IN THE CASE OF:	  

		BOARD DATE:	  7 May 2009

		DOCKET NUMBER:  AR20080010257 


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 all of his medical conditions be properly evaluated by both a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) and that he be granted a minimum 30 percent (%) disability rating.

2.  The applicant states, in effect, that none of his medical conditions, primarily his “major depressive disorder,” were evaluated by the MEB; therefore, they were not rated by the PEB.  He believes the Army selectively chose to evaluate those conditions that would allow him to be assigned a lower disability rating.  He indicates he is permanently disabled and requests that consideration be given to all of his conditions.  

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; Commander Performance Statement for PEB, dated 17 April 2006; MEB Proceedings with associated medical records, dated 21 May 2006; MEB Notification, dated 3 April 2006; MEB Narrative Summary (NARSUM); DA Form 2808 (Report of Medical Examination); DD Form 2807-1 (Report of Medical History); DA Form 2697 (Report of Medical Assessment); Standard Forms 600 (Chronological Records of Medical Care), dated 17 and    18 April 2006; Patient Lab Inquiry; DA Form 4700 (Supplemental Medical Data); DD Form 2216E (Hearing CC Ervation Data); Medication Profile; DD Form 3349 (Physical Profile); Personal Statement for PEB, dated 2 June 2006; MEB Addendum; PEB Proceedings, dated 17 July 2006; PEB Rebuttal; Member of Congress Letter; Self-Authored Statement for PEB, dated 2 June 2006; and Department of Veterans Affairs (VA) Rating Decision, dated 16 October 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army and entered active duty on 29 July 2004.  He was trained in, awarded, and served in military occupational specialty (MOS) 19K (MI Armor Crewman).

2.  On 8 May 2006, the applicant was seen by a urologist at Darnell Army Community Hospital (DACH), Fort Hood, TX, for left testicle pain.  An MEB NARSUM subsequently prepared by the urology staff, shows the applicant was diagnosed to have a small left hydrocele testicular condition and he was found to be qualified for military service in accordance with Army Regulation 40-501.

3.  An MEB NARSUM prepared by the Orthopedic Staff, DACH, on 18 May 2006, shows the applicant injured his lower back during a Fireman Carrying Training exercise when he stepped into a ditch causing instant left sided back pain which radiated down to his left leg.  It also shows that the pain had become constant in his lower back ranging from dull to sharp radiating into his left buttocks and left posterior leg.  It further indicates that since July 2005, the applicant experienced some numbness and tingling of his left leg and toes which is aggravated by running and any impact activities.  He also experienced frequent muscle spasms in his mid to lower back and upper buttocks.  The final diagnosis shows “degenerative joint disease of lumbar spine, L4-5 and L5-S1.”  It was also noted at that time that the applicant was unable to fulfill the requirements of his MOS.

4.  On 21 May 2006, an MEB diagnosed the applicant with (1) degenerative joint disease of the lumbar spine L-4 and L5-S1; (2) left orchialgia (with no anatomic abnormality); and (3) left side hydrocele.  Diagnoses 1 and 2 were found to be medically unacceptable while diagnosis 3 was determined to be medically acceptable.

5.  On 2 June 2006, the applicant submitted a memorandum to the President of the PEB, in which he responded to the MEB Proceedings and the NARSUM.  He claimed he was denied access to all the MEB documents and sufficient time to prepare an appeal.  He also cited Army Regulation 40-400, Chapter 7-20, and stated that there was no correlation between the NARSUM terminology and the VA Physician’s Guide for Disability Evaluation Examinations and the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), in that it does not include the range of motion (ROM) measurements, back spasm issues or contain the VASRD criteria in paragraph 4.40 and 4.45 that are critical for properly assigning disability ratings for conditions involving joints and functional loss.  

6.  The applicant also stated that in accordance with Army Regulation 635-40, Paragraph 4-11, in describing a Soldier’s condition , a medical diagnosis alone minus its history, objective findings on examination, results of X-ray, laboratory test, reports of consultations, response to therapy, and subjective conclusions with rationale are not sufficient to establish that an individual is unfit.  He also indicated there were unanswered questions regarding additional medical conditions that needed to be evaluated.  He also expressed his disagreement with the MEB's findings.

7.  On 20 June 2006, the applicant was evaluated in the Family Practice Clinic in response to a request for a five day blood pressure check.  At that time, he indicated he had been depressed for the last two weeks.  He was instructed to make an appointment with the primary care manager (PCM) to discuss treatment options for depression.

8.  The Chief, Orthopedics reviewed the applicant’s appeal and stated the information in his packet and health record showed the only orthopedic condition that did not meet retention standards was his back pain, and the Chief, Urology provided an updated evaluation.

