IN THE CASE OF:	  

		BOARD DATE:	  	   23 April 2009

		DOCKET NUMBER:  AR20080016168 


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, correction of his records to show he was retired based on permanent disability with a disability rating of 50 percent (%).

2.  The applicant states, in effect, he was given a 10 percent disability rating for right shoulder pain and bilateral foot pain and, according to Title 38 of the Code of Federal Regulations (CFR), each of these items should have been rated separately at 10 percent, not combined.  The applicant also states this would have afforded him a medical retirement rather than a medical discharge.  The applicant further states that his sleep apnea was considered as meeting retention standards, even though he had been on a Continuous Airway Pressure (CPAP) machine since March 2007 and the board knew this.  He adds that this disability rating would have been 50 percent by itself.

3.  The applicant provides copies of his DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings), dated 5 September 2007, with identified enclosures; DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 22 October 2007; Headquarters, Fort Stewart and Hunter Army Airfield, Fort Stewart, Georgia, Orders 345-0010, dated 11 December 2007; DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of
25 December 2007; Department of Veterans Affairs (VA), Atlanta Regional Office, Decatur, Georgia, letter, dated 21 August 2008, with identified enclosures; and extracts of Title 38, CFR, section 6847 (Sleep Apnea Syndromes - Obstructive, Central, Mixed) and paragraph 4.59 (Painful motion).


CONSIDERATION OF EVIDENCE:

1.  The applicant’s military personnel records show he had prior active duty service in the U.S. Navy from 28 October 1982 to 23 September 1994.  He had a break in military service from 24 September 1994 to 7 November 1998.

2.  The applicant’s military personnel records show he enlisted in the Georgia Army National Guard (GAARNG) for a period of 6 years on 8 November 1998.  Upon completion of advanced individual training, the applicant was awarded military occupational specialty (MOS) 63M (Bradley Fighting Vehicle System Maintainer).  On 6 December 2004, the applicant was ordered to active duty as a member of his GAARNG unit in support of Operation Iraqi Freedom.

3.  The applicant’s military personnel records contain a DA Form 199, dated
22 October 2007, that shows an informal PEB convened on 22 October 2007.  

   a.  The PEB Proceedings, item 8b (Disability Description), describes the applicant’s MEBD Diagnoses (2 and 3) as “[c]hronic pain, left knee and right shoulder.  Shoulder range of motion 107 degrees limited by pain.  Abduction
155 degrees.  Left knee flexion 0-108 degrees.  Unable to perform Soldier duties.  Rated as slight/constant” and shows a recommended disability rating of
10 percent.  This section also describes the applicant’s MEBD Diagnosis 1 as “[b]ilateral plantar fasciitis which interferes with marching and maneuvering over uneven terrain.  Rated as slight bilaterally” and shows a recommended disability rating of 0 percent.  

   (1)  This section notes “[t]he medical evidence contradicts the LOD [Line 
of Duty] in the Soldier’s case file regarding the etiology of his knee and shoulder pain.  SF [Standard Form] 600 [Medical Record - Chronological Record of Medical Care], dated 4 February 2005, states ‘P[atien]t fell off ladder about one week ago.  Struck knee against grass surface.’  SF 600, dated 11 March 2005 states ‘…weakness/numbness in right shoulder after wearing vest’.”

   (2)  This section also shows “[r]ated IAW [in accordance with] U.S. Army 
Physical Disability Policy/Guidance Memorandum #13, dated 28 February 2005, subject:  Rating Pain.”  This item further shows “[t]able of Analogous Codes rated in accordance with U.S. Army Physical Disability Policy/Guidance Memorandum #12, dated 28 February 2005, subject:  Table of Analogous Codes.”

   3)  This section advises “[a]s a Soldier with a rating of less than 30% who 
may have at least 20 qualifying years for Reserve retirement UP [under the provisions] of Chapter 67, Title 10, U.S. Code, you may have the option of 

accepting disability severance pay and forfeiting your Reserve retirement pay, or you may request transfer to the inactive Reserve status and receive Reserve retired pay at age 60.”  This section also advises “[y]ou are advised that a member of an armed force may not be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury that he/she has.”

   b.  Based on a review of the medical evidence of record, the PEB found the applicant physically unfit and recommended separation with severance pay, if otherwise qualified, with a combined rating of 10%.

   c.  The DA Form 199 shows the PEB Findings and Recommendation were approved for the Secretary of the Army on 8 November 2010 (sic) (i.e., 2007).

4.  The applicant's military personnel records contain a copy of Headquarters, Fort Stewart and Hunter Army Airfield, Fort Stewart, Orders 345-0010, dated
11 December 2007, that shows the applicant was assigned to the U.S. Army Transition Center, Fort Stewart, for discharge on 25 December 2007 and that he was authorized disability severance pay, in pay grade E-6, based on
15 years, 8 months, and 16 days of creditable active service.

