IN THE CASE OF:	

		BOARD DATE:	       28 May 2009

		DOCKET NUMBER:  AR20080012899 


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 disability rating be increased to 30 or 40 
percent.

2.  The applicant states, in effect, that his disability rating was changed from 20 to zero percent.  

3.  The applicant provides a copy of his DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings), dated 4 September 2007; his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 7 November 2007; his DA Form 199, dated 3 January 2008; and numerous medical documents in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  After having prior service in the Army National Guard (ARNG) and the U.S. Army Reserve (USAR), on 12 February 2003 the applicant enlisted in the ARNG again.  He was awarded military occupational specialty (MOS) 92F (petroleum supply specialist).  His highest grade attained during his most recent enlistment was specialist (SPC)/E-4.  

2.  He was ordered to active duty on 6 February 2006 in support of Operation Iraqi Freedom.  

3.  In July 2007, the applicant was placed on a permanent physical profile for the following conditions (1) tailor's bunion deformity/keratoma, right foot; (2) back pain; (3) neck pain; (4) right neck/shoulder torticollis; and (5) sensorineural 
hearing loss, with numerical designators of 133211.  His physical limitations were listed as "No running, no jumping, no climbing.  No Kevlar, no IBA.  May PT at gym or pool.  No exposure to noise in excess of 85 dBA (decibels measured on the A scale) or weapons firing without use of properly fitted hearing protection.  Annual hearing test required."

4.  On 4 September 2007, the applicant was evaluated by an MEBD.  The MEBD found that the applicant had the following medical conditions: (1) intervertebral disc degeneration (medically unacceptable); (2) spinal stenosis without myelopathy (medically unacceptable); (3) lumbago (medically unacceptable); (4) cervicalgia (medically unacceptable); (5) right neck and shoulder torticollis (medically unacceptable); (6) plantar fasciitis, both feet (medically unacceptable); (7) talus bunion deformity with keratoma, both feet (medically unacceptable); (8) adjustment disorder (medically acceptable); (9) chronic tension headaches secondary to neck pain (medically acceptable); and (10) sensorineural hearing loss (medically acceptable).  The MEBD proceedings indicated the diagnoses of plantar fasciitis, both feet and talus bunion deformity with keratoma, both feet, existed prior to service (EPTS) and were permanently aggravated by service.  He was referred to a PEB.

5.  An informal PEB convened on 7 November 2007.  The PEB found the applicant was physically unfit due to lumbar degenerative disc disease (EPTS, aggravated by service), cervical degenerative disc disease with chronic neck pain (EPTS, aggravated by service), and tailor bunion deformity with keratoma, bilateral feet (EPTS, not aggravated by service) under Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5299, 5242, and 5280.  The PEB recommended separation with severance pay with a combined rating of 20 percent.  Diagnosis 6 (plantar fasciitis, bilateral) was determined not to be separately unfitting and no real firm diagnosis of plantar fascitis.  Diagnosis          8 (adjustment disorder) determined to not constitute a physical disability.  Diagnoses 9 and 10 (chronic tension headaches and hearing loss) were determined to be not unfitting and were not rated.  

6.  On 16 November 2007, the applicant did not concur with the findings and recommendations of the PEB and demanded a formal hearing with personal appearance.  He did not submit a statement identifying his issues of disagreement with the informal PEB.  He requested counsel to represent him.  


7.  A formal PEB convened on 3 January 2008.  The PEB found the applicant was physically unfit due to tailor bunion deformity with keratoma, bilateral feet under VASRD code 5280 and recommended separation without disability benefits with a combined rating of zero percent.  Diagnoses 1 through 5 
(intervertebral disc degeneration, spinal stenosis without myelopathy, lumbago, cervicalgia, right neck and shoulder torticollis) were determined to be not separately unfitting.  Diagnosis 6 (plantar fasciitis, bilateral) was not separately unfitting and there was no real firm diagnosis of plantar fasciitis.  Diagnosis 8 (adjustment disorder) was a condition not constituting a physical disability.  Diagnoses 9 and 10 (chronic tension headaches and hearing loss) were determined to be not unfitting and were not rated.  It was indicated that these conditions met medical retention standards and did not pose significant physical profile restrictions.  

8.  The applicant was honorably discharged from active duty on 27 March 2008 under the provisions of Army Regulation 635-40, paragraph 4-24b(4) by reason of physical disability, EPTS, PEB.  He had completed 2 years, 1 month, and 22 days of active military service during this period.  

9.  In the processing of this case, on 3 November 2008, a staff advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA), Washington, DC.  The advisory opinion gave a brief synopsis of the MEBD and PEB (informal and formal) proceedings.  It was indicated that a Soldier should be considered unfit when the evidence established that the Soldier, due to physical disability, was unable to reasonably perform the duties of his PMOS.  The advisory opinion pointed out that considering the physical expectations of being a 92F and the rigors of military life, it appeared that the applicant would not be fit for his back and neck conditions.  This was based on the following: "(1) The Soldier is a 92F petroleum supply specialist and the physical demands rating is classified as 'very heavy'; (2) The Soldier's profile limits his ability to perform duties required in his primary military occupational specialty (PMOS).  The applicant cannot run, jump, climb, wear Kevlar or Interceptor Body Armor (IBA).  His commander indicates he cannot perform the duties of his PMOS; and (3) It appears that even if the applicant didn't have a foot condition, his back would cause or significantly contribute to his physical limitation as outlined above."