9.  On 7 July 2006, the urology staff prepared an addendum to their MEB NARSUM which shows that during a reassessment of the applicant’s genitourinary issues, he reported that left sided testicle pain and epididymal pain were greater in severity than previously dictated on a prior consultation.  He also reported pain with ejaculation, and a nine month history of erectile dysfunction which could be associated with ongoing depression for which he was being treated.  It was noted that he was not taking any antidepressants at that time.

10.  The addendum also shows the applicant’s testicular ultrasound revealed a small left hydrocele and a 4 millimeter epididymal cyst on the left epididymis with normal testicles bilaterally.  He was finally diagnosed “left orchalgia (testicle pain) with no anatomic abnormality noted and offered hydrocele repair with no anticipation that it would relieve the pain.  The applicant declined the operation at that time.  He was recommended to appear before a PEB.

11.  On 14 July 2006, applicant disagreed with the diagnosis (1) of the MEB indicating it did not address muscle contractions or mechanical ROM limitations.

12.  On 14 July 2006, the Deputy Chief of Clinical Services indicated that the applicant’s appeal had been reviewed along with the orthopedics and urology updates and his case had been forwarded to the PEB.

13.  On 17 July 2006, an informal PEB found the applicant to be unfit due to chronic low back pain secondary to degenerative disc disease without neurologic abnormality, ROM limited by pain, positive spasm under VASRD code 5299 and 5242 (10%); and left orchalgia with left hydrocele under VASRD codes 8799 and 8730 (0%).  The PEB recommended the applicant be separated with severance pay with a combined rating of 10%.

14.  On 31 July 2006, the applicant did not concur with the findings of the informal PEB and demanded a formal hearing.  He appealed the findings of the PEB with similar arguments used in his MEB appeal.  He also stated his belief that his medical conditions warranted a disability rating of at least 30%.  He indicated that the PEB liaison officer denied him due process by denying him access to his complete MEB package, medical records, and sufficient time to prepare for board appearances.  He also maintains that he had an abundance of medical issues that the MEB did not list and evaluate.

15.  In his appeal, he also stated that his conditions were not documented using the VA worksheets as described in United States Army Physical Disability Agency (USAPDA) guidance which resulted in an inappropriate rating.  Among other conditions, he indicated that he was being evaluated for a mental disorder. He also included a personal statement prepared by his wife who attested to his initial injury during training, and other resulting conditions and the resulting affects on him, his military career, home life, and his family as well.

16.  On 9 August 2006, a formal PEB found the applicant to be unfit due to chronic low back pain secondary to degenerative disc disease without neurologic abnormality, ROM limited by pain, positive spasm under VASRD code 5299 and 5242 (10%); and left orchalgia with left hydrocele under VASRD code 8799 and 8730 (0%).  The formal PEB recommended the applicant be separated with severance pay and a combined rating of 10%.

17.  The formal PEB indicated that there was no evidence substantiating a 
20% rating for the applicant’s back.  It was also noted that the hydrocele was not documented to be similar to a “severe” neuralgia which is what is required for a 10% rating.

18.  On 16 August 2006, the applicant was seen by the Psychology Clinic, DACH, for initial intake.  At that time the applicant indicated that he had been depressed for 8 to 9 months since his MEB process began and it was noted that he started Zoloft 1 week prior.  He was found to be alert; oriented to time, place, and person and situation; and healthy appearing.  His speech was normal, and his mental status findings were as follows:  mood (depressed);  attitude (cooperative); affect (congruent with mood); no hallucinations; memory (unimpaired); thought content (no impairment); no delusions, no suicidal ideation; and dangerous assessment (no assault risk).  He was diagnosed as mildly depressed, instructed to continue Zoloft as prescribed, and to follow-up in four weeks.

19.  On 19 August 2006, the applicant non-concurred with the findings and recommendation of the formal PEB.  He appealed the findings of the formal PEB with arguments similar to those used in his MEB and informal PEB.  He indicated his back was not rated correctly in accordance with law, regulation, and policy; there is strong evidence his medical conditions were not completely and properly diagnosed; the hydrocele condition was nonsensical and not in keeping with the impact of this condition nor the VASRD provisions and application; denied due process; complete records not available for the PEB review; and he felt more like he was at an inquisition.  He claimed that the mannerisms of the formal board physicians were particularly hostile and that he was admonished for smoking and not presenting any medical evidence that should have been provided by the PEB.