5.  The applicant's military personnel records contain a DD Form 214 that shows he entered active duty this period on 6 December 2004 and was honorably discharged on 25 December 2007 under the provisions of Army Regulation
635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), disability with severance pay.  At the time he had completed 3 years and 20 days of net active service this period; 11 years, 10 months, and 26 days of total prior active service; and 6 years and 28 days of total prior inactive service.  Item 18 (Remarks) of the DD Form 214 shows, in pertinent part, the applicant had an approved grade determination and was authorized to have his severance pay calculated at the rank of staff sergeant (SSG)/pay grade E-6.  This item also contains the entry, “DISABILITY SEVERANCE PAY -- $73,548.00.”

6.  In support of his application, the applicant provides the following documents.

   a.  A DA Form 199, dated 22 October 2007; Headquarters, Fort Stewart and Hunter Army Airfield, Fort Stewart, Orders 345-0010, dated 11 December 2007; and DD Form 214 with an effective date of 25 December 2007.  These three documents were previously introduced and considered in this Record of Proceedings.


   b.  A DA Form 3947, dated 5 September 2007, with identified enclosures that include, in pertinent part, the MEBD Narrative Summary; DA Form 2807-1 (Report of Medical History), dated 8 June 2007; and DA Form 2808 (Report of Medical Examination), dated 20 June 2007.

   (1)  The MEBD Narrative Summary shows the applicant was seen at the 
Winn Army Community Hospital, Fort Stewart, on 26 June 2007 and examined by a doctor from Family Practice and Neuromusculoskeletal Medicine & Osteopathic Manipulative Medicine.  The MEBD Narrative Summary, in pertinent part, notes “[h]e also has severe obstructive sleep apnea hypercholesterolemia and tinnitus for which he is rated at 10% from a previous VA assessment.”

   (2)  The DA Form 2807-1, Item 30 (Examiner’s Summary and Elaboration 
of all Pertinent Data), block a (Comments), in pertinent part, shows the physician entered “17d.  Sleep Apnea dx [diagnosed] 2/07 [February 2007] - CPAP use since 3/07 [March 2007].”

   (3)  The DA Form 2808, Item 77 (Summary of Defects and Diagnoses), in 
pertinent part, contains the entry “3.  Sleep Apnea NQFS IAW AR 40-501, 3-41c [Not Qualified for Further Service In Accordance With Army Regulation 40-501, paragraph 3-41c].”  Item 78 (Recommendations - Further Specialist Examinations Indicated), in pertinent part, contains the entry “3.  As above, cont[inue] CPAP use.”

   (4)  The DA Form 3947, Item 13 (Diagnosis), shows that the applicant’s 
MEBD diagnosis of chronic bilateral foot pain does not meet the retention standards; diagnosis of chronic left knee pain does not meet the retention standards, diagnosis of chronic right shoulder pain does not meet the retention standards; diagnosis of sleep apnea meets retention standards, and diagnosis of mood disorder (NOS) [Not Otherwise Specified] meets retention standards.  The MEBD proceedings also show that the applicant acknowledged with his signature that all medical documentation in his possession was provided to the PEB Liaison Officer (PEBLO) and he certified that this MEBD accurately covered all his current diagnoses.  The MEBD proceedings show the applicant was referred to a PEB.

   c.  VA, Atlanta Regional Office, Decatur, Georgia, letter, dated 21 August 2008, with identified enclosures.  This documentation shows, in pertinent part, the VA determined service-connection was granted for the applicant’s sleep apnea (50%), bilateral plantar fasciitis with calcaneal spurs (10%), right shoulder strain (10%), left knee strain (10%), left elbow strain (0%), right elbow strain 
(0%), and hypertension (0%), all effective 26 December 2007.  The VA also 
determined the applicant’s bilateral hearing loss was not related to his military service and service connection could not be granted.  The Georgia Department of Veteran Service, Rating Decision, dated 15 August 2008, in pertinent part, shows in the “Reasons for Decision”, paragraph 1 (Service connection for sleep apnea), “[c]ontinuous C-PAP) use is noted on your physical examination.”  This document also shows “[s]ervice connection for sleep apnea has been established as directly related to military service.  An evaluation of 50% is assigned from December 26, 2007, the day after your discharge from military service.  An evaluation of 50% is assigned if a breathing assistance device, such as a continuous airway pressure (CPAP) machine, is required.”

   d.  Extracts of Title 38, CFR, section 6847 (Sleep Apnea Syndromes - Obstructive, Central, Mixed) and paragraph 4.59 (Painful motion) with parts highlighted in yellow marker.  Section 6847 shows, in pertinent part, “[r]equires use of breathing assistance device such as continuous airway pressure (CPAP) machine….50.”  Paragraph 4.59 shows, in pertinent part, “[i]t is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.”

