RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060011708 


	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 medical retirement.

2.  The applicant states, in effect, that her disability was erroneously rated as only 20 percent disabling and that the Physical Evaluation Board (PEB) failed to consider the surgeries she underwent, as well as additional medical evidence which shows she has nerve damage to both arms and loss of grip strength.  She believes if the PEB had reviewed this medical evidence, it would have found her 30 percent disabled and entitled to medical retirement. 

3.  The applicant provides a copy of her appeal of her formal PEB and all associated medical evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a first sergeant/E-8 in the U.S. Army Reserve ordered to active duty in support of Operation Enduring Freedom.  Her period of active duty was extended on numerous occasions to complete required medical evaluation.

2.  On 3 January 2006, the applicant underwent a Medical Evaluation Board (MEB) for chronic neck pains with radiculopathy, status post neck surgery (times 2) and status post right cubital tunnel release; intermittent migraine without aura; and hypertension, controlled.  The migraines and hypertension were found to be non-disqualifying.  She was referred to a PEB for further adjudication because she did not meet retention standards for her chronic neck pains with radiculopathy.  

3.  On 11 January 2006, the applicant concurred with the MEB's findings and recommendations.

4.  On 2 February 2006, an informal PEB was convened in Washington, D.C.  The PEB found her unfit for military service due to chronic neck pain with a history of sharp upper back pains from moving equipment on a number of occasions.  The PEB noted that a May 2002 cervical MRI demonstrated C5-7 disc protrusion.  After two surgeries, the applicant reported continuing symptoms. The physical examination noted pain limiting the ranges of motion and slight tenderness.  The neurological examination was essentially normal.  Her condition was rated as 10 percent disabling.  The applicant nonconcurred with the finding and recommendation of the informal PEB and demanded a formal PEB.

5.  The applicant was notified that she qualified for Non-Regular retirement (her 20-year letter was issued 10 November 2005) and that she had the option of accepting disability severance pay and forfeiting her Reserve retirement or she could be placed in an inactive Reserve status and receive Reserve retired pay at the age of 60.

6.  On 2 March 2006, the applicant appeared before a formal PEB with civilian counsel.  The PEB reviewed additional evidence submitted by the applicant (the same medical evidence submitted with her ABCMR application) and found that a slight tenderness was noted upon palpation along the cervical spine and that her forward flexion was limited to 19 degrees.  The neurological examination was essentially normal.  The PEB found that she was unfit for duty and rated her condition as 20 percent disabling.

7.  The applicant disagreed with the PEB and, on 16 March 2006, she entered an appeal to the formal PEB.  In her appeal, she indicated that the PEB did not adequately consider her two surgeries; her average passive range of motion measurement, which was limited by pain; or her right arm condition which the MEB did not evaluate.  She contends that she submitted evidence to the PEB showing a right ulner nerve entrapment with motor and sensory deficits and this condition also rendered her unfit for duty in her military occupational specialty.  

8.  On 27 April 2006, the U.S. Physical Disability Agency (USAPDA) reviewed the findings of the applicant's PEB and her entire case, and concluded that her case was properly adjudicated by the PEB.  

9.  On 4 June 2006, the applicant was discharged by reason of a disability with severance pay.  She received $97,718.40 in severance pay.  Her service was characterized as honorable.

10.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  Paragraph B-17 of Army Regulation 635-40, in pertinent part, states “revisions of the VASRD [VA Schedule for Rating 


Disabilities], after publication of this appendix, will take precedence unless found to be inappropriate to Army requirements." The effective date of this regulation was 15 August 1990.

11.  Department of Defense Instruction (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 6.15 of DODI 1332.39 states “Enclosure 2 provides instructions and explanatory notes for rating certain disabilities.  This guidance will be followed unless a subsequent change to the VASRD makes the guidance obsolete.”  The effective date of this instruction is 14 November 1996.

12.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the DVA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

13.  The VASRD code 5241 is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes):
 
a.  With or without symptoms such as pain (whether or not it
     radiates), stiffness, or aching in the area of the spine
     affected by residuals of injury or disease
 
     Unfavorable ankylosis of the entire spine.............................100
 
     Unfavorable ankylosis of the entire thoracolumbar spine……50

     Unfavorable ankylosis of the entire cervical spine; or,……….40
     forward flexion of the theracolumbar spine 30
     degrees or less; or, favorable ankylosis of the entire
     theracolumbar spine

     Forward flexion of the cervical spine 15 degrees or………… 30
     less; or, favorable ankylosis of the entire cervical spine
 
	     

                Forward flexion of the thoracolumbar spine greater than..…..20
	     30 degrees but not greater than 60 degrees; or forward
	     flexion of the cervical spine greater than 15 degrees but
	     not greater than 30 degrees; or, the combined range of
	     motion of the thoracolumbar spine not greater than 120
	     degrees; or, the combined range of motion of the cervical
	     spine not greater than 170 degrees; or muscle spasm or
	     guarding severe enough to result in an abnormal gait or
	     abnormal spinal contour such as scoliosis, reversed lordosis,
	     or abnormal kyphosis

	     Forward flexion of the theracolumbar spine greater than ……...10
	     60 degrees but not greater than 85 degrees; or, forward
	     flexion of the cervical spine greater than 30 degrees but
	     not greater than 40 degrees; or combined range of motion
	     of the thoracolumbar spine greater than 120 degrees but 
	     not greater than 235 degrees; or, combined range of
	     motion of the cervical spine greater than 170 degrees
	     but not greater than 335 degrees; or, muscle spasm, 
	     guarding, or localized tenderness not resulting in 
	     abnormal gait or abnormal spinal contour; or, vertebral
	     body fracture with loss of 50 percent or more of the height.

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record supports the determination that the applicant's unfitting conditions were 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 was properly rated as 20 percent disabled because her forward flexion of the cervical spine was greater than 15 degrees but not greater than 30 degrees as stipulated by VASRD code 5241.  As shown above, disability ratings are based on specific medical findings.  

3.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  She was provided with the opportunity to appeal her informal PEB and appeared, with counsel, at her formal PEB.  She appealed the formal PEB to USAPDA, and USAPDA found that her case was properly adjudicated by the PEB.

4.  The applicant now contends that the PEB should have also considered another condition she claims is unfitting, specifically a right arm condition and she presents medical evidence to support her claim.  This medical evidence provided by the applicant was seen by both the formal PEB and the USAPDA when the applicant appealed her case.  

5.  Since the applicant accumulated more than 20 years of qualified service for Reserve retirement she was given the choice of electing transfer to the Retired Reserve and receipt of her military pension at age 60 or receiving disability severance pay.  She opted to receive the severance pay in lieu of being transferred to the Retired Reserve.

6.  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.  Therefore, she is not entitled to medical retirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __lwr___  __reb___  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.



						Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011708
SUFFIX

RECON

DATE BOARDED
20070315
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
20060604
DISCHARGE AUTHORITY
AR 635-40, Chap 4
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.3100
2.

3.

4.

5.

6.