20.  On 12 September 2006, the applicant was seen at Psychology Center, DACH for a follow-up.  The following mental status findings was included in the report:  mood (slightly depressed); attitude (cooperative); affect (congruent with mood); no hallucinations; memory (unimpaired); no thought blocking; thought content (no impairment); insight was intact, no obsessions, no paranoid ideations, no delusions, no suicidal tendency; and dangerous assessment (no assault risk).  The applicant was not suicidal or homicidal and showed no signs of psychosis.  He was informed to follow-up with his PCM because he was being processed for separation through medical channels requiring no further treatment at the current facility.

21.  The results of the applicant’s appeal of the formal PEB were not included in his Official Military Personnel File and were not available for review.

22.  On 24 February 2006, the applicant was released from active duty for physical disability, with severance pay, after completing a total of 2 years, 1 month and 24 days of creditable service for pay.

23.  On 27 March 2007, the VA granted the applicant service-connected disability compensation for thoracic and lumbar strain with degenerative disk disease of the lumbar spine at L4-5 and L5-S1 with a left paracentral disk bulge at L5-S1 and a focal annual tear (10%); low back pain with radiculopathy, left leg (10%); right shoulder tendonitis (10%); gastroesophageal reflux disease (10%); trochanteric bursitis, left hip (10%); right De Quervain’s tenosynovitis (10%); erectile dysfunction (0%); and entitlement to special monthly compensation based on loss of use of creative organ.

24.  The VA further denied the applicant service connection for the following conditions:  epigastric hernia; myopia/maculopathy, left; major depressive disorder; left hydrocele testicular; previous left groin strain; umbilibal hernia; and previous right groin strain.

25.  The VA granted the applicant service connection disability compensation on the following dates for the additional conditions indicated:  7 August 2007- major depressive disorder and adjustment disorder (70%); 5 October 2007 – entitlement to individual unemployability.  Also on 5 October 2007, he was denied service connection for bladder problems.

26.  In the processing of this case, an advisory opinion was obtained from the USAPDA.  That Agency outlined the applicant’s MEB/PEB processing and the applicant’s appeals indicating that each of his claims were fully reviewed, considered and commented on by the PEB during the formal hearing.  It noted that on 24 August 2006, the formal PEB responded and directed the applicant’s attention to the 9 August 2006 DA Form 199, which specifically addressed several of his issues.  The PEB noted that the prior MEB appeal was returned for a third review and it appeared that the medical treatment facility found the MEB to be adequate.  The PEB also reviewed approximately 90 pages of additional medical documentation provided by the applicant in connection with his appeal to the formal PEB and found no new significant information that required any change to the findings.

27.  The USAPDA found that there were no material errors which prejudicially affected the final outcome of findings of the PEB and noted that additional conditions of which the applicant complained could have been transferred to the DA Form 3947; however, the conditions were all clearly documented throughout the MEB case file and in the applicant’s numerous appeals.  It was further noted that the PEB considered all of the applicant’s conditions and, only two conditions were found unfitting.  There was virtually no evidence presented (performance or medical) which supported that any of those conditions were unfitting, either individually or in combination.  Only unfitting conditions are compensable.  

28.  The USAPDA noted Army Regulation 600-60 mandates direct referral into the MEB/PEB process when a condition(s) does not meet medical retention standards, as in the applicant’s case and therefore, he was not entitled to referral to an MOS Medical Retention Board (MMRB).  It was also determined that the applicant could flex his back 75 degrees and that a minimum limitation of 
60 degrees was required for a higher rating of 20%.  Additionally, it was determined that his back condition was properly rated and that there was insufficient evidence to document his back spasms were so severe that they resulted in an abnormal gate.
29.  The USAPDA further determined that the applicant’s PEB’s rating for left testicle pain was approximately rated analogous to lIio-inguinal nerve neuralgia as the MEB found the pain to be of an unknown reason without any anatomic abnormality noted and that any hydrocele repair would not likely fix his complaints of testicle pain.  Based on the applicant’s complaints and documented reports the pain could not be classified as “severe to complete” thereby requiring a moderate rating.  The hydrocele itself was not independently unfitting and would not have been ratable by itself.  It was finally determined that there was no evidence that the PEB did not review all medical records available and the applicant did not provide any objective evidence of clear administrative error that would require a change to the PEB’s finding.  The USAPDA recommended no change to the applicant’s record.

30.  On 3 December 2008, the applicant provided a rebuttal to the USAPDA advisory opinion.  He restated that all of his conditions were not listed in the MEB as required by the governing Department of Defense Instruction (DODI) and Army regulations and that they should have been.  He indicated that even though the USAPDA representative stated that all of his conditions were listed on the DD Form 2807 and available in his MEB record for review, evidence clearly indicate that his right shoulder was not evaluated.  He argued that when conditions are not listed, he is denied the MEBs rationale and assurance that the condition was vetted with full clinical data as required and not listed on the DD Form 199.

