RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2008
	DOCKET NUMBER:  AR20070004264 


	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. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. James B. Gunlicks

Chairperson

Mr. Donald W. Steenfott

Member

Mr. Roland S. 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, in effect, that his physical disability rating be increased to 40 percent. 

2.  The applicant states, in effect, that the Physical Evaluation Board (PEB) changed his disability rating several times which originally began at 40 percent and currently shows a disability rating of 10 percent.

3.  The applicant continues that his physical condition has limited his daily activities based on a very painful right shoulder, back pain, bilateral knee pain, and the inability to sleep.  The applicant continues that his regimen of medication to relieve the pain has limited his ability to drive and perform his regular job.  

4.  The applicant alleges that block 8b (Disability Description) of DA Form 199 
(Physical Evaluation Board (PEB) Proceedings) was changed every time the PEB reviewed his case in order to justify changing the percentage of his disability rating.  The applicant contends that his disability has not changed and he suffers with the same conditions that warranted a 40 percent disability rating.

5.  The applicant provided copies of his medical records; two rebuttal letters; four DA Forms 199; and a Release from Active Duty Order, dated 18 June 2007 in support of this case.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's record shows he enlisted in the Indiana Army National Guard (INARNG) on 3 April 1982.  On 17 June 1983 he was ordered to active duty for training, where he was awarded military occupational specialty (MOS) 360 (Wire System Installer/Operator).  On 13 August 1983, he was honorably released from active duty for training and returned to the INARNG Reserve Component where he served until 22 April 1990.  The applicant was again ordered to active duty for training on 22 January 1991, and was awarded MOS 31L (Wire Systems Installer).  On 26 March 1991, the applicant was honorably released from active duty for training and transferred to Headquarters 3rd Battalion of the 70th Infantry Division, Fort Wayne, Indiana.

2.  The applicant's record shows he entered active duty on 15 September 1991.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman).  On 1 September 1996, the applicant was honorably released from active duty and transferred to the 99th Regional Support Command [currently known as the 99th Regional Readiness Command].  The highest rank he attained while serving on active duty was in the rank of sergeant/pay grade 
E-5.

3.  The applicant's record shows he was ordered to active duty 1 November 2003 and was honorably released from Active Duty upon completion of his required active service on 31 October 2005, and transferred to the United States Army Reserve Control Group (Reinforcement).  The applicant's record shows that he completed 2 years of active service during this period.  The highest grade he attained while serving on active duty was in the rank of sergeant first class/pay grade E-7.  

4.  On 1 November 2005, the applicant was ordered to active duty in support of Active Duty Medical Extension (ADME).  On 19 June 2007, the applicant was honorably released from active duty and transferred to the United States Army Reserve Control Group (Retired Reserves) in the rank of sergeant first class/pay grade E-7.  The applicant's record shows that he completed 1 year, 7 months, and 19 days of net active service during this period.

5.  On 23 June 2006, a medical evaluation board (MEB) diagnosed him as having a right shoulder impingement syndrome [commonly causes local swelling and tenderness in the front of the shoulder.  There may be pain and stiffness when the arm is lifted.  There may also be pain when the arm is lowered from an elevated position], lumbar spondylosis L4-5, L5-S1 with facet anthropathy and L5-S1 disk bulge [describes bony overgrowths (osteophytes), predominantly those at the anterior, lateral, and, less commonly, posterior aspects of the superior and inferior margins of vertebral centra (bodies).  This dynamic process increases with, and is perhaps an inevitable concomitant, of age], and bilateral patellafemoral syndrome [commonly referred to as "knee cap" pain and its tendon transmit power from the quadriceps to the lower leg.]  

6.  On 27 June 2006, the applicant concurred with the medical board findings and his case was referred to the PEB for further medical review.

7.  On 29 June 2006, the PEB assigned the applicant a 10 percent disability rating for his painful shoulder and knees under the Agency's pain policy.  The PEB also assigned him a 10 percent rating for chronic back pain in accordance with the VASRD (Veterans Administration Schedule for Rating Disabilities).  The PEB also determined that he would be assigned a combined disability rating of 20 percent and separated with severance pay.

8.  On 13 July 2006, the applicant did not concur with the findings and requested a formal hearing.  On 2 August 2006, a formal PEB affirmed the informal PEB findings of a 20 percent disability rating and recommended he be separated with severance pay.

