RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  03 January 2008
	DOCKET NUMBER:  AR20060017621 


	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

Ms. Deyon D. Battle

Analyst


The following members, a quorum, were present:


Ms. Ann M. Campbell

Chairperson

Mr. Dean A. Camarella

Member

Mr. Rodney E. Barber

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 the service connected disability rating that he was assigned by the Department of the Army Physical Evaluation Board (PEB) be increased.

2.  The applicant states that other disabilities were not considered or allowed to be considered during the PEB proceedings.  He states that the dictation "required" by the recommending physician for the PEB was forged by personnel from the Physical Evaluation Board Liaison Office (PEBLO) and not submitted by the recommending physician.  He states that the PEBLO counselor failed to provide proper counseling during the board proceedings pertaining to reassignments, options, rights and appeal procedures.  He states that the PEBLO counselor that was assigned to the Reserve Soldiers at Darnell Army Community Hospital was incompetent and did not possess the knowledge and skills to serve in that capacity.  He states that supporting evidence provided by the military and civilian health care providers was totally ignored by the PEB; and that the Army attorney assigned to represent him during the formal PEB proceedings did not properly counsel him and advise him of his rights.

3.  The applicant provides in support of his application, the first page of his informal PEB Proceedings; a copy of a PEB Referral Transmittal Document; a copy of a Texas PEB Fact Sheet; a copy of a PEBLO/PEB Checklist; a copy of his Medical Evaluation Board (MEB) Proceedings; a copy of his rebuttal to the MEB Addendum; a copy of the MEB Addendum; a copy of the MEB Report; a copy of his formal PEB Proceedings; copies of his medical records, reports, examinations and studies; and a copy of his Physical Profile.

CONSIDERATION OF EVIDENCE:

1.  The available records indicate that the applicant was a member of the United States Army Reserve serving on active duty in the rank of lieutenant colonel (0-5) when he was placed on a permanent physical profile on 29 March 2004, after being diagnosed as having a lumbar degenerative disc.  His physical profile limited him from being able to move with a fighting load at least 2 miles; from being able to construct an individual fighting position; and from being healthy without any medical condition that prevented deployment.





2.  An MEB convened on 20 April 2004 to determine whether the applicant should be referred to a PEB for consideration.  The MEB diagnosed the applicant as having lumbar degenerative disc, which did not meet the retention standards in accordance with Army Regulation 40-501.  The MEB also diagnosed him with right shoulder acromioclavicular joint degenerative joint disease with a component of subacromial impingement, which did meet retention standards.  The MEB recommended that the applicant be referred to a PEB for consideration.  

3.  On 30 August 2004, the applicant acknowledged receipt of the MEB's findings and recommendation.  He indicated that he disagreed and that he was submitting a rebuttal to the decision made in his case.  In his rebuttal, he stated that the injections that he had been taking for relief of his pain only lasted a few weeks.  He stated that his shoulder pain and discomfort was greater than before and that he still experienced pain when making certain movements such as getting dressed and when placing any stress on his shoulder.  He stated that he was not able to sleep on his right side due to experiencing pain and numbness which was continuously causing problems.  He stated that he continued to experience a tingling sensation in his right hand when performing any aerobic exercises for 20 minutes or longer and that no circulatory problem was detected from an electrocardiogram (EKG) or stress test that he underwent.  The applicant stated that the injections that he had been taking only provided temporary relief; and that the only viable solution was to continue to receive injections every 3 weeks or to undergo surgery to remove the end of the clavicle.  He stated that he feared that repeated injections would worsen the condition of his shoulder and cause further increase in pain and discomfort.  He stated that the success of surgery was supposed to be indicated by the lasting relief from the injections.  The applicant concluded his rebuttal by stating that given the brevity of his relief from the injections, there was no guarantee of what relief surgery would have produced.

4.  On 22 September 2004, the applicant's orthopedic surgeon noted that he had discussed the likelihood of reduction of his shoulder pain with distal clavicle excision and that based on the applicant's response to injections and his persistent shoulder pain, he had a greater than 90 percent chance of significant symptom relief with excision.  The orthopedic surgeon noted that continued injections would offer the applicant only temporary relief and that he remained reluctant to pursue surgical intention at that time.  The orthopedic surgeon indicated that the applicant would continue to take pain medication daily and to modify his activities.

5.  On 23 September 2004, after consideration of the applicant's appeal, the approval authority confirmed the MEB's original findings and recommendation.

