IN THE CASE OF:	  

		BOARD DATE:	       20 November 2008

		DOCKET NUMBER:  AR20080006851 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his military records to show that he was 50 percent physically disabled at the time of his release from active duty and transfer to the Retired Reserve.

2.  The applicant states, in effect, that the Physical Evaluation Board (PEB) did not properly rate his disability in accordance with the Veterans Administration Schedule for Rating Disabilities (VSARD) as directed by Department of Defense (DOD) letter dated 14 November 1996.  He further states that the PEB did not consider a signed statement made by a flight surgeon (Colonel W___) who witnessed his exacerbating episode.  In a two-page letter the applicant provides the following contentions and/or arguments:

	a.   that this application will establish his entitlement to a second evaluation of his spinal injury and the resulting mechanical limitations upon his range of motion (ROM);

   b.  that the legal advisor, United States Army Physical Disability Agency (USAPDA), in an e-mail sent out in February 2008, referred to mechanical ROM rating;

   c.  that the United States Army was not following the VASRD as directed by DOD, resulting in the USAPDA rescinding the policies that allowed the Army to use modified rating criteria to rate unfitting physical disability conditions and award lower ratings; and
   
	d.  that his physical disability rating reflects 20 percent for his spine, 20 percent for his shoulder, and 10 percent for his bilateral knees, with an overall rating of 50 percent.

3.  The applicant provides, in support of his application, documentation relating to the physical disability rating of his spine and shoulder, a copy of the USAPDA directive, and PEB rating.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a chief warrant officer four with 28 years, 7 months, and 15 days of creditable service for retirement.  Effective 11 August  2006, he was separated from the Pennsylvania Army National Guard and transferred to the United States Army Reserve (USAR) Control Group (Retired Reserve). 

2.  On 11 July 2006, the flight surgeon (Colonel W___) wrote that he had witnessed and was subsequently personally involved in the evaluation of the applicant's low back signs and symptoms.  During a flight in July 2005, the applicant developed significant right side low back pain with radiating pain into his right leg.  These symptoms were of such extent that he had difficulties with egress from the aircraft after landing.  The flight surgeon evaluated the applicant and detected objective evidence of his pathology (radiographic evidence of significant degrenerative joint disease of the low back).  The flight surgeon further stated that degenerative joint disease of the low back is a condition typically progressive in nature and frequently exacerbated by aviation duties.  The applicant's condition is clearly chronic and has been associated with significant objective evidence of pathology.  From an aeromedical standpoint, his symptoms are disabling for continued aviation service.  

3.  On 12 July 2006, a formal PEB convened to evaluate the applicant's physical condition.  The applicant's chronic back pain due to degenerative disc disease with S1 joint arthritis, without neurological abnormality or thoracolumbar ROM limited by pain, with localized tenderness, was rated at 10 percent disabling.  The applicant's bilateral knee pain due to osteoarthritis, without limitation of motion, was rated at 10 percent disabling.  The applicant's chronic pain of his left shoulder, without limitation of motion due to impingement, was rated at zero percent disabling.  The proceedings indicate that the PEB reevaluated all available medical records and the sworn testimony of the applicant.  The PEB found the applicant physically unfit to perform the duties required by his grade and military occupational specialty (MOS).  The PEB awarded the applicant an overall physical disability rating of 20 percent and recommended that he be 
separated with severance pay if otherwise qualified.  The proceedings show that one of the six exhibits was a memorandum from the flight surgeon (Colonel W____).

4.   The Department of Veterans Affairs (VA) rendered the applicant an overall disability rating of 60 percent, effective 11 August 2006.  The VA based its overall rating on the following individual disability ratings: 

	a.   Cervical spine degenerative disc disease (20 percent);

	b.  Thoracolumbar spine degenerative disc disease (10 percent);

	c.  Left shoulder impingement syndrome with acromioclavicular separation, status post arthrogram surgical procedure (10 percent);

	d.  Right shoulder sprain (10 percent);

	e.  Left knee degenerative joint disease, status post arthroscopy surgery
(10 percent);

	f.  Right knee degenerative joint disease, status post arthroscopy surgery
(10 percent);

	g.  Tinnitus (10 percent);

	h.  Hypothyroidism with multinodular goiter (10 percent);

	i.  Bilateral hearing loss (Zero percent);

	j.  Hypertension (Zero percent); and

	k.  Non-malignant lipoma on the right shoulder (Zero percent).

5.  In the processing of this case an advisory opinion, dated 12 June 2008, was obtained from the Agency Legal Advisor, USAPDA.  It states that the applicant was evaluated by a Medical Evaluation Board (MEB) on 26 May 2006.  The MEB listed the following diagnoses:  (1) back pain - degenerative disc disease; (2) knee pain; (3) back pain - S1 joint arthritis; (4) left shoulder pain - consistent with impingement syndrome.  The MEB also listed plantar fasciitis as being medically acceptable.  The MEB physical findings of the applicant's back noted that there was no specific trauma or acute injury related to the applicant's back pain.  There was tenderness to palpation at his lumbar area, but he had full strength on all 
extremities with no atrophy.  He could heel and toe walk normally and all sensations were intact.  The ROM of his back revealed flexion to be 60 degrees with "motion limited by pain."  Radiology revealed degenerative joint disease (DJD) of the spine and knees.  The applicant's knees were painful, but had full ROM with mild effusion.  His left shoulder had full ROM with full strength and was neurovascular intact.  There were some mild degenerative changes noted.  The applicant concurred with the MEB findings on 19 June 2006. 