9.  On 11 August 2006, the applicant did not concur with formal PEB and submitted a rebuttal indicating that his pain levels were deserving of a minimum of 50 percent combined disability rating.  The applicant provided a copy of his rebuttal to the PEB.  The applicant states, in effect, that on a daily basis he has chronic and constant pain in his back and rates the pain level at a 7 or 8 on a scale of 10.  The applicant continues that on a daily basis he has chronic/marked pain in his right shoulder with impingement syndrome which limits movement of his shoulder with tenderness and spasms in his neck.  The applicant adds that he is stricken with patellofemoral syndrome in both knees without range of motion (ROM) limitations.  He adds that on a daily basis his knees joints lock and pop, and occasionally give out on him when bending, standing, or sitting for prolong periods of time.  The applicant rates the pain in his knees a level 6 to 7 on a scale of 10.  The applicant concluded that he continues to require the use of medication, analgesics, muscle relaxants, and possible surgery on his knees, back, and shoulder if his conditions become worse.  The applicant states that he wishes the PEB would increase his disability rating to show 20 percent for chronic back pain, 10 percent for Patellofemoral Syndrome in both knees, and 20 percent for his shoulder with Impinge Syndrome for a total of 50 percent. 

10.  The formal PEB determined that the applicant's rebuttal offered no specific rating errors or misapplication of the rating guidance.  The formal PEB response to the applicant's rebuttal concluded that they found no new evidence or meritorious reason requiring a change in their findings.  On 28 August 2006, the formal PEB returned the applicant's case to the informal PEB because of an inadequate rationale describing the applicant's painful knees and shoulder conditions.

11.  On 8 September 2006, the formal PEB reconsidered the prior findings of 20 percent with severance pay and increased the pain rating for his shoulder and knees to 30 percent based on three major joints affected by non-compensable limitations of motion.  The formal PEB determined that the applicant should be placed on the Temporary Disability Retired List with a 40 percent combined disability rating.



12.  On 12 September 2006, the applicant concurred with the reconsideration of the PEB’s finding of a 40 percent combined disability rating.  On 10 October 2006, the United States Army Physical Disability Agency (USAPDA) returned the applicant’s case to the PEB.  The official stated that the PEB rated the Soldier as if he had a limited ROM due to mechanical factors versus normal ROM and recommended the case be returned to the servicing Medical Treatment Facility 
(MTF).  The MEB physician should verify that the report provides additional 
information regarding whether the Soldier’s limitation of motion is due to mechanical factors, and that the MFT provides the information required for accurate adjudication.

13.  On 18 October 2006, the PEB returned the case to the MEB section at the hospital for additional evidence.  On 27 October 2006, the MEB provided additional ROM evidence about the applicant's affected joints.  

14.  On 30 October 2006, the formal PEB reconsidered the applicant's case and assigned a 20 percent rating for knee pain under the pain policy, 10 percent rating for chronic back pain, and zero percent for shoulder impingement syndrome.  The formal PEB recommended that the applicant be placed on the TDRL with a 30 percent combined disability rating.  On 9 November 2006, the applicant did not concur with the findings and requested another formal hearing.  

15.  The applicant's undated rebuttal to his PEB proceedings provided a summary of his active duty.  The applicant's rebuttal covers his numerous injuries for bi-lateral knees, right shoulder impingement syndrome, arthritic degeneration and back disease due to chronic back pain, lumbar degenerative disc disease, muscle spasm, and an abnormal gait.  The applicant continues that he has been hospitalized for these medical conditions and has exercised with the use of a walking cane.  The applicant adds that his numerous medical problems should be reevaluated based on them worsening with each passing day, and that his record be corrected to show an increase in his disability rating by an additional 40 percent.  

16.  On 6 December 2006, a second formal PEB reaffirmed the finding made on 30 October 2006 to place the applicant on the TDRL with a 30 percent disability rating.  On 15 November 2006 (sic, should read 15 December 2006) the applicant concurred with the finding of 30 percent combined disability rating and being placed on the TDRL with reexamination during January 2008.  

17.  On 4 January 2007, further review of the PEB by the USAPDA shows they found insufficient medical explanations in the MEB proceeding and the applicant's case was returned to the informal PEB for additional information.  
18.  On 8 January 2007, the PEB returned the applicant's case to the MEB for clarification.  On 15 January 2007, the MEB confirmed that there was no evidence of any ROM limitations (mechanical or pain) of the left knee.  

19.  On 19 January 2007, the PEB reconsidered the second formal hearing and rated the applicant at 10 percent for his back under VASRD code 5242, zero percent for his knees under VASRD code 5003, zero percent for his shoulder impingement syndrome under analogous code 5099/5003, and recommended that the applicant be separated with a combined rating of 10 percent, with severance pay.  