10.  The advisory opinion recommended that the applicant’s military records should be changed to reflect that he was found unfit and placed on the Temporary Disability Retired List (TDRL) on 27 March 2008 with a TDRL 
re-examination scheduled for July 2009.  It was also recommended that the applicant's disability rating should be changed to reflect the following is added to his unfitting, noncompensable, findings of his feet:  

"5299  5242  Lumbar degenerative disc disease, which interferes with 
the performance of his duties as a Soldier.  There's been no trauma.  There is no motor neurologic deficit.  Exam shows 
localized tenderness and range of motion of 42 degrees of flexion.  20% (MEB Dx 1-3 and 5, NARSUM, Addendum dated 28 August 2007, LOD signed 8 September 2006, Physical Therapy SF 600 dated 25 July 2007)

 5299  5242  Cervical degenerative disc disease with chronic pain that 
prevents him from wearing Kevlar.  There are no motor neurologic deficits and he had a normal electrodiagnostic study 12 July 2007.  Exam shows localized tenderness and range or motion of 17 degrees of flexion.  Although he has a diagnosis of torticollis, there is no description of abnormal alignment or posturing of the neck.  20% MEB Dx 1-2, 4-5, NARSUM, Addendum 28 August 2007, LOD signed 8 September 2006, Physical Therapy SF 600 dated 25 July 2007, Electrodiagnostic study dated 12 July 2007)

20 + 20 = 36 = 40%"

11.  On 4 November 21008, a copy of the advisory opinion was forwarded to the applicant for information and to provide him the opportunity to submit comments or a rebuttal.  On 13 November 2008, the applicant concurred with the contents of the advisory opinion.

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 defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  

13.  Army Regulation 635-40 also prescribes the function of the TDRL.  The TDRL is used in the nature of a “pending list.”  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  

14.  Title 10, U. S. Code, section 1202 provides that if a member would be qualified for retirement for disability but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member's name on the TDRL with retired pay computed under section 1401 of this title.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is correct when he stated that his disability rating was changed from 20 to zero percent.  There is sufficient evidence on which to grant relief in this case.  

2.  A 7 November 2007 informal PEB found the applicant unfit for military service due to lumbar degenerative disc disease, cervical degenerative disc disease with chronic neck pain, tailor bunion deformity with keratoma, and bilateral feet at a 20 percent combined disability rating.  At that time, his diagnoses of plantar fasciitis, bilateral, chronic tension headaches, and hearing loss were determined not unfitting and were not rated.  His diagnosis of adjustment disorder was a condition not constituting a physical disability.  The applicant did not concur with the informal PEB and demanded a formal hearing.  

3.  Based on the findings and recommendations of the formal PEB, dated 3 January 2008, the applicant was found physically unfit due to tailor bunion deformity with keratoma, bilateral feet and was recommended for separation without disability benefits with a combined rating of zero percent.  

4.  The advisory opinion from the USAPDA recommended that the applicant’s records be changed to reflect the corrections as outlined in paragraph 10 under the Consideration of Evidence.  

5.  It appears that the applicant’s disability was improperly rated by the formal PEB and it would be appropriate to correct his records to show he was found unfit and placed on the TDRL on 27 March 2008 with a 40 percent combined disability rating with a TDRL re-examination scheduled for July 2009 or as soon as possible thereafter.  

6.  It would also be appropriate to amend Block 8b (Disability Description) on the  formal PEB proceedings, dated 3 January 2008, to include the following entries:

"5299  5242  Lumbar degenerative disc disease, which interferes with 
the performance of his duties as a Soldier.  There's been no trauma.  There is no motor neurologic deficit.  Exam shows localized tenderness and range of motion of 42 degrees of flexion.  20% (MEB Dx 1-3 and 5, NARSUM, Addendum dated 28 August 2007, LOD signed 8 September 2006, Physical Therapy SF 600 dated 25 July 2007)

 5299  5242  Cervical degenerative disc disease with chronic pain that 
prevents him from wearing Kevlar.  There are no motor neurologic deficits and he had a normal electrodiagnostic study 12 July 2007.  Exam shows localized tenderness and range or motion of 17 degrees of flexion.  Although he has a diagnosis of torticollis, there is no description of abnormal alignment or posturing of the neck.  20% MEB Dx 1-2, 4-5, NARSUM, Addendum 28 August 2007, LOD signed 8 September 2006, Physical Therapy SF 600 dated 25 July 2007, Electrodiagnostic study dated 12 July 2007)"

BOARD VOTE:

____X____  ___X_____  __X______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  voiding his 27 March 2008 discharge for disability with severance pay; 

	b.  amending Block 8b (Disability Description) on the applicant's DD Form 199, dated 3 January 2008, to include the following entries:

"5299  5242  Lumbar degenerative disc disease, which interferes with 
the performance of his duties as a Soldier.  There's been no trauma.  There is no motor neurologic deficit.  Exam shows localized tenderness and range of motion of 42 degrees of flexion.  20% (MEB Dx 1-3 and 5, NARSUM, Addendum dated 28 August 2007, LOD signed 8 September 2006, Physical Therapy SF 600 dated 25 July 2007)

 5299  5242  Cervical degenerative disc disease with chronic pain that 
prevents him from wearing Kevlar.  There are no motor neurologic deficits and he had a normal electrodiagnostic study 12 July 2007.  Exam shows localized tenderness and range or motion of 17 degrees of flexion.  Although he has a diagnosis of torticollis, there is no description of abnormal alignment or posturing of the neck.  20% MEB Dx 1-2, 4-5, NARSUM, Addendum 28 August 2007, LOD signed 8 September 2006, Physical Therapy SF 600 dated 25 July 2007, Electrodiagnostic study dated 12 July 2007)."

   c.  placing the applicant on the TDRL at a 40 percent combined disability rating, effective 28 March 2008; and

	d.  affording the applicant the opportunity to undergo a TDRL re-examination in July 2009 or as soon as possible thereafter.




      ________XXX______________
       	   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)                                         AR20080012899



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ABCMR Record of Proceedings (cont)                                         AR20080012899



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