IN THE CASE OF:	

		BOARD DATE:	       8 OCTOBER 2009

		DOCKET NUMBER:  AR20080017169 


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 ratings be changed to 60% and that his injuries be deemed to have been caused by an instrumentality of war while in the line of duty during a period of war.

2.  The applicant states, in effect, that he was retired by reason of permanent disability with a 40% disability rating; however, he should have been rated at least 50 to 60% and his injuries should have been deemed to have been caused by an instrumentality of war.  He goes on to state that the Physical Evaluation Board (PEB) ignored compelling evidence, disregarded regulations, and sought to minimize his disability rating.  He also states that his back was broken while he was serving in Iraq according to an X-ray reading and that he was recently diagnosed by the Department of Veterans Affairs (VA) as suffering from a Traumatic Brain Injury (TBI).  He continues by stating that he can only assume that the PEB was unaware of the fact that he suffered two fractured lumbar vertebrae.  He further states that the PEB failed to provide a full and fair hearing as required by law and that they erred on two critical points being that they found his injuries were not caused by an instrumentality of war and they failed to rate his disabilities in accordance with the applicable laws and regulations because they did not give him a rating for his condition of bilateral hammertoes.

3.  The applicant provides a nine-page letter to his Congressional Representative explaining his application and his contentions along with 30 numbered enclosures. 


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's injuries be deemed to have been caused by an instrumentality of war and that his disability rating be increased accordingly.

2.  Counsel states that the issues raised by the applicant on his application to the Board amply advance his contentions and substantially reflect the probative facts needed for an equitable review.

3.  Counsel provides no additional documents or argument.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a United States Army Reserve second lieutenant on 17 March 1978 and was ordered to active duty on 7 May 1978.  He completed his training as an infantry officer and was transferred to Germany for duty in the Berlin Brigade.  He was promoted to the rank of first lieutenant on 7 June 1980 and on 28 September 1981, he branch transferred to the Engineer Corps.  He was promoted to the rank of captain on 1 December 1981 and was transferred to Fort Hood, Texas in 1982, after attending the Engineer Officer Advanced Course.

2.  On 1 December 1989, the applicant was promoted to the rank of major in the Regular Army and on 31 July 1992, he was honorably discharged under the provisions of Army Regulation 635-120 (Voluntary Incentive Program - Special Separation Benefit (SSB)).  He had served 14 years, 2 months and 25 days of total active service and he was paid $88,885.50 in SSB payments.

3.  On 4 August 1992, he again accepted a Reserve commission in the rank of major and was assigned to the USAR Control Group (Individual Ready Reserve).  He was promoted to the rank of lieutenant colonel, Corps of Engineers, on        30 November 1996.  He was issued his 20-year letter on 6 January 2000.

4.  The applicant was ordered to active duty in support of Operation Iraqi Freedom on 13 June 2004 at Fort Bliss, Texas and was transferred to Iraq/Kuwait on 25 June 2004 where he served as a Deputy (Engineer) District Commander - Forward.  He served in Southwest Asia until 22 April 2005 when he was medically evacuated back to Fort Bliss for further medical evaluation and treatment.

5.  On 21 June 2005, a Medical Evaluation Board (MEB) convened at William Beaumont Army Medical Center in El Paso, Texas to evaluate the applicant's diagnosed conditions of cervical spondylosis with myelopathy; lumbar spondylosis; chrondromalacia patellae, left knee; osteoarthritis (ankle and midfoot, bilateral); hallux limitus, right foot; flexible hammertoes, bilaterally, and peroneal tendinitis, left foot (found to meet retention standards).  The MEB recommended that the applicant be referred to a PEB.

6.  On 3 August 2005, an informal PEB convened at Fort Lewis, WA to consider the applicant's diagnosed conditions of chronic radiating neck pain with symptoms pre-dating recent activation but becoming worse after activation.  Imaging shows degenerative disc disease at several levels with herniated disc at C5/C6 and C6/C7.  Exam shows decreased motion, paraspinal tenderness and no clinical signs of radiculapathy.  The PEB recommended a 20% disability rating.  The PEB also rated the applicant for bilateral hammer toes 2 through 5 and recommended a 10% disability rating.  The PEB recommended no disability ratings (0%) for the remainder of his diagnosed conditions.  The PEB recommended that the applicant be retired by reason of permanent disability with a 30% disability rating.

7.  The PEB Proceedings are not present in the available records; however, the copies provided by the applicant suggest that the applicant did not concur with the findings and recommendations of the PEB.  On 8 September 2005, the applicant submitted a memorandum to the president of the PEB requesting a more favorable adjudication of his physical disability ratings.  He stated that he believed compelling evidence existed for higher ratings of both his lumbar spine and ankles and he went on to state that his condition was the result of an instrumentality of war, in that his injuries to his cervical and lumbar spine were both the direct result of wearing heavy combat loads while riding in armored SUVs and HUMVEEs at high speed on poor roads in rural areas.  He submitted third party statements and numerous additional medical documents in support of his claim.

8.  On 20 September 2005, a formal PEB convened at Fort Lewis.  He appealed the findings of this PEB and on 5 October 2005 a new formal PEB found the applicant was physically unfit and recommended that he be retired for permanent disability with a combined 40% disability rating.  The PEB recommended that the applicant receive a 20% disability rating for chronic radiating low back pain and degenerative disc disease, a 20% disability rating for radiating neck pain, and a 10% disability rating for osteoarthritis of the ankles and feet (including hammertoes).  The PEB also found that his retirement was not based on a disability from an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the line of duty during a period of war as defined by law and found that the disability did not result from a combat-related injury as defined in the 26 United States Code, section 104.