6.  The advisory opinion further stated that on 20 June 2006, an informal 
PEB found the applicant physically unfit due to his back (10 percent), knee 
(10 percent), and shoulder (zero percent) conditions.  The applicant non-concurred and requested a formal hearing.

7.  The advisory opinion also stated that on 12 July 2006, a formal PEB affirmed the informal PEB's findings and recommended separation with severance pay.  The applicant provided a statement to the PEB requesting a 20 percent disability rating for his back due to ROM limitations and a statement from a flight surgeon who observed complaints of low back pain during a flight in July 2005 with subsequent examination revealing DJD of the spine.  The applicant contended that the PEB was not following all the applicable rules related to rating ROM limitations in accordance with the rules of the VA and the PEB was not authorized to use the provisions of Army Regulation (AR) 635-40, which requires a mechanical basis for ROM limitations.  The PEB considered all of these factors offered by the applicant, but found that the PEB had properly decided the case based on the existing guidance and regulations then in existence.  The applicant had the option to either accept the severance pay or to be transferred to the Retired Reserve.  He waived receipt of severance pay and was transferred to the Retired Reserve.

8.  The advisory opinion stated that DOD Instruction (DODI) 1332.39,6,1, indicates that the VA rating code is "primarily used as a guide" for rating Soldier's conditions that are found unfitting.  However, not all aspects of the rating code are to be used and 1332.39 contain significant guidance, explanations, and alternate rating guidance not found in the VA rating code.  Section E2.A1.13.1, DODI 1332.39 requires that when rating joints for limitation of motion where DJD is present requires "objective" evidence of that limitation, plus radiographic evidence.  The radiographic evidence is not considered the objective evidence required for such ratings.  Although relating to past VA back criteria, the DODI 1332.39 criteria for rating backs found at E2.A1.1.19, required "objective" evidence of specific findings to warrant higher ratings.   AR 635-40, paragraph
B-29e, guidance simply continued the DODI guidance that certain ratings for backs and ROM be established by objective evidence and not by subjective 
complaints of pain alone.  If the applicant's back condition was medically determined to have DJD to such an extent that the DJD was the reason that his lumbar joints could not flex beyond 60 degrees, then the applicant would be entitled to a 20 percent disability rating in accordance with the VA general rating formula for diseases and injuries of the spine.  However, the applicant's medical evidence did not support such a finding.  The DODI and AR requirements relate to what kinds of evidence are acceptable when rating under the VA code and are not in violation of the DOD guidance or statute.  The applicant's reference to the 29 January 2008 NDAA provisions which require changes to ratings and procedures only mandated changes from that date forward.  Congress did not authorize retrospective application.  The PEB's rating for the spine in 2006 was correct and supportable in accordance with all applicable statutes, directives and regulations at that time.  

9.  The advisory opinion stated that the applicant's disability rating for his bilateral knees for DJD was correct at 10 percent since the medical evidence indicated that there were no ratable ROM limits.  His shoulder impingement was rated analogous to DJD, based on the Table of Analogous Codes, USAPDA Policy Memorandum Number 12, and since there was only one joint involved, with no ROM limits, it was properly rated at zero percent.

10.  The advisory opinion recommended that the applicant's military records remain unchanged.

11.  The applicant rebutted the advisory opinion, stating that he spoke with a lieutenant colonel at the PEB who told him that the PEB was required to review all cases for the previous 90 days.  He further states that according to his legal counsel, an average ROM is to be used for determining the ROM rating and his average is 57 degrees.  The applicant also quotes, in part, the radiology report for his spine saying that there are three major joint groups involved and that the pain is only localized if you consider the entire spine as local.  With regard to the requirement for "objective" evidence, he contends that the flight surgeon's observation of his incapacitating incident is objective medical evidence.  The applicant states that paragraph two of the advisory opinion contradicts the findings of the MEB which states, "Due to the Soldier's shoulder symptoms, he has difficulty performing certain maneuvers required to operate an aircraft.  While his symptoms may improve with ongoing therapy, he may need surgical intervention in the future."  The applicant says that he had no strength with his arm above shoulder level and his commander wrote a letter at the time stating that he had limited ROM with his arm above shoulder level.  Lastly, he contends that because the Army did not perform shoulder surgery, he had to pay to have the needed surgery and that the VA had rated his shoulder movement at less than 40 degrees with limited strength.  
12.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 
30 percent disabling.  It further provides at section 1201, for the physical disability retirement of a member who has an impairment rated at least 
30 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the PEB did not consider the memorandum written by the flight surgeon (COL W___) is not supported by the available evidence.  The subject memorandum was included as an exhibit to the formal PEB proceedings.

2.  The advisory opinion from the USAPDA clearly states that, if the applicant's back condition was medically determined to have DJD to such an extent that the DJD was the reason that his lumbar joints could not flex beyond 60 degrees, then the applicant would be entitled to a 20 percent disability rating in accordance with the VA general rating formula for diseases and injuries of the spine.  However, the medical evidence did not support such a finding.

3.  A disability rating is not based solely upon the existence of a physical defect, but rather upon the extent to which the defect hampers the individual performance of duty.

4.  The applicant has not provided any new evidence that was not previously considered by the PEB.  Furthermore, the applicant's argument is not sufficient to overcome the evaluation of the PEB and review by the USAPDA.

5.  Furthermore, the applicant has not provided sufficiently convincing evidence or argument showing that the PEB failed to properly rate his physical disabilities.

6.  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 the aforementioned requirement.

7.  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

___X____  ___X____  ___X____  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.



      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006851



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ABCMR Record of Proceedings (cont)                                         AR20080006851



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