IN THE CASE OF:	

		BOARD DATE:	  5 February 2009

		DOCKET NUMBER:  AR20080016919 


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, through his counsel, that he be medically retired from active duty with a disability rating of not less the 30 percent under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) diagnostic codes 5313 and 5314.

2.  The applicant defers his statement and submission of additional evidence to his counsel.


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be medically retired from active duty with a disability rating of not less the 30 percent.

2.  Counsel states the formal physical evaluation board (PEB) failed to provide the applicant and counsel adequate time to prepare for the formal hearing.  Counsel states the applicant elected a reserve retirement in lieu of severance pay.  Counsel provides a detailed account of the applicant's medical history.  Counsel states the formal PEB improperly rated the applicant's muscle weakness secondary to multiple surgeries for a bone tumor, VASRD diagnostic codes 5313 and 5314 as "moderate" at 20 percent rather than "moderately severe" at 30 percent.


3.  Counsel provides an 11-page brief with 20 numbered attachments identified in an index.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the Regular Army on 24 July 1967 for a period of 3 years.  After completing 2 years, 11 months, and 22 days of active service, characterized as honorable, he was released from active duty.  He then enlisted and served in the Ohio Army National Guard (OHARNG) from 14 October 1970 to 13 October 1973.  He again enlisted in the OHARNG on 21 January 1976 and continued to serve until his transfer to the Retired Reserve on 30 January 2006.

2.  The remaining evidence in this case was taken from counsel's brief and the 20 numbered attachments to that brief.

3.  The applicant was ordered to active duty on 10 February 2003 in support of Operation Iraqi Freedom.  He suffered an injury to his right hip in April or May 2003 in Kuwait.  

4.  A Medical Record Report from a Community-Based Health Care Organization (CBHCO), Virginia, dated 28 March 2005, provided the following diagnoses:

	a.  post-traumatic fibrous dysplasia right femur, s/p [status post] excision and failed frat, s/p re-excision, graft, and intramedullary rod fixation, in rehabilitation;

	b.  left gastrocnemius tear with 15-month delay in surgical repair, EPTS [existed prior to service], service-aggravated, in rehabilitation;

	c.  degenerative lumbar disc disease, EPTS, service-aggravated, needs further evaluation and treatment;

	d.  multiple partially treated dental fractures, EPTS, service-aggravated, needs evaluation and treatment;

	e.  probable right shoulder impingement, EPTS, service-aggravated, needs evaluation and treatment;

	f.  bilateral high-frequency hearing loss, EPTS, service-aggravated, needs further evaluation and treatment;

	g.  coronary artery disease, never symptomatic, s/p RCA [right coronary artery] stenting 1998, has clearly passed a trial of duty, medically retainable;

	h.  Dupuytren's contracture left middle finger, needs further evaluation; and

	i.  history of skin lesions needing further evaluation by a military dermatologist.

5.  On 11 August 2005, a medical evaluation board (MEBD) found the applicant not medically retainable for right leg chronic pain, s/p ORIF [open reduction internal fixation].  The MEBD found the applicant to be medically retainable for left gastrocnemius (superficial muscle of the calf of the leg) tear, degenerative lumbar disc disease, probable right shoulder impingement, bilateral high-frequency hearing loss, coronary artery disease, Dupuytren's contracture left middle finger, and hyperlipidemia.  The MEBD referred the applicant to a PEB.

6.  On 17 August 2005, the applicant indicated that he did not desire to remain on active duty.  He acknowledged he had been informed of the approved findings and recommendation of the MEBD and he agreed with both the findings and the recommendation.

7.  A physical evaluation/assessment, dated 15 September 2005, noted the applicant's right hip had full range of motion and the range of motion of his right knee was zero to 140 degrees.

8.  A statement from the applicant's commander, dated 9 August 2005, states the applicant was able to perform his duties until he was medically evacuated in November 2003.