20.  On 22 January 2007, the applicant did not concur with the findings and did not submit a written appeal.  He also acknowledged and understood that failure to submit a written appeal could result in final processing of his case without review by HQ, USAPDA.  On 1 February 2007, the applicant elected placement in the Retired Reserve in lieu of separation with severance pay.  

21.  Evidence of record shows that the applicant complained of right shoulder pain after a basketball game.  A medical narrative summary indicated that he had some ROM limitations with abduction to 95 degrees and pain at the upper limits of the ROM.  The medical finding found his condition to be consistent with rotator cuff impingement.  It was also determined that the applicant could not be rated in accordance with any of the normal shoulder ratings as he met none of the criteria for any of the rating percentages.  Record shows that since only one joint was involved and the ROM was not limited by any mechanical factors, the highest possible rating for shoulder impingement was zero percent.  

22.  His record further shows that he complained of back pain from a lifting accident.  Record shows his flexion ROM limitation was 65 degrees due to pain and he had some local tenderness and possible spasms, but no abnormal gait or spinal contour.  It also found no loss of any muscle strength or nerve function in any of the extremities.  Evidence of record shows in order for his conditions to be rated higher it would require his flexion to be below 61 degrees, and his spasms or guarding would have to be severe enough to result in an abnormal gait, or an abnormal spinal contour.  It was determined that the applicant had none of the flexion ROM limitations at that time, but was limited by pain and not ratable. 

23.  Evidence of record shows that the applicant complained of chronic bilateral knee pain with crepitus, positive patella grind, and some ROM restrictions due to pain in the right knee.  It was found that his left knee had no ROM limitations documented.  The applicant was diagnosed with bilateral patella femoral syndrome which was rated at zero percent.
24.  On 4 May 2007, the USAPDA provided an advisory opinion.  The Deputy Commander concluded that the PEB's findings were supported by a preponderance of the evidence, the findings were not arbitrary or capricious, and the findings were not in violation of any statue, directive, or regulation.  

25.  The Deputy Commander continues that the applicant has not provided any evidence that the PEB findings were incorrect.  The Deputy Commander recommends that the applicant's military record remain unchanged.  On 9 May 2007, the applicant was provided a copy of the advisory opinion for review and comment and the applicant has failed to respond. 

26.  Army Regulation 40-501 (Standards of Medical Fitness) governs the medical fitness standards for retention and separation, including retirement.  Paragraph 1-6 states that medical fitness standards cannot be waived by medical examiners or by the examinee.  Examinees initially reported as medically unacceptable by reason of medical unfitness when the medical fitness in chapter 2, 3, 4, or 5 apply, may request a waiver of the medical fitness standards in accordance with the basic administrative directive governing the personnel action.  

27.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and 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.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

28.  Paragraph 3-5 of the PDES regulation contains guidance on rating disabilities.  It states, in pertinent part, that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

29.  Title 10, United States Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
30.  Title 10, United States Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of active Federal service and a disability rated at less than 30 percent.

31.  Title 38, United States Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends that his physical disability rating should be increased. 

2.  Record shows that the applicant had an MEB which diagnosed him as suffering from a right shoulder impingement, lumbar spondylosis, and bilateral patellafemoral syndrome.  These conditions were found to not meet medical retention standards in the Army in accordance with Army Regulation 40-501, Chapter 3.  

3.  The applicant's record shows that he did not concur with the PEB’s findings.  The applicant also failed to provide any medical documentation which warranted changing his record to reflect receipt of a permanent disability rated at 40 percent.  

4.  On 19 January 2007, the PEB rated the applicant with a 10 percent disability rating for his back pain, zero percent rating for his knees, and zero percent rating for his shoulder impingement syndrome and recommended his separation with severance pay.  The applicant's record shows he elected to be placed in the Retired Reserve in lieu of separation with severance pay.

5.  On 19 June 2007, the applicant was released from active duty, not by reason of physical disability, and assigned to the United States Army Reserve (USAR) Control Group (Retired Reserve).
6.  Evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

7.  Based on the foregoing, there is no basis for changing the applicant's disability rating by the Army in this case.  Further, the applicant has failed to submit sufficient evidence which shows the PEB’s rating at the time of his release from active duty was incorrect. 

BOARD VOTE:

_JBG___  _RSV____  _DWS___  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.




_James B. Gunlicks___
          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.