RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 June 2007
	DOCKET NUMBER:  AR20060016250 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst


The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Ronald D. Gant

Member

Mr. Rowland C. Heflin

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 his Physical Evaluation Board (PEB) disability rating decision of 20 percent be changed to a higher rating.

2.  The applicant states, in effect, that he received a 10 percent disability rating for chronic pain without neurological abnormality and 10 percent disability rating for chronic neck pain.  However, he states that a medical examination showing he was diagnosed with chronic lumbar radiculopathies was faxed to the PEB after his hearing.

3.  He further states, in effect, that the formal board decision at Fort Sam Houston gave him a 20 percent disability rating.  He believed that the 20 percent disability rating is incorrect, because other Soldiers with the same condition received a higher disability rating.  He states if his disability rating is increase to 30 percent, he would like to know if he is entitled to retirement benefits.

4.  The applicant provides 

     a.  a copy of the PEB proceedings;

     b.  a copy of a Motor Sensor Nerve Condition Test, dated 28 July 2004; and

     c.  a copy of a Radiological Examination Report that shows the result of a CAT Scan and Cervical MRI.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records do not contain his Medical Evaluation Board (MEBD) or his formal PEB.  However an advisory opinion was provided to the Board by the United States Army Physical Disability Agency (USAPDA), dated 2 May 2007.

2.  In the advisory opinion from the USAPDA, the significant dates and events of the applicant's MEBD and PEB findings are chronicled.

3.  The USAPDA states that between 30 March 2004 and 28 May 2004 an MEBD and a PEB were conducted.  The informal PEB found the applicant unfit for his back pain and neck pain and rated both conditions at 10 percent.  The informal PEB recommended that the applicant be discharged with severance pay, rated 20 percent disabled.

4.  On 8 June 2004, the applicant nonconcurred and requested a formal hearing.
5.  On 24 June 2004, the informal PEB reviewed the additional medical information that was provided by the Medical Treatment Facility and the applicant.  However, the information provided did not provide any material evidence that would have required a change to their findings.  Also, the USAPDA states the evidence provided to the PEB was the same evidence that the applicant claimed was not commented on by the PEB.

6.  On 1 July 2004, a formal PEB affirmed the informal PEB's findings and recommendation.  The formal PEB findings considered the medical treatments (epidurals) for the applicant's back pain during the months of March, April, May and June 2004.

7.  On 8 July 2005, the applicant concurred with his formal findings after conferring with his appointed attorney.  On 12 July 2004, the PEB findings were approved by the Secretary of the Army.  

8.  The advisory opinion further states that the "applicant's chief complaint was in regard to his lower back pain.  The back pain began in 1990 and was exacerbated by a lifting incident in 2003.  An 'EMG' was conducted and it did not reveal any documented radiculopathy and there was no noted atropy or muscle weakness of an extremity.  There were no focal motor or sensory deficits.  He had tenderness to palpitation of his cervical and lumbar spine noted on his  
17 March 2004 'NARSUM', but no tenderness or pain to palpitation in his cervical, thoracic or upper lumbar spine during his 11 March 2004 East Georgia Regional Medical Center examination.  His back and cervical ranges of motion were all limited by pain."

9.  In summary, the PEB rated the applicant under Veterans Administration Schedule for Rating Disabilities (VASRD) code 5237, lumbosacral strain, at  
10 percent based upon pain with localized tenderness to palpitation.  A higher rating would require range of motion limitations confirmed by objective evidence establishing mechanic basis for the range of motion limitations, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  The applicant's medical findings did not support any mechanical basis for range of motion limitations nor were there any noted spasm or severe guarding.

10.  On 23 August 2004, the applicant was involuntarily discharged for physical unfitness with severance pay. The applicant's military service records do not contain a copy of his separation document.

11.  On 14 May 2007, the applicant submitted a rebuttal to the advisory opinion.  In his rebuttal the applicant refers to a nerve conduction test conducted while he was assigned to the Medical Holding Battalion at Fort Stewart, Georgia.  The applicant states that his physician referred to the term radiculopathies to signify his complaint of pain in his left leg.  In the nerve conduction tests dated 28 July 2004, the interpretation of his lumbar radiculopathies on his leg was said to be moderately severe.

12.  Radiculopathty is any disease of the spinal nerve roots and spinal nerves.  It is characterized by pain which seems to radiate from the spine to extend outward to cause symptoms away from the source of the spinal nerve root irritation.

13.  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).

14.  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 concurred with his formal PEB’s finding and recommendation on 8 July 2004.  The formal PEB’s finding and recommendation were approved by the Secretary of the Army on 12 July 2004.  The nerve conduction test submitted by the applicant is dated 28 July 2004.

2.  The time for the applicant to submit any documents pertaining to his disability ended when his formal PEB was approved by the Secretary of the Army on  
12 July 2004.  The case was considered final at that time.  Since the nerve conduction test submitted by the applicant was dated after 12 July 2004, it could not have been taken into consideration in his rating.

3.  However, it can be assumed that the 28 July 2004 nerve conduction test would not have changed the recommendation of the formal PEB.  The applicant had already been awarded the maximum allowable percentage of disability for pain (20 percent).  Since there was no mechanical limitation of motion involved, the applicant could not have been awarded a higher percentage of disability.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.