7.  In connection with the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA), Washington, D.C.  The Agency Legal Advisor notes that the applicant claims that he should have received a separate 10% rating for his shoulder, left knee, and foot pain, and also should have been rated at 50% for his sleep apnea.

   a.  The USAPDA Legal Advisor provides a summary of the applicant’s MEBD that was completed on 5 September 2007, which listed his conditions as chronic bilateral foot pain, chronic left knee pain, and chronic right shoulder pain as not meeting medical retention standards.  His sleep apnea and mood disorder were found to meet medical retention standards.  He adds that clarifying memoranda from the MEBD were provided on 8 and 10 October 2007 explaining why sleep apnea meets retention standards, why there were no valid psychiatric diagnoses at the time of the applicant’s MEBD, and that the shoulder range of motion (ROM) limits were due to pain and guarding; not a mechanical basis.  The Legal Advisor adds that the physical examination discovered few abnormal findings, with some tenderness and reduced ROM due to pain being the only findings.  Except for some shoulder osteoarthritis, all radiographic findings of the joints were free of any major defects or arthritis and the applicant had full strength and reflexes in all extremities.  The applicant concurred in all these findings on
11 September 2007.

   
   b.  On 22 October 2007, an informal PEB found the applicant unfit for his chronic left knee and right shoulder pain.  The Agency’s Legal Advisor notes that they were both rated under the USAPDA’s pain policy, as there was no direct VA rating code for joint pain.  The pain was found to be slight and constant and ratable at 10%.  The applicant’s bilateral plantar fasciitis was rated analogous to rating code 5310, muscle functions of the foot, at slight, which is a zero rating.  Accordingly, the applicant was separated with severance pay.  On 23 October 2007, the applicant concurred with the PEB’s findings and waived his right to a formal board.

   c.  The USAPDA Legal Advisor notes that the applicant’s left knee was properly rated IAW [in accordance with] the USAPDA’s pain policy, as there was no evidence of arthritis or any other functional deficit that could be directly associated with any of the VA ratings for the knee.  He adds that ratings for ROM not caused by a mechanical defect would be inappropriate.  The Legal Advisor notes, although the shoulder was not diagnosed with arthritis on the DA Form 3947, there was some radiographic evidence of arthritis of the shoulder that could authorize rating the shoulder separately under 5003, degenerative arthritis.  However, since there was no ratable limitation of ROM of his shoulder, the applicant would only have been rated at 10%.  Since his plantar fasciitis was properly rated as slight, 0%, any change to his shoulder rating to 10% would still not authorize retirement for disability, as 30% is required.  The Agency’s Legal Advisor confirmed that the applicant’s sleep apnea was found not to be unfitting as there was no evidence that the condition significantly affected the applicant’s ability to perform his assigned military duties, and only unfitting conditions are compensable.

   d.  The USAPDA Legal Advisor concludes that the applicant has provided no evidence of any error in the PEB’s findings.  He adds that submitting how the VA subsequently rated the applicant’s conditions under different codes and policies is not evidence of PEB error.  The USAPDA Legal Advisor adds the PEB findings were supported by a preponderance of the evidence and were not arbitrary or capricious; and they were not in violation of any statute, directive, or regulation in existence at the time of the applicant’s separation.

8.  On 3 March 2009, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents.  On 16 March 2009, the applicant provided his rebuttal to the USAPDA advisory opinion.

   a.  The applicant states that he disagrees with the proposed denial of his request to properly and accurately change his discharge from a disability discharge to a disability retirement.  He adds the PEB made an error and, had he 
known then what he knows now, he would not have accepted the discharge.
   b.  The applicant provides an extract of Title 38, CFR, Book C, Chapter 4, paragraph 4.97, Diagnostic Code 6847, and points out that just the use of a CPAP machine is enough to award the 50% disability.  He also states that he was issued the CPAP machine before leaving active duty, he still uses the CPAP machine, and the VA rated him at 50%, effective 26 December 2007, the day after he was separated from active duty.

   c.  The applicant states that the statement in the advisory opinion that there is no rating code for joint pain is true.  However, he adds pain is ratable when a rating of 0% is given when there is no loss of ROM; it is rated with the actual joint rating code and noted with pain on motion.  He also states the rating is 10%, no matter what joint is involved.  He adds this actually pertains to his left knee, right shoulder, and chronic bilateral foot pain.  He also states that upon X-ray by the VA shortly after his discharge, it was found that he had calcaneal spurs (beginning of arthritis) in his feet.  In support, the applicant provides an excerpt of Title 38, CFR, Diagnostic Code 5003, with bolded text showing “with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups….10%.”  He also provides an excerpt of Title 38, CFR, paragraph 4.59, with bolded text showing “[t]he intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.”

