RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 March 2008
	DOCKET NUMBER:  AR20070016174 


	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

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Gerald J. Purcell

Member

Ms. Rea M. Nuppenau

Member

	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 reconsideration of his earlier request to increase his disability rating and, in effect, to change his disability separation to a medical retirement.

2.  The applicant states that he was originally placed on the Temporary Disability Retired List (TDRL) with a 30 percent disability rating.  He has a 50 percent loss of grip and arm strength in his left upper extremities.  He cannot pick up a        six-pack without severe pain shooting from his neck to his hands.  

3.  The applicant provides a letter, dated 9 July 2007, from Physical Therapy Solutions; a letter, dated 18 October 2007, from The Neurosurgery Center; an Authorization for Release of Medical Information from Northrop Grumman; a letter, dated 10 September 2007, from The Neurosurgery Center with attached surgery records; a letter, dated 26 January 2007, from Comprehensive Pain       & Rehabilitation; and his three Physical Evaluation Board (PEB) proceedings.  

4.  Also available is a letter, dated 23 July 2007, from The Neurosurgery Center that was probably meant to be provided with his original case but was received too late.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel states that the (final) PEB’s decision to deny the applicant’s radiculopathy as being “unfit” was due to a lack of sufficient evidence of the motor component in his diagnosis.  The applicant has now submitted ample evidence to support a complete diagnosis of his condition during his service to the present.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060014556 on 24 April 2007.

2.  The applicant was commissioned a second lieutenant in the Army National Guard in May 1977.  He was promoted to lieutenant colonel on 17 November 1997.  He was ordered to active duty on 10 February 2003 and arrived in Iraq/Kuwait on 7 April 2003 where he served as a Deputy Group Commander for an Engineer Group.  He injured his neck in a training accident in October 2003.  He departed Iraq/Kuwait on or about 11 January 2004.  He was retained on active duty for medical processing.

3.  The applicant’s Medical Evaluation Board Narrative Summary is not available.

4.  On 4 August 2004, a PEB found the applicant to be unfit due to left C5-6 radiculopathy, manifested by pain, sensory deficit, and weakness, rated as mild incomplete paralysis, with a 20 percent disability rating, under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 8510; and due to chronic neck pain, status post C5-6 fusion, with cervical range of motion limited  by pain, with localized tenderness, with a 10 percent disability rating, under VASRD code 5241.  The PEB recommended he be placed on the TDRL.  On       1 September 2004, he was released from active duty and placed on the TDRL.

5.  On 27 January 2006, an informal TDRL PEB found the applicant to be unfit due to chronic neck pain, status post C6-7, C5-6 fusions, without significant neurologic abnormality, cervical forward flexion 37 degrees, with a 10 percent disability rating.  His other conditions were found to be not unfitting.  The PEB noted that an EMG/NCV (electromyography and nerve conduction velocity study) of 20 December 2005 had been considered.  The EMG/NCV is not available.  The applicant appealed the findings of the informal PEB.  

6.  On 17 February 2006, Physical Therapy Solutions noted that the applicant was compliant with his home exercises to regain motion in his neck, but he began to notice increasing symptoms in his left arm whenever he performed cervical rotation exercises to the left.  He continued to report problems with pain and weakness in his left arm and hand.  His right dominant grip was 73 pounds and his left grip was 42 pounds.  The normal range of grip strength for a male was    70 – 110 pounds.

7.  On 24 February 2006, a formal TDRL PEB found the applicant unfit for chronic neck pain, status post C6-7, C5-6 fusions, cervical forward flexion         37 degrees with a total combined cervical range of motion less than 170 degrees. He had bilateral carpal tunnel syndrome and had no electrodiagnostic evidence of significant motor abnormality.  The PEB acknowledged a comment (although it was not included in the physician’s impression) that there was a persistent radiculopathy but there was minimal evidence of a motor component to that radiculopathy, which would be necessary for a separate rating for radiculopathy.  The PEB noted that the applicant was working full-time and pursuing a master’s degree.  The PEB recommended that the applicant be separated with severance pay with a 20 percent disability rating.  

8.  The applicant had previously received his notification of eligibility for retired pay at age 60 (his 20-year letter).  He apparently did not accept discharge with severance pay, opting to receive retired pay instead, was removed from the TDRL, and was transferred to the Retired Reserve on an unknown date.

9.  On 8 June 2006, a nerve conduction study showed the applicant had left greater than right median nerve lesions.  (The median nerve is a nerve in the wrist.  A common type of distal median nerve dysfunction is carpal tunnel syndrome, symptoms of which include numbness of the thumb and first two fingers and weakness of the hand.)  An EMG showed no active denervation.  (Dorland’s Illustrated Medical Dictionary, 26th edition, defines “denervation” as “resection of or removal of the nerves to an organ or part.”  It defines “denervate” as “to deprive of a nerve supply.”)

