RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060014556 


	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

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Patrick H. McGann

Member

Mr. Gerald J. Purcell

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, adjustment of his disability rating to a minimum of 40 percent.

2.  The applicant states, in effect, that he received a 20 percent disability rating from the Medical Evaluation Board (MEBD) for a stiff neck; however, the MEBD failed to rate the radiculopathy in his left arm/hand.  He also states, in effect, that the surgeon who operated on him the third time affirms that he suffers from radiculopathy and his therapist also indicates that his left arm and hand is much weaker than his right arm and hand.  The applicant further states that the Department of Veterans Affairs (VA) provided him a disability rating of 60 percent with 30 percent of that for radiculopathy and pain in his left arm/hand.

3.  In a self-authored statement the applicant states that his life has been totally disrupted by an injury he attained while serving his country.  He also states that the injury was overlooked by the MEBD, which did not rate his radiculopathy.  The applicant describes the pain and weakness he suffers and indicates he was diagnosed with radiculopathy in July or August of 2004, along with spinal fusion of the C6-C7, which resulted in him being placed on the Temporary Disability Retired List (TDRL) with a 30 percent rating (i.e., 10 percent for neck stiffness with neck pain, along with 20 percent for radiculopathy).  The applicant adds that the Physical Evaluation Board (PEB) looking at his case 18 months later rated him at 10 percent with only a stiff neck and neck pain.  The applicant further states, in effect, only after appealing his case and hiring an attorney did the board acknowledge the original diagnosis of radiculopathy; however, the board was reluctant to add an additional percentage.  The applicant further states that the minimum rating for radiculopathy is 20 percent by itself, and with the stiff neck being 20 percent, he feels he should have a total rating of 40 percent.  The applicant refers to the medical documents he provides that show he has numbness in his fingers, pain and weakness in his left arm/hand, and has been told the pain may be managed by an electrical wire inserted into his neck for stimulation.  He states he also had his left hand operated on for carpal tunnel; however, this only relieved a little bit of the tingling.  The applicant concludes by stating that he suffers 24 hours a day, 7 days a week, with little relief taking medications; he can no longer function in his profession as an electrician on a ship; and feels this situation is a complete misunderstanding and deserves resolution.

4.  In addition to his self-authored statement, the applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 1 September 2004; 2 DA Forms 199 (Physical Evaluation Board (PEB) Procedures, dated 27 January 2006 and 24 February 2006; John F. L____, Attorney at Law, San Antonio, Texas, letter, dated 8 March 2006; The Neurosurgery Center (Exhibit U), dated 11 September 2005; 3 The Neurosurgery Center, Singing River Hospital, Pascagoula, Mississippi letters, dated
11 February 2006, 10 May 2006, and 15 September 2006, along with Physical Therapy Solutions, Progress Notes, dated 17 February 2006; Cervical Radiculopathy, Information for Health Care Professionals, dated 3 May 2006; Neurology Associates, EMG/NCV Report, dated 8 & 9 June 2006; Procedure Notes, dated 14 September 2006; and Department of VA, VA Regional Office, Jackson, Mississippi, Rating Decision, dated 7 August 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant (2LT) in the Mississippi Army National Guard (ARNG), extended temporary Federal recognition, effective
16 May 1977 as a 2LT in the Corps of Engineers, and continued to serve as an active member of the ARNG.  On 24 January 1994, the applicant was notified of his eligibility for retired pay at age 60.  He was promoted to lieutenant colonel (LTC) on 29 September 1997 and extended Federal recognition of his promotion to LTC in the ARNG, effective 17 November 1997.  The applicant was ordered to active duty in support of Operation Enduring/Iraqi Freedom from 10 February 2003 through 9 June 2004.  The applicant received orders to be retained on active duty to voluntarily participate in the Reserve Component Medical Holdover/Medical Retention Processing Program for completion of medical care and treatment from 10 June 2004 through 5 December 2004.

2.  The applicant's military service records contain a DD Form 214, with an effective date of 1 September 2004, that shows he was honorably separated under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), and placed on the TDRL, effective 2 September 2004.