6.  An informal PEB convened on 5 November 2004 to determine the applicant's fitness for retention on active duty.  The PEB's diagnosis was chronic subjective back pain, status post L4-5 fusion, without neurologic abnormality and thoraculumbar range of motion limited by pain.  The PEB found that based on a review of the objective medical evidence of record, the applicant's medical and physical impairment prevented reasonable performance of duties required by his grade and military specialty.  The PEB assigned the applicant a 10 percent service connected disability rating and recommended that he be separated with severance pay if otherwise qualified.  At the time of his PEB, the applicant was informed that as a Soldier with a rating of less than 30 percent who may have at least 20 qualifying years of service for Reserve retirement under the provisions of Chapter 67, Title 10, United States Code, he may have the option of accepting disability severance pay and forfeiting his Reserve retirement pay, or requesting transfer to inactive Reserve status and receiving Reserve retired pay at age 60.  

7.  On 9 December 2004 a formal PEB convened to determine the applicant's fitness for retention on active duty.  The applicant was present and he was represented by counsel and the PEB proceedings indicate that he submitted a range of motion test dated 8 December 2004; various medical record entries dated 29 March 2004; medical record entries dated 3 December 2004; a range of motion test dated 6 December; and a nerve condition study dated 23 November 2004 for consideration by the board.  The formal PEB's diagnosis, findings, recommendation and assigned disability rating were the same as initially made by the informal PEB's.  On 13 December 2004, the applicant indicated that he did not concur with the decision made in his case and he submitted a statement of rebuttal.  In his statement he contended that his range of motion tests dated 3 November 2004, 6 December 2004, 8 December 2004 and 9 December 2004 all represent his full range of motion due to physical limitations.  He contended that on 18 November 2004 during his initial range of motion tests, his physician never discussed with him whether his movements were due to pain or physical limitations.  

8.  In his rebuttal he contended that his physician asked him if he was in pain and his reply was yes, but it was not a hindrance to his movements.  He stated that he underwent four separate range of motion test and at no time was he able to exceed 30 percent for flexion; that due to the hardware implanted in his 


vertebrae, he had not been able to bend forward as much as before his back injury; that the range of motion tests included in his medical board packet represented his full range of motion, which are due to physical limitations only; and that none of his motion measurements were limited due to pain or his unwillingness to move.  He concluded his rebuttal by stating that he experiences both numbness and weakness in his left leg on a continuous basis and that he believed that he does experience neurological abnormality.

9.  The facts and circumstances surrounding the applicant's release from active duty (REFRAD) are unavailable for review at this time.  His Certificate of Release or Discharge from Active Duty (DD Form 214) shows that on 8 February 2005, the applicant was honorably REFRAD under the provisions of Army Regulation 600-8-24, paragraph 2-27A, upon completion of his required service and he was transferred to the United States Army Reserve Control Group (Retirement).

10.  On 7 September 2006, an advisory opinion was obtained from the Deputy Commander, United States Army Physical Disability Agency (USAPDA) who opines that only the applicant's back condition was considered to fall below medical retention standards.  The Deputy Commander states that the applicant reviewed the MEB and on 30 August 2004, he appealed the MEB findings only as they related to some comments about his shoulder; that the MEB appellate authority reviewed the applicant's comments; that the findings remained that surgery would most likely have a positive result; and that the applicant did not want to consider the option of surgery and he opted to continue with pain treatment and modification of his physical activities.  The Deputy Commander states that the applicant was found unfit for back pain; that his shoulder condition was not found unfitting as it did not significantly hinder his duty performance and it was not listed on his physical profile; and that the MEB indicated that shoulder condition met the medical retention standards.  The Deputy Commander states that on 9 November 2004, the applicant was fully counseled as to the findings and election options by the PEBLO and he nonconcurred and demanded a formal hearing.  He states that the applicant requested appointed legal counsel and on 17 November 2004, he indicated, in writing that he fully understood all his rights and formal board processes.  

11.  In the advisory opinion, the Deputy Commander states that the applicant's legal counsel fully advised him of his legal rights and that he submitted a rebuttal stating that his range of motion limitations should be considered as 30 degrees of flexion, not limited to pain.  He states that the PEB fully considered the applicant’s rebuttal and responded on 14 December 2004, that unless there is a documented mechanical basis for the limitation of motion, Army Regulation 
635-40, paragraph B-29, indicates that range of motion cannot be used as a basis of rating.  The Deputy Commander states that the applicant was counseled further about his legal rights on 4 January 2005 and he opted to accept transfer to the retired reserves in lieu of any separation due to disability.  The Deputy Commander states that all medical conditions were properly cited and addressed by the MEB/PEB; that the applicant did not offer any other conditions for review; and that even if sleep apnea, hypertension and carpal tunnel syndrome had been listed, they would never have been found to be independently unfitting as there was no evidence that any of these conditions materially affected his ability to perform his assigned military duties.  The Deputy Commander, in effect, recommends denial of the applicant's request.