   d.  The applicant concludes by stating that he does not feel the Board or anyone involved has intentionally misdiagnosed or left anything out of his medical evaluations.  However, he feels that mistakes have been made, which he has been made aware of by a VA Service Officer.  He notes that the same codes are used by the Department of Defense as are used by the VA; however, they are not used consistently, as evidenced in his case.  He asserts that his sleep apnea should have been considered as a non-retainable standard and rated at 50%.  Also, each of his chronic pain disabilities (i.e., right shoulder, left knee, and both feet) should have received a separate rating of 10% each.  He adds that, even without the sleep apnea, this would have given him a combined rating in excess of 30% and resulted in his medical retirement rather than his separation with disability severance pay.

9.  Chapter 61, Title 10, USC, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The USAPDA, under the operational control of the Commander, U.S. Army Human 
Resources Command, Alexandria, Virginia, is responsible for operating the 
Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, Title 10, U.S. Code and in accordance with Department of Defense (DoD) Directive 1332.18 and Army Regulation 635-40.  

10.  Army Regulation 635-40, in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this Army regulation, in pertinent part, provides that 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 physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

11.  Paragraph 4-10 (The Medical Evaluation Board) of Army Regulation 635-40 provides that medical evaluation boards are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in AR 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

12.  Paragraph 4-12 (Informal board) of Army Regulation 635-40 provides, in pertinent part, that each case is first considered by an informal PEB.  Informal procedures reduce the overall time required to process a case through the disability evaluation system.  An informal board must ensure that each case considered is complete and correct.  All evidence in the case file must be closely examined and additional evidence obtained, if required.  In addition, in all informal cases, the PEBLO of the Medical Treatment Facility having control of the Soldier will be the counselor for the Soldier.  As such, the PEBLO is primarily concerned with the Soldier's interests.  The Soldier will be made fully aware of the election options available to him, the processing procedures, and benefits to which he will be entitled if separated or retired for physical disability.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30%.
14.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service-connected impairment, including those that are detected after discharge in order to compensate the individual for loss of civilian employability.
  
15.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his records should be corrected to show he was retired based on permanent disability with a disability rating of at least 50% because his chronic bilateral knee pain, chronic left knee pain, and chronic right shoulder pain should have been rated separately with a rating of 10% each.  He also states his sleep apnea should have been found as not meeting the retention standards, with a rating of 50%, based on his use of a CPAP machine.

2.  The evidence of record shows that all of the applicant’s medical conditions were fully considered and evaluated under the PDES by the MEBD and PEB.  

   a.  The evidence of record shows that the applicant was evaluated by a MEBD on 5 September 2007 and referred to a PEB.

   b.  The evidence of record shows that on 22 October 2007 an informal PEB found the applicant’s chronic pain, left knee and right shoulder, and bilateral plantar fasciitis as not meeting medical retention standards.  The evidence of record also shows the PEB found the applicant unfit for chronic pain, left knee and right shoulder, and rated him at 10 percent in accordance with the USAPDA’s existing pain policy.

   c.  The evidence of record shows that the applicant’s sleep apnea and mood disorder were found to meet medical retention standards.  In this regard, the evidence of record shows that the applicant’s use of a CPAP machine was considered and that clarifying memoranda from the MEBD were provided on
8 and 10 October 2007 to the PEB explaining why his sleep apnea meets retention standards, why there were no valid psychiatric diagnosis at the time of the applicant’s MEBD, and that the shoulder ROM limits were due to pain and guarding; not a mechanical basis.

   d.  The evidence of record shows the PEB recommended the applicant’s separation with severance pay, the applicant concurred with the findings on
23 October 2007, and he waived his right to a formal PEB hearing.  Thus, the applicant was honorably discharged on 25 December 2007 based on disability with severance pay.

3.  The evidence of record shows that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other government agency), in its discretion, awarded the applicant a higher disability rating than that which he received from the U.S. Army, is a prerogative exercised within the policies of that agency.

4.  There is no evidence to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the applicant's disability processing.  Therefore, the applicant is not entitled to correction of his records to show an adjustment to his disability rating or physical disability separation.

5.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless 
there is substantial credible evidence to rebut the presumption.  Since there is no evidence of record to show that the applicant's medical conditions in question at the time were found medically unfitting for retention in accordance with Army Regulation 40-501, there was no basis for consideration of any additional disability rating.  Thus, the applicant is not entitled to correction of his PEB proceedings to show he was found unfit for the(se) condition(s) or increased permanent disability rating(s).  As a result, the applicant's PEB proceedings are presumed proper and equitable.

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:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20080016168



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ABCMR Record of Proceedings (cont)                                         AR20080016168



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