3.  The applicant's military service records contain a copy of State of Mississippi, The Adjutant General's Office, Jackson, Mississippi, Orders 240-193, dated
27 August 2004, that show the applicant was honorably separated from the ARNG on 1 September 2004 and transferred to the Retired Reserve, effective
2 September 2004.


4.  The applicant's military service records contain a copy of State of Mississippi, The Adjutant General's Office, Jackson, Mississippi, Orders 253-149, dated
9 September 2004, that show the applicant was placed on the Mississippi ARNG retired list, effective 2 September 2004, in the permanent grade of LTC and in the retired grade of colonel (COL) without Federal recognition.

5.  In support of his application, the applicant provides the following documents:

     a.  DD Form 214, which shows, in pertinent part, he was placed on the TDRL, effective 2 September 2004.

     b.  DA Form 199, dated 27 January 2006, which shows, in pertinent part, that the applicant was evaluated for the following conditions, "[c]hronic neck pain, status post C6-7, C5-6 fusions, with significant neurologic abnormality.  Cervical forward flexion 37 degrees."  This document also shows that the evaluation included TDRL Evaluation Diagnoses 1, 2, Narrative Summary of 23 July 2005, Patient Note of 20 December 2005, Neurosurgery Note Diagnoses 1 and 2 of
7 January 2006, and EMG/NCV Report of 20 December 2005.  This document further shows Diagnoses 3 and 4 of 23 July 2005 and Diagnosis 3 of 7 January 2006, as not unfitting and not rated.  In addition, this document shows that the PEB recommended a disability percentage of 10 percent.

     c.  DA Form 199, dated 24 February 2006, which shows in Item 15 (For Formal Hearing) that the applicant elected to appear, did appear, and was represented by Mr. John F. L_____, Attorney at Law.  This document also shows, in pertinent part, that the board considered the applicant's "[c]hronic neck pain, status post C6-7, C5-6 fusions, cervical forward flexion 37 degrees but with total combined cervical range of motion less than 170 degrees."  The PEB also indicated, "[s]oldier has bilateral carpal tunnel syndrome and has no electrodiagnostic evidence of significant abnormality.  The PEB acknowledges a comment (although not included in the physician's impression) that there is a persistent radiculopathy but there is minimal evidence of motor component to this radiculopathy, which would be necessary for a separate rating for radiculopathy." This document further shows that the MEB included Diagnoses 1, 2, and Narrative Summary of 23 July 2005; Patient Note of 20 December 2005; Neurosurgery Note Diagnoses 1 and 2 of 7 January 2006; EMG/NCV Report of
20 December 2005; and applicant's exhibits and sworn testimony.  This document also shows Diagnoses 3 and 4 of 23 July 2005 and Diagnosis 3 of
7 January 2006, as not unfitting and not rated.  This document further shows that the PEB recommended a combined disability rating of 20 percent.  In addition, the DA Form 199 indicates that during formal PEB proceedings, the PEB reevaluated all available medical records and sworn testimony by the Soldier and, based on this review, the board considered the Soldier most appropriately rated.  This document also indicates that, "[b]ased on review of the TDRL examination, the PEB finds that the Soldier remains unfit to reasonably perform the duties required by previous grade and military specialty.  The Soldier's current condition is considered sufficiently stable for final adjudication."  This document further shows that the applicant indicated he did not concur with the findings and recommendations of the formal PEB Proceedings and submitted a rebuttal to the formal PEB findings and recommendations on 8 March 2006.

