  The September 2002 EMG results of radiculopathy of the left arm were not supported by any objective physical findings related to ROM, strength, or sensation.  It was essentially pain and she was rated for that accordingly.  There was no evidence that any spasms she may have complained of at the time were "chronic and evident on reported examinations."  Based on the above, she was properly rated at 10 percent for the "slight" and "mild" pain.  The applicant's MEB, profile, and commander's performance statement noted no problems with lower back pain or scars.  Such conditions, if they existed at the time of her separation, met medical retention standards and were not independently unfitting.  The applicant was an experienced field grade officer who was fully briefed and counseled regarding her MEB and PEB findings and she voluntarily concurred in all aspects.  She was not confused or misled regarding her disability processing rights and findings.  

9.  On 1 June 2006, the applicant made the following declaration:

	a.  After surgery in December 2001, she experienced unbearable pain.  Her physician informed her there was nothing more he could do to help her.  In October/November 2002, she discussed the option of an MEB with her doctor and he told her that he would author the NARSUM to send to the PEB.  He said that he would "by-pass" the MEB because he was at WRAMC and the MEB was not necessary and is usually only used as a preliminary screening for Soldiers outside the PEB area.  She did not understand the difference and relied on his counsel and assurance that his NARSUM was all she needed for the evaluation. The only question she asked him was whether or not she would be found fit for duty and required to return to full duty and find a way to live with the pain.  He told her there was no way she would be found fit for duty and that she would be medically discharged.  He did not discuss the process with her in great detail; only that the seriousness of her situation would most likely expedite the process and she would be discharged by March 2003.  At that point, she notified her chain of command so they could plan for a replacement and she began to prepare for transition.

	b.  She contacted the PEB at WRAMC in December 2002 or January 2003 to check on the status.  She was provided with the name of her counselor.  She called the counselor repeatedly in January 2003 regarding the process.  When she finally spoke to the counselor, she was informed of the documents that she needed to send to the PEB.  She was also advised to get a physical examination because it was required for discharge.

	c.  She expected the PEB to be finalized by March 2003.  Nobody advised her to get an attorney.  In March and April she became very anxious, worried, and stressed with the process because she did not know what was happening.  She contacted her doctor who prescribed Paxil to help her with the anxiety and depression associated with her ending career.  She was also dealing with constant pain.  By the time the PEB was complete, she was exhausted with the process and she needed resolution.

	d.  In May 2003, she and her husband went to WRAMC where her counselor read the PEB.  The counselor did not explain the findings.  All she said was that the applicant was being given severance pay.  She was devastated and in tears because she had lost her career, her pension, and benefits.  She did not know what to do or with whom to discuss her case.  The counselor pointed out that she had the right to appeal, but at that point, she was so upset and appealing sounded like another battle that she would lose just as she had lost the battle with pain and for her retirement.  She was not mentally or physically strong enough to fight a fight she knew nothing about, and “NEVER, NEVER, NEVER” (sic) did anybody suggest she retain an attorney.  She did not think that a medical issue was a legal issue.  She believed the medical professionals of the Army controlled the process and law was not a factor.  

	e.  She only met with her counselor to hand carry all the documentation for the evaluation packet and to have her PEB read to her.  She never had a discussion with anybody about her rights, whether she should have an attorney, a second opinion, or another physical.  An appeal did not seem like a viable option at the time and she did not understand what her counselor meant by an appeal.

10.  On 19 January 2007, the applicant was provided a copy of the advisory opinion for comment and rebuttal.

11.  On 18 February 2007, the applicant's counsel provided rebuttal arguments to the advisory opinion.  He stated that the applicant's treating physician wrote her NARSUM and he was conflicted by any definition.  He was involved in the bad outcome of the applicant's surgery, then minimized the result in the NARSUM he wrote.  This is a palpable conflict of interest which cannot be ignored by the Board.  The statement provided by the applicant on 1 June 2006 shows that her agreement with the informal PEB was not informed consent.  Further, it is patently ridiculous to ascribe a 10 percent rating to the residuals associated with multiple invasive procedures of the spine, none of which achieved their intended therapeutic result.  She has documented ROM limitations; that the NARSUM suggested otherwise is untrue, the product of the doctor's conflict.  She has chronic and debilitating pain as noted by all physicians except the conflicted physician who had reason to minimize his failed procedure.  The Board must not tolerate the manifest conflict of interest which existed in the applicant's case.  The NARSUM should be totally disregarded, and due to the lack of informed consent, relief should be granted.

