IN THE CASE OF:	 

		BOARD DATE:	  21 October 2008

		DOCKET NUMBER:  AR20080010120 


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 that his separation for disability with severance pay be changed to a permanent medical retirement with a 30 percent disability rating.

2.  The applicant states that the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) assigns a 10 percent disability rating to spine conditions with the following symptoms:  “muscle spasm, guarding, or localized tenderness not resulting in abnormal gait.”  He had physical examinations on      2 November 2005 and 6 November 2007 that both document these symptoms.  Therefore, he should have been rated at 10 percent for his neck condition,         10 percent for his mid-to-lower back condition, and 10 percent for his arthritis, for a total rating of 30 percent, and he should have received a medical retirement with a 30 percent disability rating.  

3.  The applicant states that the formal Physical Evaluation Board (PEB) cited a 10 May 2007 Report of Medical Examination and a 30 August 2007 addendum to Medical Evaluation Board (MEBD) as support for its decision that “the preponderance of the evidence does not support a higher rating.”  He states that neither of these medical reports was based on actual physical examinations.  On 10 May 2007, Doctor B___ deferred his examination to Doctor D___, an orthopedic specialist because his conditions were orthopedic in nature.  For his 30 August 2007 addendum, Doctor D___ likewise did not examine him at that time but referred back to his 10 May 2007 examination in a “hasty response to the PEB’s request for clarification of Doctor D___’s original MEBD addendum.  Because the PEB based it's “preponderance of the evidence” finding on two examinations that did not occur, its ruling was in error.
4.  The applicant states that in its 26 November 2007 response to his appeal, the U. S. Army Physical Disability Agency (USAPDA) did no further investigating and dismissed his account of the nature of his contact with Doctors B___ and D___.  However, the USAPDA still failed to address the central issues of fact; that is, that Doctor B___ never examined him on 10 May 2007 and Doctor D___ did not conduct an examination on 30 August 2007.  The PEB dismissed the most recent and arguably most relevant and thorough examination report by Doctor D___    (6 November 2007) by declaring that they did not ask for that examination.  However, there is no regulation or policy indicating that medical examinations conducted by Army physicians are relevant only when requested by the PEB.  On the contrary, Soldiers are authorized to provide new medical evidence to the PEB in accordance with Department of Defense Instruction 1332.38, paragraph E2.1.14.

5.  The applicant states that the PEB also denied his request for a new hearing to clarify the circumstances of those medical examinations.  Doctor D___ was originally scheduled to provide sworn testimony at the formal PEB hearing; however, at the time of the hearing he was not available.  To date, neither Doctor D___ nor Doctor B___ has been provided the opportunity to orally clarify the circumstances of their examination.

6.  The applicant states that under the 2008 National Defense Authorization Act review of cases by the USAPDA, he was “rated at 10 percent for minor reduction in functional ability due to pain” for his chronic neck pain.  However, his neck should have been rated at 10 percent prior to that for the documented tenderness to palpation and guarding.  Further, the USAPDA’s review still missed the 10 percent that should have been awarded for his mid- and lower-back pain due to tenderness to palpation and guarding.

7.  The applicant states that a recent, 13 March 2008, Neurological Evaluation revealed more extensive nerve issues than previously known, as well as evidence of a possible past broken bone in his back.  Since that evaluation recommends further neurologic testing and consults it appears that his file might not have been “ripe” for PEB adjudication in the first place.  If this is the case, the most appropriate disposition may in fact be to return his file for a new MEBD workup before determining his PEB disability rating.

8.  The applicant states that Army Regulation 635-40, paragraph “4-1(m)(2)” (i.e., paragraph 4-21m(2)), states an effort should be made to obtain the best evidence reasonably available, considering factors such as time, importance, and expense as well as the availability and reliability of substitute evidence.  In his case, the best evidence is Doctor D___’s 6 November 2007 physical examination report, which notes the required symptoms for 10 percent ratings for his neck and back.  It was his most recent medical report; it was dictated subsequent to a contemporaneous medical examination; and it was the most thorough report as far as addressing the absence or presence of those neck and back symptoms required for 10 percent ratings.