     d.  Letter from John F. L____, Attorney at Law, San Antonio, Texas, dated
8 March 2006, to the U.S. Army Physical Disability Agency (USAPDA), submitted in rebuttal to the findings and recommendations of the formal PEB proceedings of 24 February 2006.  This document shows, in pertinent part, that the applicant maintained that his chronic neck pain, status post C6-C7 and C5-C6 fusions should be rated under VA Schedule for Rating Disabilities (VASRD) 5241 at
20 percent since the applicant's total combined cervical range of motion was less than 170 degrees.  This document also states, in effect, that the applicant was assigned ratings not only for the chronic neck pain under VASRD 5241, but also assigned 20 percent for left C5-C6 Radiculopathy under VASRD 8510, when he was placed on the TDRL by the MEBD.  This document also shows that the applicant introduced a number of exhibits at the formal PEB which reflected his current medical status, including documents which described the applicant's radiculopathy in his left arm/hand.  This document also shows that "an updated and corrected February 11, 2006 narrative from Dr. McC______ and an updated and corrected EMG/NCV Report dated December 20, 2005, prepared by Terry J. M______, MD," were also submitted as part of the applicant's rebuttal to the findings and recommendations of the formal PEB hearing.  The document concludes by indicating that the applicant "continues to suffer from left cervical radiculopathy, pain, paresthesias, numbness and tingling and that nothing in this regard has changed since he was originally placed on TDRL" and asks that the applicant be permanently medically retired with an overall compensable rating of 40 percent (i.e., 20 percent for chronic neck pain, status post C6-C7, C5-C6 fusions, cervical forward flexion 37 degrees with total combined cervical range of motion of less than 170 degrees, under VASRD 5241 and combined with a minimum rating of 20 percent for left upper extremity, C5-C6 cervical radiculopathy under VASRD 8510).

     e.  The Neurosurgery Center (Exhibit U), dated 11 September 2005; The Neurosurgery Center, Singing River Hospital, Pascagoula, Mississippi letter, dated 11 February 2006, and Physical Therapy Solutions, Progress Note, dated 17 February 2006 that were presented as exhibits at the applicant's formal PEB.

     f.  The Cervical Radiculopathy, Information for Health Care Professionals, dated 3 May 2006, provides, in pertinent part, a quick synopsis of C7 and C5 radiculopathy.

     g.  The Neurosurgery Center, Singing River Hospital, Pascagoula, Mississippi letter, dated 10 May 2006, shows, in pertinent part, that the applicant had 3 neck operations and continues to have neck pain and radiculopathy in his left arm.

     h.  The Neurology Associates, EMG/NCV Report, dated 8 & 9 June 2006, in pertinent part, documents nerve conduction on the applicant's upper extremities.

      i.  The Neurosurgery Center, Singing River Hospital letter, dated
15 September 2006, along with Procedure Notes, dated 14 September 2006, in pertinent part, indicate that the applicant's current problems stem from his injury to his neck while serving in Iraq in October 2003 and that he has cervical radiculopathy affecting his left upper extremity.

     j.  Department of VA, VA Regional Office, Jackson, Mississippi, Rating Decision, dated 7 August 2006, shows, in pertinent part, that evaluation of the applicant's carpal tunnel syndrome, right upper extremity, was increased to
10 percent effective 9 May 2006; carpal tunnel syndrome, left upper extremity was increased to 20 percent effective 9 May 2006; and traumatic degenerative disease, cervical spine with residual chronic neck pain and radiculopathy of left arm, postoperative cervical foraminiotomy and discectomy with instrumentation and fusion was continued at 30 percent disability.

6.  In connection with the processing of this case, copies of documents relating to the applicant's Physical Disability Evaluation System (PDES) processing were obtained from the USAPDA, Washington, DC that included a copy of Headquarters, U.S. Army Physical Evaluation Board, AHRC-DPC-T, Fort Sam Houston, Texas, memorandum, dated  9 March 2006, subject: Rebuttal of Physical Evaluation Board Findings; DA Form 199, dated 24 February 2006; Headquarters, USAPDA, AHRC-DOE, Washington, DC memorandum, dated
20 April 2006, subject: Nonconcurrence/Rebuttal to PEB Findings; and Headquarters, USAPDA, AHRC-DOE, Washington, DC memorandum, dated
2 June 2006, subject: Disability Election: Separation with Severance Pay or Transfer to the Retired Reserve.  The Headquarters, USA PEB memorandum, dated 9 March 2006, shows, in pertinent part, that the PEB reviewed and carefully considered the applicant's rebuttal to the 24 February 2006 PEB findings and found that it contained no new objective medical or performance evidence which would warrant a change to the original findings and noted that there is insufficient evidence of motor abnormality in the left upper extremity to diagnose a ratable radiculopathy.  This document also shows that the applicant's case was forwarded to the USAPDA for final processing.  The DA Form 199, dated 24 February 2006, shows, in pertinent part, that the PEB findings and recommendations were approved for the Secretary of the Army on 19 April 2006. The Headquarters, USAPDA memorandum, dated 20 April 2006, shows that the USAPDA noted the applicant's disagreement with the PEB findings, reviewed his entire case, and concluded that the applicant's case was properly adjudicated by the PEB, which correctly applied the rules that govern the PDES in making its determination.  This document also shows the findings and recommendations of the PEB are supported by substantial evidence, were affirmed by the USAPDA, and that the applicant was notified of the results of the USAPDA review.  The Headquarters, USAPDA memorandum, dated 2 June 2006, shows, in pertinent part, that the applicant was notified of the approval of the PEB and was provided information concerning his election of separation with severance pay or transfer to the Retired Reserve.