9.  On 28 October 2005, an informal PEB found the applicant physically unfit under VASRD diagnostic codes 5313 (muscle group XIII) and 5314 (muscle group XIV) for chronic right leg pain and muscle weakness secondary to multiple surgeries for a bone tumor.  The PEB noted that physical examination revealed that the applicant walks with a limp, has tenderness at the front of his leg; full range of motion, stable knee without effusion.  Muscle testing showed 3+/5 strength for right hip flexors; abductors, extension, internal and external rotation with slight decreased range of motion of hip and knee.  Knee extensor was 3+/5 with knee flexion 4/5 with 2+ reflexes.  Sensory examination for bilateral lower extremities was within normal limits.  The PEB recommended a disability rating of 10 percent.

10.  The informal PEB found the remaining diagnoses from the MEBD to be not unfitting and therefore were not rated.

11.  The informal PEB noted that the applicant may qualify for retired pay for non-regular service and that he had the option of accepting disability severance pay and forfeiting his reserve retirement or he may be placed in an inactive reserve status and receive reserve retired pay at the age of 60 by forfeiting his disability severance pay.

12.  The informal PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay if otherwise qualified.

13.  On 10 November 2005, the applicant, after having received a full explanation of the results of the findings and recommendation and legal rights, did not concur with the findings and recommendation and elected a formal hearing.  The applicant also indicated that if separation without benefits is the final decision in his case, he elected to be transferred to the Retired Reserve in order to draw Reserve retired pay at age 60.

14.  On 12 December 2005, a formal PEB was held.  The applicant had elected to appear and did appear and was represented by counsel.  The formal PEB found the applicant physically unfit under the following VASRD diagnostic codes:

	a.  5313 (muscle group XIII) for chronic right leg pain and muscle weakness secondary to multiple surgeries for a bone tumor.  The PEB noted that physical examination revealed that the applicant walks with a limp, has muscle atrophy of the hip girdle muscles, tenderness at the front of his leg; full range of motion, and stable knee without effusion.  Muscle testing showed 3+/5 strength for right hip flexors; abductors, extension, internal and external rotation with slight decreased range of motion of hip and knee.  Sensory examination for bilateral lower extremities was within normal limits.  The PEB recommended a disability rating of 10 percent; and

   b.  5314 (muscle group XIV) for chronic right leg pain and muscle weakness secondary to multiple surgeries for a bone tumor.  The PEB noted that physical examination revealed that the applicant walks with a limp, has tenderness at the front of his leg; full range of motion, stable knee without effusion.  Muscle testing showed knee extensor was 3+/5 with knee flexion 4/5 with 2+ reflexes.  Sensory examination for bilateral lower extremities was within normal limits.  The PEB recommended a disability rating of 10 percent.
   
15.  The formal PEB found the remaining diagnoses from the MEBD to be not unfitting and therefore were not rated.  

16.  The formal PEB recommended a combined rating of 20 percent and that the applicant be separated with severance pay if otherwise qualified.  The formal PEB also found that the applicant's disability was not based on an injury or disease received as a direct result of armed conflict, caused by an instrumentality of war, or incurred during a period of war as defined by law.

17.  According to the transcripts of the formal hearing, the president of the board indicated that notification of the hearing was sent out on 23 November [2005].  When asked by the president of the formal PEB, the applicant stated that he did have 3 working days to prepare for his formal hearing.

18.  On 20 January 2006, the applicant submitted a rebuttal to the formal PEB.  He stated his counsel resigned subsequent to his formal hearing.  He restated his medical issues including the diagnoses that were found to be medically acceptable for retention.

19.  In a letter, dated 26 January 2006, the U.S. Army Physical Disability Agency (USAPDA), Washington, DC, responded to the applicant's rebuttal.  The USAPDA noted the applicant's disagreement with the finding of the formal PEB and reviewed his entire case.  The USAPDA determined that the applicant's case was properly adjudicated by the PEB which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination.  The USAPDA determined the findings and recommendations of the PEB were supported by substantial evidence and were therefore affirmed.

20.  In a letter, dated 24 March 2006, the USAPDA responded to a letter, dated 24 February 2006 (not submitted as evidence), from the applicant concerning the findings of his formal PEB.  The USAPDA provided a history of the applicant's processing in the PDES.  According to the USAPDA the applicant submitted another memorandum to the USAPDA on 27 January 2006 (not submitted as evidence).  The USAPDA indicated that the memorandum and enclosures were reviewed and it was determined that they provided no new evidence which required any change to the PEB's findings.  The USAPDA determined that the recommendations of the PEB were just and in conformance with the provisions of law and current regulations (in effect at the time) and that based on documentation in his case file, the applicant received all due process to which he was entitled.