10.  On 7 August 2006, the Department of Veterans Affairs awarded the applicant a 10 percent rating (increased from zero percent) for carpal tunnel syndrome, right upper extremity (i.e., the arm); a 20 percent rating (increased from 10 percent) for carpal tunnel syndrome, left upper extremity; and a            30 percent rating for traumatic degenerative disease, cervical spine, with residual chronic neck pain and radiculopathy of the left arm, post operative cervical forminotomy and discectomy with instrumentation and fusion.

11.  On 7 September 2007, upper extremity girth measurements revealed that the applicant exhibited a 1/2 inch loss of girth in his left distal upper arm; a 3/4 inch loss of girth in his middle forearm; a 69 percent loss of grip strength in his left hand; a 40 percent loss of tip pinch strength in his left hand; and a 49 percent loss of key pinch strength in his left hand.  The examining physician noted that manual muscle strength testing of both upper extremities revealed full muscle strength in all muscles tested, with the exception of a 4/5 muscle grade in the left short heads of the biceps brachii muscle and in the left brachioradialis muscle.  There was slight atrophy present in the left short heads of the biceps brachii and brachioradialis muscles.  He had difficulty performing full power with left forearm supination and left elbow flexion with the forearm supinated.  

12.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The regulation states 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.   

13.  Department of Defense Instruction 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities (VASRD)) notes that the VASRD percentage ratings represent, as far as can practicably be determined, the average impairment in civilian occupational earning capacity resulting from certain diseases and injuries.  Not all the general policy provisions of the VASRD are applicable to the Military Departments.  Many of the policies were written primarily for VA rating boards and are intended to provide guidance under law and policies applicable only to the VA.  This Instruction replaces some sections of the VASRD.

14.  Department of Defense Instruction 1332.39 states, for VASRD codes 8510 through 8730 (Disease of the Peripheral Nerves), that cases that are rated based on residuals should be adjudicated on the basis of impairment of function rather than on anatomical diagnosis.  

15.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

16.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  On 4 August 2004, a PEB found the applicant to be unfit due to left C5-6 radiculopathy, manifested by pain, sensory deficit, and weakness, rated as mild incomplete paralysis, with a 20 percent disability rating, under VASRD code 8510; and chronic neck pain, status post C5-6 fusion, with cervical range of motion limited by pain, with localized tenderness, with a 10 percent disability rating, under VASRD code 5241.  The applicant was thereupon placed on the TDRL.  The Narrative Summary from his Medical Evaluation Board is not available.

2.  On 27 January 2006, an informal TDRL PEB found the applicant to be unfit only due to chronic neck pain, status post C6-7, C5-6 fusions, without significant neurologic abnormality, and recommended he be separated with a 10 percent disability rating.  The PEB noted that an EMG/NCV of 20 December 2005 had been considered, but the EMG/NCV is not available.  His other conditions were found to be not unfitting.  The applicant appealed the findings of the informal PEB.  

3.  On 17 February 2006, Physical Therapy Solutions noted that the applicant began to notice increasing symptoms in his left arm whenever he performed cervical rotation exercises to the left.  He continued to report problems with pain and weakness in his left arm and hand.  His right dominant grip was 73 pounds and his left grip was 42 pounds with the normal range of grip strength for a male being 70 – 110 pounds.  However, there is no substantiation to show that electrodiagnostic evidence resulted in these findings.

4.  On 24 February 2006, a formal TDRL PEB also found the applicant unfit only for chronic neck pain, status post C6-7, C5-6 fusions.  The PEB noted that there was no electrodiagnostic evidence of significant motor abnormality although it acknowledged a comment that there was a persistent radiculopathy, but there was minimal evidence of a motor component to that radiculopathy.  The PEB recommended the applicant be separated with severance pay with a 20 percent disability rating and he was subsequently discharged.  

5.  Less than four months later, a nerve conduction study showed the applicant had left greater than right median nerve lesions, but this condition was probably related to his carpal tunnel syndrome.  In September 2007, upper extremity girth measurements revealed slight atrophy present in the left short heads of the applicant’s biceps brachii and brachioradialis muscles, but that same examination also revealed that he had full muscle strength in all muscles tested with the exception of a 4/5 muscle grade in the left short heads of the biceps brachii muscle and in the left brachioradialis muscle.  

6.  “Slight atrophy” and “4/5 muscle grade” more than a year after the applicant’s discharge do not appear to be significant findings indicative of a motor component to the applicant’s radiculopathy.  There is insufficient evidence to show that the applicant’s being unable to “pick up a six-pack without severe pain shooting from his neck to his hands” is the result of separate nerve damage and not the result of his neck pain.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rtd___  __gjp___  __rmn___  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 to amend the decision of the ABCMR set forth in Docket Number AR20060014556 dated 24 April 2007.




__Richard T. Dunbar___
          CHAIRPERSON




INDEX

CASE ID
AR20070016174
SUFFIX

RECON

DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

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

ISSUES         1.
108.02
2.

3.

4.

5.

6.