IN THE CASE OF:	

		BOARD DATE:	  28 April 2009

		DOCKET NUMBER:  AR20090002475 


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 reconsideration of the Board's denial of his request to have his military records show that he was 50 percent physically disabled at the time of his release from active status and transfer to the Retired Reserve.

2.  The applicant states, in effect, that the Board erred in consideration of his first request when it did not find his contentions that the Physical Evaluation Board (PEB) did not properly rate his disability in accordance with the Veterans Affairs Schedule for Rating Disabilities (VASRD) as directed by Department of Defense (DOD) letter dated 14 November 1996 to be valid.  He also states that the Board did not address why his contention regarding his shoulder was not valid.

3.  The applicant provided no new documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080006851, on 20 November 2008.

2.  The applicant's assertion that the Board did not address why his contention regarding his shoulder was not valid and that the Board erred in several items are new arguments which require the Board to reconsider this case.
3.  In the Board's first consideration of his case, the Board found, in pertinent part that:

	a.  On 12 July 2006, a formal PEB convened to evaluate the applicant's physical condition.  The applicant's chronic back pain due to degenerative disc disease with S1 joint arthritis, without neurological abnormality or thoracolumbar ROM limited by pain, with localized tenderness, was rated at 10 percent disabling.  The applicant's bilateral knee pain due to osteoarthritis, without limitation of motion, was rated at 10 percent disabling.  The applicant's chronic pain of his left shoulder, without limitation of motion due to impingement, was rated at zero percent disabling.  The proceedings indicate that the PEB reevaluated all available medical records and the sworn testimony of the applicant.  The PEB found the applicant physically unfit to perform the duties required by his grade and military occupational specialty (MOS).  The PEB awarded the applicant an overall physical disability rating of 20 percent and recommended that he be separated with severance pay if otherwise qualified.  The proceedings show that one of the six exhibits was a memorandum from the flight surgeon (Colonel W____).

	b.  The Department of Veterans Affairs (VA) rendered the applicant an overall disability rating of 60 percent, effective 11 August 2006.  The VA based its overall rating on the following individual disability ratings: 

		(1)  Cervical spine degenerative disc disease (20 percent);

		(2)  Thoracolumbar spine degenerative disc disease (10 percent);

		(3)  Left shoulder impingement syndrome with acromioclavicular separation, status post arthrogram surgical procedure (10 percent);

		(4)  Right shoulder sprain (10 percent);

		(5)  Left knee degenerative joint disease (DJD), status post arthroscopy surgery (10 percent);

		(6)  Right knee DJD, status post arthroscopy surgery (10 percent);

		(7)  Tinnitus (10 percent);

		(8)  Hypothyroidism with multinodular goiter (10 percent);

		(9)  Bilateral hearing loss (Zero percent);
	
		(10)  Hypertension (Zero percent); and

		(11)  Non-malignant lipoma on the right shoulder (Zero percent).

	c.  In the processing of the first case an advisory opinion, dated 12 June 2008, was obtained from the Agency Legal Advisor, U.S. Army Physical Disability Agency (USAPDA).  It states that the applicant was evaluated by a MEB on 26 May 2006.  The MEB listed the following diagnoses:  (1) back pain - degenerative disc disease; (2) knee pain; (3) back pain - S1 joint arthritis; (4) left shoulder pain - consistent with impingement syndrome.  The MEB also listed plantar fasciitis as being medically acceptable.  The MEB physical findings of the applicant's back noted that there was no specific trauma or acute injury related to the applicant's back pain.  There was tenderness to palpation at his lumbar area, but he had full strength on all extremities with no atrophy.  He could heel and toe walk normally and all sensations were intact.  The ROM of his back revealed flexion to be 60 degrees with "motion limited by pain."  Radiology revealed degenerative joint disease (DJD) of the spine and knees.  The applicant's knees were painful, but had full ROM with mild effusion.  His left shoulder had full ROM with full strength and was neurovascular intact.  There were some mild degenerative changes noted.  The applicant concurred with the MEB findings on 19 June 2006.

	d.  The advisory opinion further stated that on 20 June 2006, an informal PEB found the applicant physically unfit due to his back (10 percent), knee (10 percent), and shoulder (zero percent) conditions.  The applicant non-concurred and requested a formal hearing.