21.  The USAPDA determined the applicant did receive proper and adequate attorney representation at the formal hearing and the applicant's generalized citation of regulatory guidance did not establish that his case experienced any material errors which substantially affected the findings of the PEB.  The USAPDA indicated that the applicant's file had been reviewed numerous times by both the PEB and the USAPDA and the applicant was only unfit for his right leg at the disability rating of 20 percent.  The USAPDA indicated that the applicant had elected to be transferred to the Retired Reserve.

22.  On 30 January 2006, the applicant was released from active duty by reason of disability, other.  An NGB Form 22 (Report of Separation and Record of Service) shows the applicant was separated from the OHARNG effective 30 January 2006 and transferred to the Retired Reserve.  The applicant's Army National Guard Retirement Points History Statement shows he had 36 years and 3 months of creditable service for retired pay.

23.  On 10 October 2007, the applicant turned age 60.

24.  Grading of muscle tests is used to determine a patient's physical therapy diagnosis and in assessing progress over time.  Objective observation includes determining the patient's ability to hold a test position, move through a full range of motion, or to overcome gravity.  Traditional grading has been described using either the terms "zero," "trace," "poor," "fair," "good," and "normal," or using a numerical scale from 0 through 5.  When using the numerical scale, 5 is considered normal, withstands strong pressure in test position, and 0 is a complete lack of muscle contraction.  In the numerical scale a "3+" is considered "fair plus," withstands slight pressure.  (Healthline.com)

25.  Section 4.56 of 38 Code of Regulations (CFR) provides that the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement.  Section 4.56 also provides that disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe.  

	a.  Moderate is described as a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles.

	b.  Moderately severe is described as Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound and a record of consistent complaint of cardinal signs and symptoms of muscle disability and, if present, evidence of inability to keep up with work requirements.

26.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that those members who do not meet medical retention standards will be referred to a PEB to determine whether they are physically unfit to perform their duties and if found unfit, to determine the percentage of disability to be awarded.  This regulation also provides that only 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.

27.  Army Regulation 635-40 further provides, in pertinent part, that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments.  

28.  Army Regulation 635-40 provides, in pertinent part, a Soldier will be allowed a minimum of 3 working days to prepare for a formal hearing.

DISCUSSION AND CONCLUSIONS:

1.  During the hearing for the formal PEB applicant stated that he did have 
3 working days to prepare for his formal hearing.  The president of the formal PEB determined upon review of the record that there was adequate information to adjudicate the case.  Therefore, counsel's contention of inadequate time to prepare for the formal hearing is without merit.

2.  The applicant concurred with the findings of his MEBD that found him to not meet retention standards only for the pain in his right leg.  If he believed that the PEB should have considered him for the remaining diagnoses that were determined to be medically retainable, he should have contested the findings of the MEBD at that time.

3.  The formal PEB corrected the informal PEB by separating the two muscle groups and rating each as 10 percent disabling.  This gave the applicant a combined disability rating of 20 percent.

4.  Muscle testing rated the applicant's muscle group XIII a fair plus (3+), withstands slight pressure with full range of motion.  Records do not show prolonged hospitalization for the injury.  These findings are consistent a determination of moderate disability.  Therefore, the disability rating for VASRD code 5313 is determined to be correct.

5.  Muscle testing rated the applicant's muscle group XIV a "fair plus (3+)," withstands slight pressure with full range of motion.  Records do not show prolonged hospitalization for the injury.  These findings are consistent a determination of moderate disability.  Therefore, the disability rating for VASRD code 5314 is determined to be correct.
6.  The applicant’s case file has been reviewed by the PEB and the USAPDA numerous times who found the applicant was unfit only for his chronic right leg pain and muscle weakness and that this finding was supported by substantial evidence and in compliance with applicable law or regulation.

7.  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 that 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)                                         AR20080016919



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ABCMR Record of Proceedings (cont)                                         AR20080016919



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