7.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-9 (The temporary disability retired list) provides, in pertinent part, that the requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have
20 years of service computed under Title 10, United States Code, Section 1208.  In addition, the condition must be determined to be temporary or unstable.

9.  Paragraph 4-10 (The Medical Evaluation Board) of Army Regulation 635-40 provides that medical evaluation boards are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in AR 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.
10.  Paragraph 4-22 (Review by U.S. Army Physical Disability Agency) of Army Regulation 635-40 provides, in pertinent part, that the USAPDA is required to review formal proceedings when the Soldier nonconcurs with the PEB findings and recommendations, submits a statement of rebuttal within the required time frame, and consideration of the rebuttal by the PEB does not result in a change to its findings and recommendation.

11.  Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his disability rating should be adjusted to a minimum of 40 percent because he received a 20 percent disability rating for a stiff neck; however, the PEB failed to provide a separate rating for his radiculopathy.  However, the applicant provides insufficient documentary evidence in support of his claim.

2.  The evidence of record shows that the applicant was evaluated by a MEBD to document his medical status and duty limitations and to render a decision as to the applicant's medical qualification for retention.  The evidence of record also shows that the MEBD determined the applicant did not meet retention standards and referred the applicant to a PEB, which recommended that the applicant be placed on the TDRL, effective 2 September 2004.  The evidence of record also shows that, at the time the applicant was placed on the TDRL he had at least
20 years of service and that the Mississippi ARNG transferred the applicant to the Retired Reserve, effective 2 September 2004.

3.  The evidence of record shows that the applicant subsequently underwent periodic medical examination and PEB evaluation.  The evidence of record also shows that information and medical documentation provided by the applicant concerning his radiculopathy was reviewed and considered by Army medical officials at a formal PEB, which recommended a combined disability rating of
20 percent.

4.  In addition, the evidence of record shows that the information and medical documentation provided by the applicant was reviewed and considered by the USAPDA.  This review was conducted to ensure that: (1) the applicant received a full and fair hearing; (2) the proceedings of the MEBD and PEB were conducted according to governing regulations; (3) the findings and recommendations of the MEBD and PEB were just, equitable, consistent with the facts, and in keeping with the provisions of law and regulations; (4) due consideration was given the facts and requests contained in any rebuttal to the PEB findings and recommendations submitted by, or for, the applicant; and (5) records of the case were accurate and complete.

5.  The evidence of record shows that the USAPDA considered the applicant's disagreement with the PEB findings and reviewed his entire case.  The USAPDA concluded that the applicant's case was properly adjudicated by the PEB, which correctly applied the rules that govern the PDES in making its determination; that the findings and recommendations of the PEB are supported by substantial evidence; and therefore, were affirmed by the USAPDA.

6.  In view of the foregoing, there is no evidence of record to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the processing of the applicant's disability processing. Therefore, the applicant is not entitled to correction of his records.

7.  The evidence of record shows that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA, on the other hand, must provide compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA, in its discretion, may have awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JEV__  ___PHM_  ___GJP _  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.




______James E. Vick_______
          CHAIRPERSON




INDEX

CASE ID
AR20060014556
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/24
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20040901
DISCHARGE AUTHORITY
NGR 635-100, Paragraph 5a(14)
DISCHARGE REASON
Transferred to the Retired Reserve
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
108.0200.0000
2.

3.

4.

5.

6.