12.  Army Regulation (AR) 635-40 establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18.  It 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 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.

13.  The objectives of the PDES system are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with chapter 3, AR 40-501, as evidenced in a medical evaluation board; receive a permanent medical profile and are referred by an MOS/Medical Retention Board; are command-referred for a fitness for duty medical examination; or are referred by the Commander, US Army Human Resources Command (HRC).  A service member is referred to an MEB by a unit commander or a physician when it is believed that he/she may possesses one or more medical conditions that cause him/her to fail to meet retention standards.  A service member does not "apply” or self-refer for evaluation by an MEB.

	a.  Soldiers enter the PDES under the presumption they are physically fit. This is known as the Presumption of Fitness Rule which states a Soldier is presumed fit because of continued performance of military duty up to the point of separation for reasons other than physical disability.  The philosophy behind the rule is that military disability compensation is for career interruption, compensation for service-incurred conditions.

	b.  Application of the Presumption of Fitness Rule does not mandate a finding of unfit.  The presumption is overcome if the preponderance of evidence establishes the Soldier, because of disability, was physically unable to perform adequately the duties of his/her office, grade, rank or rating.  This circumstance is aimed at long-term conditions.  It may also be overcome if acute, grave illness or injury, or other deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty.  Future duty is a factor in this circumstance.

	c.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to the PEB.  The PEB is required by law to determine the physical disability rating using the Veterans Schedule for Rating Disabilities (VASRD).  Three factors determine disability disposition: the rating percentage, the stability of the disabling condition, and total years of active Federal service. For service-incurred or aggravated conditions not involving misconduct, the dispositions are:  (1) Permanent disability retirement occurs if the condition is permanent and stable and rated at a minimum of 30 percent or the Soldier has 20 years active Federal service; (2) Temporary disability retirement occurs if the Soldier is entitled to permanent disability retirement except that the disability is not stable for rating purposes.  However, stability does not include latent impairment, that is what might happen in the future.  If placed on the TDRL, the Soldier is required to undergo a periodic medical reexamination within 
18 months, followed by another PEB evaluation.  The Soldier may be retained on the TDRL or final determination made.  While the law provides for a maximum tenure on the TDRL of 5 years, there is no entitlement to be retained for the entire period.

	d.  The PEB initially conducts an informal adjudication.  This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the PEBLO for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the US Army Physical Disability Agency (USAPDA) to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

14.  Army Regulation 635-40 also prescribes the function of the TDRL.  The TDRL is used in the nature of a “pending list.”  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. A Soldier's name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement but for the fact his or her disability is determined not to be of a permanent nature and stable.  
15.  DoDI 1332.39 implements policy, assigns responsibilities, and prescribes procedures for rating disabilities of Soldiers determined to be physically unfit and who are eligible for disability separation or retirement.  Paragraph E2.A1.1.19.5, stipulates, in pertinent part, that residual cervical pain with radiculopathy, status post excision of a herniated disc will be rated for the pain or limitation of motion and for the radiculopathy under the appropriate 8500 series code.  The 8500 series covers disease of the peripheral nerves.  Limitation of motion not of a sufficient degree to rate under the 5200 series (rating involving joint motion), will de rated under VASRD code 5003.  This regulation also stipulates that VASRD Code 5003, arthritis, degenerative, hypertrophic, and pain conditions rated by analogy to generative arthritis.

16.  Diagnostic code numbers appearing opposite the listed ratable disabilities in the VASRD are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis by the VA, and extend from
5000 to a possible 9999.  When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built up."  The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions.