9.  The applicant did not concur with the findings and recommendations and submitted a rebuttal to the PEB findings on 17 October 2005 contending that the PEB had not given him a fair and just hearing that the board had erroneously combined his hammer toe disability with osteoarthritis of the ankles and feet with a 10% disability rating and had determined his injuries were not an instrumentality of war.  He requested that the PEB’s findings be changed to reflect a 50% disability rating due to injuries caused by an instrumentality of war.

10.  On 18 October 2005, the PEB responded to the applicant's appeal to the effect that the board believed his case had been properly evaluated in accordance with Army Regulations and policies and assured the applicant that the members had considered all relevant evidence and arguments submitted in his case.  The board also advised the applicant that all of his injuries existed prior to his mobilization and that they had changed only to the extent of natural progression.  He was further advised that his case and rebuttal were being forwarded to the Army Physical Disability Agency for further review and processing and that he should forward any additional evidence he acquired for consideration by that agency.  

11.  On 1 November 2005, the applicant was medically retired by reason of permanent disability, under the provisions of Army Regulation 635-40, paragraph 4-24B(1) with a 40% disability rating.  He had completed 1 year, 4 months and 19 days of active service during the current period and he had completed 15 years, 11 months and 20 days of total active service.

12.  Department of Defense Instruction (DODI) Number 1332.38 (Physical Disability Evaluation) implements policy, assigns responsibility and prescribes procedures for evaluating Soldiers for service incurred or service aggravated conditions.  It provides, in pertinent part, that an instrumentality of war is a vehicle, vessel, or device designed primarily for Military Service and intended for use in such service at the time of the occurrence of the injury.  It may also be a vehicle, vessel, or device not primarily for Military Service if use of or occurrence involving such a vehicle, vessel or device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.  There must be a direct casual relationship between the use of the instrumentality of war and the disability, and the disability must be incurred incident to a hazard or risk of the service.

13.  The Veterans Affairs Schedule for Rating Disabilities (VASRD) provides, in section 4.22 (Rating of disabilities aggravated by active service) that in cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service whether the particular condition was noted at the time of entrance into the active service, or it is determined upon the evidence of record to have existed at the time.  It is necessary therefore, in all cases of this character to deduct from the present degree of disability the degree, if ascertainable, of the disability existing at the time entrance into active service, in terms of the rating schedule, except that if the disability is total (100 percent) no deduction will be made.  The resulting difference will be recorded on the rating sheet.  If the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made.  The maximum rating for "Hammertoes" is 10% when the diagnosis is "All toes, unilateral without claw foot" and 0% for "Single toes." 

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that "Pyramiding" is the term used to describe the application of more than one rating to any area or system of the body when the total functional impairment of that area or system can be reflected under a single code.  All diagnoses that contribute to total functional impairment of any area or system of the body will be merged with the principal diagnosis, for rating purposes, unless specifically exempted in section II of Appendix B.

15.  Title 38, United States Code, sections 310 and 331, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

16.  There is a difference between the VA and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was not fairly rated by the PEB and that his injuries should have been deemed to have been caused by an instrumentality of war have been carefully considered.  

2.  Although it is unfortunate that the applicant's pre-existing conditions were aggravated by his active duty service, there is insufficient evidence in his case to establish that any of his conditions were the resultant cause of an instrumentality of war as defined under the DODI.  An instrumentality of war is a vehicle, vessel, or device designed primarily for Military Service and intended for use in such service at the time of the occurrence of the injury.  Most military vehicles, and presumably the types of vehicles the applicant rode in while performing his duties as a Deputy District Engineer Commander, are not designed primarily for military service.  In addition, riding over rough roads is not a hazard peculiar to military service.  

3.  The applicant's contention that his diagnosis of "Hammertoes" was not properly evaluated has been noted.  The VASRD does provide for a maximum rating for "Hammertoes" of 10% when the diagnosis is "All toes, unilateral without claw foot" and 0% for "Single toes."  In the applicant’s case, his hammertoes disability was combined with another, similar rating (osteoarthritis of the ankles and feet) in order to avoid "Pyramiding."  Regulatory guidance is to merge all diagnoses that contribute to total functional impairment of any area or system (as in the applicant’s case, the lower extremities) of the body will be merged with the principal diagnosis for rating purposes.

4.  The applicant's contention that the PEB ignored compelling evidence, disregarded regulations, and sought to minimize his disabilities has also been noted.  All indications in the available evidence shows the applicant was afforded and took advantage of every opportunity to which he was entitled to effectively state his case to the PEB and there is no evidence to suggest the applicant's concerns were not properly addressed by the PEB or that his conditions were not properly evaluated.

5.  The available evidence in this case indicates that the applicant was properly evaluated for his medical conditions by the PEB and that he was afforded all of 


his due process rights during the evaluation of his case.  It is also evident that more than one PEB considered his arguments regarding his diagnosis of hammertoes and the issue of whether it was caused by an instrumentality of war and that the applicant was given proper consideration.

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 him in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   ___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)                                         AR20080017169



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ABCMR Record of Proceedings (cont)                                         AR20080017169



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