IN THE CASE OF:	  

		BOARD DATE:	  17 September 2008

		DOCKET NUMBER:  AR20080007634 


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, that his recommended disability percentage be increased from 30 percent to a higher percentage on his 19 February 2008 physical evaluation board (PEB).

2.  The applicant states his first PEB, dated 7 April 2006, shows his cervical radiculopathy, left dominant, rated mild, but does not mention the right side.  His PEB, dated 19 February 2008, shows right side involvement, but not the left side. He contends both sides should have been included.  Additionally, the PEB should have also listed his carpal tunnel syndrome in both wrists and/or the L5-S1 bulging disc injury.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DA Forms 199 (PEB Proceedings), dated 7 April 2006 and 19 February 2008.

	b.  DA Form 261 (Report of Investigation - Line of Duty and Misconduct Status), dated 21 September 2005.

	c.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 July 2004.

	d.  U.S. Army Physical Disability Agency (USPDA), Washington, D.C. Orders D112-02, dated 3 May 2006; Orders 049-01, dated 18 February 2008; and Orders D081-05, dated 21 March 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he initially enlisted in the Regular Army for a period of 3 years on 1 December 1992.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63H (Track Vehicle Repairer).  He also executed a 4-year reenlistment in the Regular Army on 18 May 1994.  He was discharged on 13 November 1996.

2.  The applicant’s records further show he enlisted in the Georgia Army National Guard (GAARNG) on 2 September 2000 and was awarded MOS 62B (Construction Equipment Repairer).  He was assigned to Company C, 878th Engineer Combat Battalion (Heavy), Lyons, Georgia, and attained the rank/grade of specialist (SPC)/E-4.  

3.  On 15 March 2003, the applicant was ordered to active duty in support of Operation Enduring Freedom and subsequently served in Kuwait/Iraq from 2 June 2003 to 3 June 2004.  He was honorably released from active duty for completion of required active service on 29 July 2004.

4.  The applicant’s records show that he underwent a line of duty (LOD) determination for injury sustained on an unspecified date in April 2003 while in Iraq.  

5.  On 28 November 2005, the LOD determination stated that the applicant suffered an injury for spinal stenosis secondary to C5-C6 herniated disc, L5-S1 disc injury with radiation of pain to low back, left groin, left lower extremity, pain in neck, upper back, and bilateral shoulder secondary to aggravation of low lying cerebellar tonsils.  

6.  On 17 March 2006, the applicant was considered by a medical evaluation board (MEB).  The MEB found that he had chronic pain and paresthesia of the left upper extremity with radiculopathy due to chronic degenerative disc disease and congenital and acquired cervical spinal stenosis, and recommended that he be referred to a PEB.  The applicant agreed with the MEB’s findings and recommendations.  

7.  On 7 April 2006, a PEB convened and found the applicant's condition prevented him from performing his duties and determined that he was physically unfit due to left dominant cervical radiculopathy manifested by pain and weakness and cervical spinal stenosis with cervical range of motion limited by pain with localized tenderness.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 30 percent disability rating for codes 8599 and 8513 and 10 percent disability rating for code 5238.  The PEB recommended that the applicant be placed on the temporary disability retired list (TDRL) with a 30 percent combined disability rating.  The applicant concurred with the PEB’s findings and recommendations and waived his right to a formal hearing in his case.

8.  On 19 February 2008, a PEB convened and reviewed the applicant’s TDRL examination and found that he remained unfit to reasonably perform the duties required by his previous grade and military specialty, due to cervical spinal stenosis with persistent pain which interfered with his ability to perform his military functions and the right (non dominant) upper extremity median range involvement/radiculopathy.  The PEB recommended the applicant be placed on the permanent retired list with a 30 percent combined rating.  Again, the applicant concurred with the PEB’s findings and recommendations and waived his right to a formal hearing in his case.

9.  An advisory opinion was obtained on 16 July 2008 in the processing of this case.  The USAPDA Legal Advisor advised that:

   a.  the 17 March 2006 MEB contained the diagnosis of chronic neck pain and paresthesia and weakness of the left upper extremity.  There was no other listed diagnosis that did not meet medical standards.  The MEB, the medical examinations (DA Form 2807-1 and 2808), and the physical profile did not document any bilateral carpel tunnel syndrome or other bilateral wrist/hand problems.  The applicant concurred with the MEB on 31 March 2007;
   
   b.  the 7 April 2006 informal PEB found the applicant unfit due to his left hand cervical radiculopathy, rated as mild at 20 percent, and cervical spinal stenosis with localized tenderness, rated at 10 percent.  The applicant was granted a 30 percent combined rating and he concurred with the PEB’s findings and waived his right to a formal hearing on 11 April 2006;

	c.  on 6 December 2007, the applicant underwent a TDRL medical reevaluation.  The physical findings revealed no weakness of any extremity to include no weakness or problems with his wrists.  The cervical flexion was noted at 27 degrees.  There was noted a sensory numbness over the thumb, index, and long fingers of the right hand.  There were no deficits noted about the upper left extremity.  There was some evidence of mild compression of the right median sensory nerve and mild compression of the left ulnar sensory nerve.  Image findings indicated some mild disc bulging at the L5-S1 with no herniated nucleus pulpous.  The report noted that the past left upper extremity neurological deficits were now found on the right side.  The applicant concurred with the TDRL medical reevaluation on 18 January 2006;

   d.  the 19 February 2008 PEB found the applicant unfit for cervical range of motion limitations, ratable at 20 percent, and mild right (non dominant) upper extremity median radiculopathy, ratable at 10 percent, for a total of 30 percent combined permanent disability rating.  Again, the applicant concurred with the PEB’s findings and waived his right to a formal hearing on 25 February 2008; and

   e.  the applicant was properly rated and removed from the TDRL in February 2008.  There is no evidence of any bilateral carpal tunnel syndrome or a bulging disc that were found to be unfitting either upon placement on the TDRL or removal from the TDRL.  The mere presence of a condition does not, of itself justify a finding of unfitness because of physical disability and unless found unfit upon placement on the TDRL conditions at removal are not compensable. 

10.  The applicant was furnished with a copy of this advisory opinion on 16 July 2008; however, he failed to respond.

11.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  

12.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and AR 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained an injury that was determined to be “In Line of Duty.” He subsequently underwent an MEB which recommended he be given a PEB.  He concurred with this recommendation.  The PEB considered him for left dominant cervical radiculopathy manifested by pain and weakness and cervical spinal stenosis with cervical range of motion limited by pain with localized tenderness.   The PEB found him to be unfit for further military service and assigned him a disability percentage of 30 percent for his medical conditions and referred him to the TDRL.  Upon reexamination, again, he was found unfit and placed on the PDRL with a 30 percent combined disability rating.  In each instance, the applicant concurred with the findings and recommendations.  

2.  The purpose of TDRL reexaminations is to determine whether a condition has improved or worsened and whether or not the Soldier should be continued on the TDRL, returned to duty, or permanently retired or separated for reason of disability.  The applicant's condition was appropriately considered in determining his disability rating; a rating with which he concurred.

3.  The applicant now believes he should have received a greater percentage disability rating, but has provided no evidence to support this belief or to refute the rating received by the PEB.  The PDES provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank or rating.  

4.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB that he be separated with severance pay.  There is no error or injustice in this case.

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)                                         AR20080007634



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ABCMR Record of Proceedings (cont)                                         AR20080007634



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