IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20080014850 


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 her discharge by reason of permanent disability be changed to retirement by reason of permanent disability.

2.  The applicant states she was removed from the temporary disability retired list (TDRL) and discharged on 28 November 2006.

3.  The applicant provides:

	a.  Orders D333-03, US Army Physical Disability Agency (USAPDA), Walter Reed Army Medical Center, Washington, DC, dated 28 November 2006, removing her from the TDRL and discharging her by reason of permanent physical disability, rated at 20 percent.

	b.  DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 10 February 2003 through 9 June 2005, a period of 2 years and 4 months of creditable active Federal service.  She was honorably retired by reason of temporary disability.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard (ARNG) on or about 4 April 1990.  She performed active duty for training (ADT) from on/about 10 July 1990 to on or about 14 November 1990.  Following ADT, she returned to her ARNG unit.

2.  On 4 October 1992, the applicant was discharged from the ARNG in order    to enlist in the Regular Army (RA).  She served in the RA from on or about          5 October 1992 through on or about 12 September 1994.  Upon her separation, she was transferred to the US Army Reserve (USAR) Control Group (Reinforcement) where she served from on or about 13 September 1994 through on or about 3 April 1998.

3.  The applicant was without a military connection from on or about 4 April 1998 through on or about 28 January 2001.  On 29 January 2001, she enlisted in the ARNG.  The record shows that she was trained in military occupational specialty 63Z, (Mechanical Maintenance Supervisor) and that she was ordered to active duty in support of Operation Enduring Freedom on 10 February 2003.  She served on active duty in Kuwait from 21 April 2003 through 3 October 2003.

4.  In September 2003, the applicant suffered a fracture of her right scaphoid bone.  The scaphoid bone is located at the base of the thumb, just above the radius and can be easily identified when the thumb is held in a "hitch hiking" position; the scaphoid is at the base of the depression made by the thumb tendons.  After treatment for the fracture, the applicant experienced chronic and persistent pain in the right wrist, hand and arm.

5.  The applicant’s pain was treated with bertylium blocks and Transcutaneous Electrical Nerve Stimulation (TENS) units without improvement.  A permanent dorsal column stimulator was operatively inserted on 13 October 2004 which resulted in significant improvement.

6.  On 2 February 2005, the applicant was referred to a Medical Evaluation Board (MEB) for the following conditions:  Reflex Sympathetic Dystrophy (RSD); supraspinatus tendinosis of the left rotator cuff; right anterior knee pain; and mood disorder.  The DA Form 3947 (Medical Evaluation Board Proceedings) available for review with this case does not indicate the board’s findings and recommendation.  It does indicate that the applicant did not desire to remain on active duty and that she did not concur with the board’s findings and recommendation.  The applicant appealed, but her appeal was denied.

7.  On 11 April 2005, the applicant was given a Physical Evaluation Board (PEB). The board considered the following conditions:  

   a.  “RSD of right (dominant) hand with wrist extension of 20 degrees and flexion of 15 degrees.  Radial and ulnar deviation are 5 degrees each.  Has permanent cervical dorsal column stimulator in place which has helped the pain 

but it persists and is especially aggravated with driving movements.  Rated as moderate.”  The recommended disability rating was 30 percent under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 8799-8715, by analogy to neuralgia of the median nerve, with pain.
   
   b.  “Chronic right knee pain and pain in left rotator cuff, not requiring daily narcotics.  Rated as slight/constant.”  The recommended disability rating was 10 percent under VASRD code 5099-5003, by analogy to degenerative arthritis, with pain.

	c.  “The Soldier’s mood disorder is not separately unfitting as it is directly related to her medical condition(s) and to rate both would be pyramiding.”

The combined rating for the applicant’s two ratable conditions was 40 percent.  The PEB recommended she be placed on the TDRL with periodic re-evaluations. The applicant concurred with the PEB’s findings and recommendation.

8.  On 9 June 2005, the applicant was honorably retired by reason of temporary disability.  Her DD Form 214 shows 2 years, 4 months, and 0 days of active duty; 2 years, 5 months, and 18 days of prior active duty; and 7 years, 6 months, and 23 days of prior inactive duty.

9.  In September 2006, the applicant underwent a TDRL re-evaluation at Fort Benning, GA.  During that physical examination, the following was noted concerning her right wrist:

Range of motion measurements were done with a goniometer revealing wrist dorsiflexion to 56 degrees, volar flexion to 70 degrees, pronation and supination to 90 degrees, radial and ulnar deviation is normal.  She has global tenderness throughout her wrist.  There is no swelling or synovitis.  Her grip strength is 4/5 with poor effort.  She has no atrophy of her interosseous or thenar or hypothenar eminences.  Sensation is normal throughout.  Her radial and ulnar pulses are 2+.  The hand is well erpfused.  She has full range of motion of all interphalangeal joints as well as metacarpophalangeal joints.  She has no change in the skin and there is no contour abnormality.  She has no Tinel’s or Phalen sign.