9.  The applicant states that Army Regulation 635-40, paragraph 3-2(a)(5), states, “In the absence of such proof by the preponderance of the evidence, reasonable doubt should be resolved in favor of the Soldier.”  In his case, even assuming that all four medical reports were valid and based on actual examinations, the PEB should have awarded him 10 percent ratings for his neck and mid- to lower-back pain.  That resolution would have been in his favor.  Paragraph 4-19 states that PEB decisions should be based on a preponderance of the evidence.  His most recent medical examination was conducted by a qualified Army physician and documented symptoms which supported 10 percent ratings for his neck and back.  The only evidence contradicting the findings of that medical examination was unreliable because it was not based on actual recent physical examinations.  Under those circumstances, the preponderance of the evidence supported a determination that he has symptoms supporting
10 percent ratings for his neck and back.

10.  The applicant provides the 17 exhibits listed as Exhibits A through Q with his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant entered active duty as an infantry second lieutenant on 3 June 1995.  On or about 23 April 2003, he was assigned to the U. S. Military Academy, Staff and Faculty, as an Assistant Director/
Instructor with the Military Enhancement Program.  Duties included conducting team and individual mental skills training for the members of over 20 intercollegiate teams, clubs, cadet companies, and military units and included being the liaison to the football, basketball, and baseball teams.

2.  On 2 November 2005, the applicant was evaluated for chronic mid-back pain as well as bilateral upper extremity and occasional lower extremity numbness and tingling.  A physical examination revealed there was no visible atrophy of the musculature of the neck, but he was tender to palpation over the neck, trapezial, and peri-scapular musculature; he had range of motion (ROM) in all planes including flexion, extension, lateral bending, and rotation without pain; he had 5/5 motor strength of all motor groups of bilateral upper extremities both proximally and distally; he had normal sensation of bilateral upper extremities in all dermatomes; he had symmetric deep tendon reflexes in bilateral biceps, triceps, and brachioradialis; he had full range of motion of bilateral shoulders with no evidence of impingement; and there was no visible atrophy of the thoracic musculature, but he was very tender to palpation over the interspinous ligaments of the thoracic spine from about T4 to T8.

3.  The impressions were cervical spinal stenosis; syringomyelia versus myelomalacia most likely secondary to an old spinal cord injury as a football player, and thoracic muscle strain.  The applicant was referred to pain service.

4.  The applicant’s MEBD physical examination, dated 10 May 2007 and conducted by Doctor B___, noted only “osteoarthritis, multiple sites.”

5.  The applicant’s MEBD Narrative Summary (NARSUM) is not available.  An MEBD addendum, prepared by Doctor D___ on 14 May 2007, stated in part that an MRI (magnetic resonance imaging) revealed no significant degenerative osteophyte complexes or disk bulges at C7/T1.  In the thoracic spine at T3/T5 through T6/T7, all were within normal limits.  At T7/T8 there was a small paracentral disk protrusion which displaced the spinal cord laterally to the left.  The cord signal was normal at the level of the small protrusion.  At T8/T9 there was a small right paracentral disk protrusion which only mildly displaced the spinal cord laterally to the left.  At T9/T10 there was mild left end plate hypertrophy, which mildly narrowed the left neural foramina and might compress the exiting left T9 nerve route.  At T10/T11 there was a right large lateral bridging osteophyte with moderate narrowing of the right neural foramina, which might compress the exiting right T10 nerve route.  At T11/T12 there was an inferior T11 end plate Schmorl node with an associated right mild lateral disk bulge, which narrowed the right neural foramen and could encroach upon the exiting T11 nerve route.  T12/L1 was within normal limits.

6.  The MEBD addendum’s final impression was C spine and T spine multifocal degenerative disk disease noted on the MRIs throughout the cervical and thoracic disk space levels.  The most striking findings were a short segment of mild cervical cord myelopathy secondary to small focal disk protrusion at the C4/C5 level.  T spine routine AP (acronym unknown) and lateral x-rays had no significant osteoarthritic changes noted within the C spine; however, there were prominent bridging lateral osteophytes at T10/T11 with diffuse, mild degenerative disk disease and an otherwise unremarkable T spine.  


7.  On 6 August 2007, the PEB returned the applicant’s case for additional actions and/or information:

     a.  Review the USAPDA guidance on measuring ROM in joints and the spine. The examining physician must note if there is tenderness to palpation, guarding, spasm or an antalgic gait secondary to the thoracolumbar spine, or tenderness to palpation, spasm, and/or guarding of the cervical spine;

     b.  Was there cervical or thoracolumbar radiculopathy;

     c.  Provide muscle strength of both upper and lower extremities.  Needed flexion and extension of hips, knees, and elbows as well as dorsiflexion of the foot, plantarflexion, extension of the wrist, and palmarflexion;

     d.  The current ROM studies noted mechanical limitations of the bilateral ankles, bilateral knees, and right shoulder.  The diagnosing physician must note the specific cause of the mechanical block for each of those joints;

     e.  In addition, joints in the paired extremities must be compared to assess the normal ROM for the specific individual.  A ROM of the left shoulder was required. The NARSUM noted full ROM of both shoulders;

     f.  Hand dominance was requested; and

     g.  The performance data to date indicated that the applicant’s conditions did not hinder performance in his current assignment.  His most recent Officer Evaluation Report was requested.  The unit commander did not discuss how those conditions limited his current duty performance, nor did he discuss how those imitations (if any) would limit his overall unit performance or successful accomplishment.