17.  U.S. Army Physical Disability Agency Policy/Guidance Memorandum Number 13, dated 28 February 2005, provides guidance for rating unfitting conditions that are manifested with pain with and without supportable medical findings for rating an underlying condition.  It stipulates, in relevant part, that pain is rated by intensity and frequency of pain.  Intensity (severity) of pain is rated as minimal, slight, moderate or marked.  Frequency of pain is rated as intermittent, occasional, frequent or constant.  When there is evidence of an underlying medical condition that is manifested by more than just pain, the underlying impairment should be rated.  Examples are fibromyalgia, osteoarthritis, bursitis, ligament tear, muscle tear, or previous muscle or bone injury.  A Soldier's total rating may exceed 20 percent and may include a separate rating for pain up to the maximum of 20 percent under 5099-5003.  When pain is rated as minimally intense, and frequency occurs intermittently, occasionally, frequently, or even constantly, a Soldier will be rated as 0 percent disabled.  A 10 percent rating is allowed when intensity of pain increases to slight, moderate, or marked, and the frequency is frequent, constant, intermittent, or occasional.





DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and her disability was properly rated by the PEB in accordance with the above regulations.  Her separation with severance pay was in compliance with law and regulations.

2.  The applicant concurred with her MEB and informal PEB, and accepted over $124,000.00 in severance pay.  There is no substantive evidence to show that her decisions were not informed or not voluntarily.  Merely because she believes her disability process was unjust or improper three year later, does not make it so. 

3.  The applicant's counsel has leveled serious allegations against her treating physician who wrote the NARSUM in support of her MEB.  However, the Board found no evidence that her physician fabricated facts in the NARSUM to minimize her physical condition to cover his failed surgery efforts.  By regulation, the PEB initially conducts an informal adjudication.  This is a records review of the MEB, and applicable medical records and personnel documents.  The PEB is comprised of officers, including a physician, who review the MEB.  Further, USAPDA reviews the entire file.  The USAPDA is also comprised of qualified physicians.  If the applicant's physician fabricated facts in the MEB, it would have been obvious to the PEB and USAPDA, and corrections would have been made on the spot.

4.  The Board found no merit in the applicant's written statement.  She states that when she spoke to her physician in October/November 2002, he assured her she would be found unfit for duty and processed for medical discharge.  He did not assure her she would be medically retired, only medically discharged.  She contends that he told her that the MEB NARSUM was the only required medical record for review; yet she also stated that her PEBLO instructed her not only to have a complete physical for discharge, but to also obtain all medical documents and turn them in for the PEB's review.  She chose not to appeal the PEB because she did not know who to turn to or what to do; yet her PEBLO clearly advised her of her right to an appeal and to a formal PEB, and nothing prevented the applicant from asking the PEBLO how to accomplish the appeal process or whether she was entitled to an attorney to represent her case at a formal board.  Further, the applicant was a seasoned officer who had easy access to the Staff Judge Advocate system and who, if nothing else, could simply have obtained readily available Army regulations which clearly explain the entire PDES, to include her rights.  

5.  The applicant's condition was rated as 10 percent disabling because her HNP had been surgically corrected.  There is no medical evidence that the surgery was a failure.  She could not be rated under limitation of motion because she had no ratable mechanical limitation documented and she could not be rated for the radiculopathy because she had no documented objective physical neurological findings indicating a ratable nerve injury.  As such, she was essentially rated for pain.  Pain is ubiquitous, and subjectively reported, and cannot be measured objectively.  Her pain was found to be "slight" and "mild" in accordance with AMA guidelines.  Even if the USAPDA Physical Disability Agency Policy/Guidance Memorandum Number 13 had been in effect at the time of the applicant's discharge, there is no evidence her pain would have been rated any higher.  Under this guidance, even when pain is rated as minimally intense, and frequency occurs intermittently, occasionally, frequently, or even constantly, a Soldier will be rated as 0 percent disabled.  A 10 percent rating is allowed when intensity of pain increases to slight, moderate, or marked, and the frequency is frequent, constant, intermittent, or occasional.

6.  The other medical conditions raised by the applicant's counsel, if they existed at the time of her separation, met medical retention standards and were not independently unfitting.  The MEB referred her to the PEB for only one unfitting condition, and the applicant did not disagree with the MEB's findings.  

7.  The Board found no evidence of arbitrary or capricious actions by the command.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the disability process.  

8.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __jtm___  __rsv___  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
AR20060008074
SUFFIX

RECON

DATE BOARDED
20070322
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
20030808
DISCHARGE AUTHORITY
AR 635-40
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.3100
2.

3.

4.

5.

6.