31.  The applicant also stated that the MEB approval authority’s return of his case for further review by the orthopedic physician and urologist were attempts to correct one of the several issues he raised.  He questions how the orthopedic physician, whose specialty does not cover his range of ailments and conditions, could assess that his back pain was the only disqualifying condition.  He also cites Army Regulation 635-40 and provides that a NARSUM will not reflect a conclusion of fitness and therefore should not state a diagnosis that includes terms as unfitting, disqualifying, ratable, not ratable.  He indicated that it is the PEB’s responsibility to determine a Soldiers fitness.

32.  The applicant stated that the urologist who dictated the NARSUM covering his testicular hydrocele and epidimal cyst added nearly nothing and that it was incomplete.  He also stated that within 4 months of his discharge his testicle was extremely unbearably painful and that he opted to have surgery and a biopsy.
33.  The applicant indicated that although the USAPDA advisory opinion indicated his psychiatric condition met retention standards and that he was not on medication at that time, several doctors diagnosed him to suffer from “depressed moods” and suggested that he be seen by mental health.”  He further stated that because the waiting list was extremely long, he was prescribed an antidepressant while he waited for an appointment.  He indicated that a psychologist at DACH concluded that his depression resulted from his chronic pain.  He additionally stated that his mental condition resulted in an approved 
70 % disability rating by the VA and a 100 % permanently disabled decision by the Social Security Administration.  He finally questioned if VASRD code 5242 was the correct code applied to his medical conditions regarding his back, and asks why VASRD code 7804 was not used instead of VASRD code 8730 to rate his orchalgia/hydrocele.

34.  Army Regulation 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.  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 his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

35.  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.

36.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, the PEB makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

37.  Appendix B of Army Regulation 635-40 provides guidance on the application of the VASRD.  Paragraph B-15 provides, in pertinent part, for granting a 0% disability rating when a medical condition, which causes or contributes to unfitness for military service, is of such mild degree that it does not meet the criteria for even the lowest rating provided in the VASRD.  

38.  Title 38, U.S. Code, sections 1110 and 1131, 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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was not properly processed through the Army PDES and that he should have received a higher disability rating was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, the mere presence of an 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 the physical disability with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Only unfitting conditions or defects or those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

3.  The evidence of record confirms the applicant was properly processed through the Army's PDES and he received all appropriate appellate reviews.  Further, the evidence shows that during the appellate process, all the medical issues and conditions raised by the applicant were properly evaluated and addressed by medical officials, and that the PEB had all the medical records and evidence available and fully evaluated and considered the applicant's issues prior to rendering its final evaluation.  The USAPDA also had all the available medical evidence and fully vetted the applicant's rebuttal during its final appellate review of the case, as evidenced by the USAPDA advisory opinion.  Although medical conditions may have inadvertently been omitted from the MEB and/or PEB Proceedings, all of these conditions were reviewed during the medical and appellate reviews completed during the process, and no disqualifying conditions that would have supported an additional or higher disability rating were omitted from the final PEB Proceedings.  

4.  Under VASRD codes 5235-5243, musculoskeletal system of the spine, a 
10% rating is appropriate when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees.  In this case, as noted in the USAPDA advisory opinion, which is supported by the medical evidence provided during the PDES process, the applicant’s flex in his back was 
75 degrees which falls within the 10% range.  

5.  Further, during the applicant's first evaluation by the VA subsequent to discharge, that agency also assigned a 10% disability rating for his chronic low back pain secondary to degenerative disc disease without neurologic abnormality, ROM limited by pain, positive spasm condition (VASRD code 5299 and 5242) and 0% for his left orchalgia with left hydrocele condition (VASRD Code 8799 and 8730, which are the same ratings assigned through the Army's PDES and, in effect, corroborates those ratings were appropriate at the time of discharge.

6.  In addition, the VA may rate any service-connected impairment, thus compensating for loss of civilian employment.  It may also award 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. The VA can also evaluate a veteran throughout his lifetime, adjusting the percentage of disability based on their examinations and findings.  However, any change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.  As a result, absent any error or injustice in the applicant's PDES processing, there is an insufficient evidentiary basis to change the 10% disability rating assigned the applicant by the PEB.

7.  Although it is clear the applicant suffered from several service-connected conditions that were not rated by the PEB, these conditions were determined not to be unfitting (ratable) by military medical authorities, who thoroughly reviewed the applicant's medical records and issues during the PDES evaluation process.  As a result, he is appropriately being evaluated, treated, and compensated for these conditions by the VA.  

8.  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 this requirement. 
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)                                         AR20080010257



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ABCMR Record of Proceedings (cont)                                         AR20080010257



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