8.  An MEBD addendum, dated 30 August 2007, stated there was no tenderness to palpation, guarding, spasm or presence of an antalgic gait with regard to the lumbar and cervical spine examination.  In addition, there was no radiculopathy noted on either the cervical or thoracolumbar spine.  Muscle strength throughout the upper and lower extremities was symmetric bilaterally and rated at 5/5.  Hip, knees, and elbows had symmetric, full active and passive ROMs with no deficits noted.  The left shoulder in addition had a full active and passive ROM (symmetric to the right shoulder).  Hand dominance was right handed.

9.  An MEBD addendum, dated 6 November 2007, indicated Doctor D___ gave the applicant an updated orthopedic examination, focusing on his neck and thoracic back pain.  The applicant had pain with palpation of the soft tissues and musculature about his cervical neck.  He had pain with all rotatory, side-bending, and flexion-extension movements.  There was positive guarding as well with any resisted motion in any plane of neck motion.  He had positive paresthesias into bilateral upper extremities with numbness and tingling extending down each area to the hands with neck extension.  Maximal neck and back extension caused the paresthesias to extend distally to bilateral lower extremities to include both feet.  His cervical active ROM was markedly limited due to pain.  His thoracic back pain was most notable today as in the past at the T7-T8 levels.  The pain was localized to the paraspinal musculature and was positive with both superficial and deep palpation.

10.  The addendum continued that the applicant began to complain of numbness and tingling extending down into the bilateral lower extremities upon standing for as little as two minutes along with positive muscular spasms in the thoracic back region.  Actively lifting his arms about shoulder height exacerbated the thoracic back pain.  His thoracic back motion was similarly limited as was his cervical motion.  A local orthopedic surgeon had administered local steroid injections to the back region with limited temporal success.  The applicant could be a candidate for successive back injections in the near future to help manage his chronic back pain.  

11.  On 15 November 2007, a formal PEB found the applicant to be unfit due to:

VASRD code 5003:  arthritis of the right acromioclavicular joint and arthritis talar neck on the right, and he was rated for arthritis of two major joints (10 percent); 

VASRD code 5237:  chronic neck pain with imaging noting C2/C3, C3/C4, and C4/C5 degenerative disc disease with disc protrusion at C4/C5 level but no herniation noted, ROM limited by pain, no radiculopathy, no tenderness to palpation, no guarding and no spasm and the gait was normal per the MEBD NARSUM physical examination, the DD Form 2808 (Report of Medical Examination) dated 10 May 2007, and the MEBD addendum dated 30 August 2007 (zero percent).  The PEB noted that although tenderness and guarding were noted on the 6 November 2007 addendum, the preponderance of the evidence did not support a higher rating.  Motor strength was 5/5 for the upper extremities and there was no problem with sensation; and 

VASRD code 5237:  chronic mid- and lower-back with degenerative disc disease T7/T8 and Schmorl’s noted T11/T12.  He could forward flex to 100 degrees, the motor strength in the lower extremities was 5/5, no tenderness to palpation, no guarding and no spasm and the gait was normal per the MEBD NARSUM physical examination, the DD Form 2808 dated 10 May 2007, and the MEBD addendum dated          30 August 2007 (zero percent).  The PEB noted that although tenderness and guarding were noted on the 6 November 2007 addendum, the preponderance of the evidence did not support a higher rating (zero percent).

12.  The formal PEB recommended the applicant be discharged with a              10 percent disability rating.  

13.  In a memorandum to the PEB, dated 16 November 2007, the applicant noted that in November 2005 an orthopedic spine specialist noted that an MRI of his spinal cord between C4-C6 looked dead and also reported that his spine from  T4 to T8 had degenerative disc disease and tenderness to palpation over the interspinous ligaments.  He also noted that Doctor D___’s 30 August 2007 addendum was in response to a list of questions posed to him by the PEB.  According to Doctor D___, he answered the questions in haste.  Therefore, the PEB requested Doctor D___ perform another physical on him.  As noted in the   6 November 2007 MEBD addendum, Doctor D___ reported tenderness to palpation, guarding, decreased ROM with extension of neck, and numbness and tingling radiating to his arms and feet.  In addition, Doctor D___ reported tenderness to palpation, guarding, and spasms in the thoracic area.