Essentially, this evaluation obviated the diagnosis of RSD and the assessment was for chronic right wrist pain without objective findings vice RSD.



10.  On 8 November 2006, the applicant was given a re-evaluation PEB at Fort Sam Houston, Texas.  The PEB found the applicant 20 percent disabled for chronic pain in her right wrist, right knee, and left shoulder, without objective findings.  It further found her right upper extremity no longer had physical findings compatible with RSD, and that RSD was not diagnosed during a TDRL re-evaluation on 7 September 2006.  The PEB recommended the applicant be removed from the TDRL and separated with severance pay, if otherwise qualified.

11.  The applicant nonconcurred with the PEB’s findings and recommendation and offered a rebuttal.  She argued that RSD was a permanent condition – once diagnosed, it is incurable.  She requested that she be rated as 30 percent disabled for RSD, 10 percent disabled for a torn rotator cuff, and 20 percent disabled for pain.  She requested permanent physical disability retirement.

12.  On 28 November 2006, the USAPDA, after noting the applicant’s disagreement and reviewing all documentation in her case, concluded that her case was properly adjudicated.

13.  On 28 November 2006, Orders D333-03 removed the applicant from the TDRL and discharged her from the Army because of permanent physical disability rated at 20 percent.

14.  The VASRD is used by the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

15.  The VASRD guidance for rating median nerve conditions shows the rating for incomplete mild paralysis is 10 percent and the rating for moderate incomplete paralysis of the median nerve is 30 percent.  Disability ratings are based on loss of function.

16.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.



17.  Title 10, United States Code, 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.

18.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years active service and a disability rated at less than 30 percent.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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.

20.  Chapter 4 of the Army Regulation 635-40 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.  It also 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, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant believes she should have been permanently retired, not discharged with disability severance pay.

2.  The applicant broke her right scaphoid bone.  Following treatment, she complained of pain syndrome and was initially diagnosed as having RSD, rated at 30 percent.  Her other ratable disabilities were rated at 10 percent.  She was placed on the TDRL and ordered to undergo with periodic re-evaluations.



3.  During a periodic re-evaluation in September 2006, her right wrist condition was found to have improved.  Based on quantifiable test results, an 8 November 2006 PEB rated her only for chronic pain in her right wrist (and right knee and left shoulder) with a rating of 20 percent.  It was recommended she be removed from the TDRL and discharged with severance pay.  The applicant non-concurred.

4.  In rebutting the findings and recommendation of her 8 November 2006 PEB, the applicant argued her RSD could not just go away.  RSD is a pain syndrome currently classified under the term Complex Regional Pain Syndrome (CRPS).  
There is no dedicated VASRD code for rating RSD or CRPS and this group of pain syndromes is rated by analogy to neuralgia of the affected peripheral nerve distribution.  Her records show her pain syndrome was restricted to the distribution of the originally injured nerve, the right median nerve.  The median nerve is a nerve that runs down the arm and forearm.  It is one of the five main nerves originating from the brachial plexus.  It is the only nerve that passes through the carpal tunnel, where it may be compressed to cause carpal tunnel syndrome [Note:  the applicant’s examination for carpal tunnel syndrome (Phalen sign) was negative].  Whether diagnosed as neuralgia of the median nerve or as CRPS in the median nerve, the conditions are rated the same using the same VASRD code for neuralgia of the median nerve, VASRD Code 8715.  

5.  The VASRD guidance for rating median nerve conditions shows the rating for incomplete mild paralysis is 10 percent and the rating for moderate incomplete paralysis of the median nerve is 30 percent.  Disability ratings are based on loss of function.  Her complaint is one of pain, from which her functional impairment follows.  All the exams available for review in her military records attribute her right wrist condition as due to pain.  Pain is a subjective sensation, not amenable to objective measurement.  While there is no dispute her pain is real, the quantification of her symptoms is dependent entirely on her reporting.  Evidence of record shows her condition was limited to the distribution of the median nerve and that secondary manifestations that were previously present were mild and were subsequently no longer observed on re-examination in September 2006.  Despite the presence of chronic pain, examination objectively showed the absence of effects that would be expected from long term decreased use of the extremity.  Findings at the time of her TDRL reexamination are consistent with the rating.  The PEB and USAPDA recommendations are consistent with the available medical information and her disability rating of 20 percent is supported by the preponderance of the evidence of record.

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 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.




      _______ _ 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)                                         AR20080014850





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