12.  The applicant enlisted counsel who submitted a rebuttal to the advisory opinion dated 4 December 2006.  In the rebuttal counsel states that the applicant's range of motion limitations are not due to pain and are due to his initial injury and subsequent surgery with complications.  He states that recently, two other doctors have carefully analyzed all of the applicant's medical records and have made the same determinations.  Counsel states that a doctor accomplished a 13-page workup of all available medical records which is one of the bases for submitting a rebuttal to the advisory opinion.  Counsel states that fair is fair and that in the signature line, the individual who authored the advisory opinion identifies himself as an aviator.  He states that there are no stated medical qualifications establishing the advisory opinion as an objective, professional medical analysis.  

13.  In the rebuttal to the advisory opinion, counsel states that the doctor who completed the 13-page workup on the applicant provides the missing reasoned medical analysis in that there is no evidence that the applicant was fully educated as to his PEB rights; that another doctor recently examined the applicant and determined that his range of motion was due to his initial injury and subsequent to surgery; and that both doctors, after independent analysis, concluded that the formal PEB "got it wrong".  Counsel states that the advisory opinion is the viewpoint of an individual with no stated medical credentials, which is unfair to both the applicant and the system.  Counsel concludes by requesting that if the applicant is refused redress, let it be on the basis of a board certified Army doctor who can adequately dispute the conclusions of his two most recent doctors and not on an individual with no standing medical credentials.  Counsel submits an unsigned and undated statement pertaining to one of the applicant's current doctors; an undated and unsigned 15-page case analysis regarding the applicant's medical condition; copies of previous and current medical documentation; and copies of his Department of Veterans Affairs (VA) Ration Decisions dated 28 December 2005, 8 May 2006 and 9 November 2006.

14.  Records provided by the VA indicate that the applicant has been awarded compensation for medical conditions which that agency has determined to be related to military service.

15.  Title 38, United States Code, sections 1110 and 1131, permit the 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.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The question in this case is whether or not the actions taken by the MEB and the two PEBs were in error or unjust.

2.  Based on the available documentation, the applicant was REFRAD and assigned a disability rating in accordance with the applicable laws and regulations.  While the contentions and documentation submitted by the applicant, his counsel and his current doctors have been considered, there is insufficient evidence that the decisions made by those three boards were erroneous or unjust.
3.  The fact that the applicant's counsel and civilian doctors disagree with the diagnosis made by Army medical authorities has been noted.  However, the disagreement does not constitute error or injustice in the rating assigned to the applicant by Army physicians.  He was diagnosed and treated by competent medical authority while he was in the Army.  He was considered by an MEB and two PEBs (formal and informal) and all three boards rated his disability at 10 percent.  He has provided insufficient proof that prior to his REFRAD he had other unfitting conditions that were not properly rated.

4.  While the applicant was found to be physically unfit for continued service on active duty, he was provided the option of accepting disability with severance pay or transfer to an inactive Reserve and receiving retired pay at age 60.  He chose the latter of the two options.

5.  The applicant has provided no evidence to show that he was not properly counseled by the PEBLO regarding his options and the fact that he contends that he was not is insufficient justification to change a rating that was assigned to him by competent medical authority at the time of his REFRAD.  His dissatisfaction with the rating that he was assigned is not proof of error or injustice in the decisions made by the MEB and the PEBs.

6.  Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

7.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

8.  Counsel's contentions regarding the author of the advisory opinion obtained in this case has been noted.  However, opinions obtained from outside sources are not the sole basis for granting and/or denying relief in an individual's case.  Only after a thorough review of all available documentation will a decision be made to grant or deny the requested relief. 

9.  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.  Although numerous documentation has been submitted, the applicant and his counsel have failed to submit evidence that would satisfy this requirement.


10.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__AMC__  __DAC__  __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.





___Ann M. Campbell          _
          CHAIRPERSON




INDEX

CASE ID
AR20060017621
SUFFIX

RECON

DATE BOARDED
20080103
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  177
108.0000/DISABILITY RETIREMENT
2.  179
108.0200/PERCENTAGE OF DISABILITY
3.

4.

5.

6.