14.  On 26 November 2007, the applicant appealed the findings and recommendation of the formal PEB.  His appeal consisted of the arguments he noted in THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE, section, above.

15.  On 6 December 2007, the PEB responded to the applicant’s appeal.  The PEB noted that the narrative description of the physical examination included in the NARSUM, dictated by Doctor D___, was extremely detailed and described tenderness to palpation about the right acromiovlavicular joint but did not mention any such findings relating to the back or the neck.  Rather than simply assume that the absence of any mention of tenderness, spasm, or guarding of the back or neck meant that they were not present on examination, the PEB requested clarification by the MEBD.  Doctor D___ provided the clarification in his addendum, dated 30 August 2007, in which he stated, “There is no tenderness to palpation, guarding, spasm or presence of antalgic gait with regards to the lumbar and cervical spine examination.”  

16.  The PEB noted that the addendum was prepared by Doctor D___ in response to questions posed by the PEB, and there was no evidence that the addendum was answered “in haste.”  The addendum clarified a prior examination in which Doctor D___’s record was not sufficiently clear in order for the PEB to make a final determination with respect to a rating.  Doctor D___’s reply, that “There is no tenderness to palpation, guarding spasm or presence of antalgic gait with regards to the lumbar and cervical spine examination” was considered to be unambiguous and all that was necessary to reach a final determination.  The PEB noted that Doctor D___, in the 6 November 2007 examination, stated that the applicant complained of muscle spasms in the thoracic back region, not that he personally observed or objectively felt any such spasms.  The PEB noted that there was no evidence of paraspinal muscle spasm having been objectively documented on examination.  

17.  On 26 December 2007, the USAPDA noted the applicant’s disagreement with the findings of the PEB and reviewed his entire case.  The USAPDA concluded that his case was properly adjudicated by the PEB.  

18.  The applicant’s Officer Evaluation Report for the period 1 August 2007 through 28 February 2008, during which period he performed the duties of Director, Military Enhancement Program, indicated that he continued his incredible performance as the developer and implementer of the Army’s Center for Enhanced Performance Program.  In addition to his work for the Army, he continued to refine the performance enhancement program for the Academy’s Division 1A Football program, making it the most comprehensive in the country.  His rater noted that the applicant had unlimited potential that would be applied to anything he did and, “…continue to give him the toughest missions – he will get them done!”  His senior rated noted, “…Boundless energy, incredible ideas and  passion for helping cadets and soldiers…Unlimited potential – should be a battalion commander now.”

19.  On 4 March 2008, the USAPDA corrected the findings of the formal PEB to award the applicant a 10 percent disability rating for minor reduction in the functional ability of his neck due to pain.  The applicant’s back condition was still rated at zero percent, and he was approved for separation with severance pay and a 20 percent disability rating.  

20.  On 18 March 2008, the applicant was discharged for disability, with severance pay.  

21.  Title 10, U. S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of active service and a disability rated at less than 30 percent.  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

22.  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.  Appendix B prohibits pyramiding.  Pyramiding is the term used to describe the application of more than one rating on any area or system of the body when the total functional impairment of that area or system can be reflected under a single code.  All diagnoses that contribute to total functional impairment of any area or system of the body will be merged with the principal diagnosis for rating purposes.

23.  Army Regulation 635-40, paragraph 4-18b, states the PEB may return a case to the medical treatment facility commander for additional information.  When return of the case is necessary, the reason for its return will be clearly stated in the letter of transmittal.  Several examples of reasons for which a case may be returned are listed, to include:  (1) further physical examination, clarification, or preparation of additional records is required; (2) additional description and information by the medical board of the Soldier’s defects and their effect on the soldier’s functional ability to perform duty are necessary for proper PEB evaluation of the case

24.  Army Regulation 635-40, paragraph 4-21m(2), states an effort should be made to obtain the best evidence reasonably available, considering factors such as time, importance, and expense as well as the availability and reliability of substitute evidence.

25.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

26.  The VASRD states, for diagnostic codes 5235 to 5243 (general rating formula for diseases and injuries of the spine), a 10 percent rating will be given when “forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine…or, combined range of motion of the thoracolumbar spine greater…or, combined range of motion of the cervical spine…or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 5 percent or more of the height.”


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been rated at 10 percent for his neck condition, 10 percent for his mid-to-lower back condition, and 10 percent for his arthritis, for a total rating of 30 percent.  

2.  The applicant contended that the formal PEB cited a 10 May 2007 Report of Medical Examination and a 30 August 2007 addendum to MEBD as support for its decision that “the preponderance of the evidence does not support a higher rating.”  He contended that neither of those medical reports was based on actual physical examinations.  

3.  The applicant provides no evidence to show that Doctor B___ did not perform a physical examination on him.  It is reasonable to believe, however, that Doctor B___ deferred to Doctor D___, as an orthopedic specialist because the applicant’s conditions were orthopedic in nature, for a detailed and orthopedic- specific examination.  

4.  However, it appears that Doctor D___’s 30 August 2007 addendum was not meant to be based on a new physical examination.  In accordance with Army Regulation 635-40, paragraph 4-18b, the PEB returned the applicant’s case for clarification.  The PEB asked for clarification/additional information in seven different areas; however, it did not specifically request a further physical examination.  Therefore, it was entirely appropriate for Doctor D___ to have only expanded on his original examination.  There is no evidence to show he made a “hasty” response to the PEB’s request for clarification/additional information.     

5.  The applicant contended that there is no regulation or policy indicating that medical examinations conducted by Army physicians are relevant only when requested by the PEB and that therefore the PEB should have accepted the       6 November 2007 examination as the most relevant.  He contended that Army Regulation 635-40, paragraph 4-21m(2)), states an effort should be made to obtain the best evidence reasonably available, considering factors such as time, importance, and expense as well as the availability and reliability of substitute evidence.  He contended that, in his case, the best evidence was Doctor D___’s 6 November 2007 physical examination report, which noted the required symptoms for 10 percent ratings for his neck and back.  

6.  Army Regulation 635-40, paragraph 4-21m(2)), does states that an effort should be made to obtain the best evidence reasonably available, considering factors such as time, importance, and expense as well as the availability and reliability of substitute evidence.  However, there is reasonable doubt that the     6 November 2007 examination was the most reliable.  
7.  The NARSUM is not available; however, it is presumed that the PEB’s response to the applicant’s rebuttal correctly indicated what was noted in the NARSUM (i.e., that the NARSUM as dictated by Doctor D___ was extremely detailed and described tenderness to palpation about the right acromiovlavicular joint but did not mention any such findings relating to the back or the neck).   Doctor D___’s clarification, dated 30 August 2007, then noted that there was no tenderness to palpation, guarding, spasm or presence of antalgic gait with regards to the lumbar and cervical spine examination.  The 6 November 2007 addendum noted that the applicant’s back pain was positive with both superficial and deep palpation, but Doctor D___ did not note that he felt any tenderness.  He did not note that he observed any muscle spasms or guarding.

8.  It appears that the PEB correctly determined that the preponderance of the evidence failed to indicate the conditions that might have warranted rating the applicant’s back condition at 10 percent.

9.  The applicant contended that the PEB also denied his request for a new hearing to clarify the circumstances of those medical examinations; that Doctor D___ was originally scheduled to provide sworn testimony at the formal PEB hearing, but he was not available; and that to date neither Doctor D___ nor Doctor B___ had been provided the opportunity to orally clarify the circumstances of their examination.

10.  The applicant certainly would have been within his right to have Doctors D___ and B___ testify at his PEB; however, he does not explain what he would have expected the doctors to testify about.  It is presumed that they had already fully documented and described the applicant’s symptoms, the results of tests, and their diagnoses.  It is not reasonable to believe that either doctor would have testified to the effect that “he found/diagnosed that but had actually meant that he found/diagnosed this.”

11.  The applicant contended that his neck was rated at 10 percent for minor reduction in functional ability due to pain, but it should have been rated at           10 percent prior to that for the documented tenderness to palpation and guarding.  Such a dual rating would have been pyramiding, prohibited by the governing regulation.

12.  Based upon the medical evidence of record and the applicant’s Officer Evaluation Report for the period 1 August 2007 through 28 February 2008, it appears the PEB fairly and accurately rated his disabilities.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  ___XX_____  ____XX____  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.



      _______XXXX_______________
               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)                                         AR20080010120



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ABCMR Record of Proceedings (cont)                                         AR20080010120



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