	e.  The advisory opinion also stated that on 12 July 2006, a formal PEB affirmed the informal PEB's findings and recommended separation with severance pay.  The applicant provided a statement to the PEB requesting a 20 percent disability rating for his back due to ROM limitations and a statement from a flight surgeon who observed complaints of low back pain during a flight in July 2005 with subsequent examination revealing DJD of the spine.  The applicant contended that the PEB was not following all the applicable rules related to rating ROM limitations in accordance with the rules of the VA and the PEB was not authorized to use the provisions of Army Regulation (AR) 635-40, which requires a mechanical basis for ROM limitations.  The USAPDA considered all of these factors offered by the applicant, but found that the PEB had properly decided the case based on the existing guidance and regulations then in existence.


	f.  The advisory opinion stated that DOD Instruction (DODI) 1332.39,6,1, indicates that the VA rating code is "primarily used as a guide" for rating Soldiers' conditions that are found unfitting.  However, not all aspects of the rating code are to be used and 1332.39 contains significant guidance, explanations, and alternate rating guidance not found in the VA rating code.  Section E2.A1.13.1, DODI 1332.39 requires that when rating joints for limitation of motion where DJD is present requires "objective" evidence of that limitation, plus radiographic evidence.  The radiographic evidence is not considered the objective evidence required for such ratings.  Although relating to past VA back criteria, the DODI 1332.39 criteria for rating backs found at E2.A1.1.19, required "objective" evidence of specific findings to warrant higher ratings.   AR 635-40, paragraph 
B-29e, guidance simply continued the DODI guidance that certain ratings for backs and ROM be established by objective evidence and not by subjective complaints of pain alone.  If the applicant's back condition was medically determined to have DJD to such an extent that the DJD was the reason that his lumbar joints could not flex beyond 60 degrees, then the applicant would be entitled to a 20 percent disability rating in accordance with the VA general rating formula for diseases and injuries of the spine.  However, the applicant's medical evidence did not support such a finding.  The DODI and AR requirements relate to what kinds of evidence are acceptable when rating under the VA code and are not in violation of the DOD guidance or statute.  The applicant's reference to the 29 January 2008 NDAA provisions which require changes to ratings and procedures only mandated changes from that date forward.  Congress did not authorize retrospective application.  The PEB's rating for the spine in 2006 was correct and supportable in accordance with all applicable statutes, directives and regulations at that time.

	g.  The advisory opinion stated that the applicant's disability rating for his bilateral knees for DJD was correct at 10 percent since the medical evidence indicated that there were no ratable ROM limits.  His shoulder impingement was rated analogous to DJD, based on the Table of Analogous Codes, USAPDA Policy Memorandum Number 12, and since there was only one joint involved, with no ROM limits, it was properly rated at zero percent.

	h.  The advisory opinion recommended that the applicant's military records remain unchanged.

	i.  The applicant rebutted the advisory opinion, stating that he spoke with a lieutenant colonel at the PEB who told him that the PEB was required to review all cases for the previous 90 days.  He further states that according to his legal counsel, an average ROM is to be used for determining the ROM rating and his average is 57 degrees.  The applicant also quotes, in part, from the radiology report for his spine saying that there are three major joint groups involved and that the pain is only localized if you consider the entire spine as local.  With regard to the requirement for "objective" evidence, he contends that the flight surgeon's observation of his incapacitating incident is objective medical evidence.  The applicant states that paragraph two of the advisory opinion contradicts the findings of the MEB which states, "Due to the Soldier's shoulder symptoms, he has difficulty performing certain maneuvers required to operate an aircraft.  While his symptoms may improve with ongoing therapy, he may need surgical intervention in the future."  The applicant says that he had no strength with his arm above shoulder level and his commander wrote a letter at the time stating that he had limited ROM with his arm above shoulder level.  Lastly, he contends that because the Army did not perform shoulder surgery, he had to pay to have the needed surgery and that the VA had rated his shoulder movement at less than 40 degrees with limited strength. 

	j.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201, for the physical disability retirement of a member who has an impairment rate at least 30 percent disabling.

4.  In the Board's first consideration of his case, the Board concluded, in pertinent part that: 

	a.  The applicant's contention that the PEB did not consider the memorandum written by the flight surgeon (COL W___) was not supported by the available evidence, in that the subject memorandum was included as an exhibit to the formal PEB proceedings;

	b.  The advisory opinion from the USAPDA clearly stated that, if the applicant's back condition was medically determined to have DJD to such an extent that the DJD was the reason that his lumbar joints could not flex beyond 60 degrees, then the applicant would be entitled to a 20 percent disability rating in accordance with the VA general rating formula for diseases and injuries of the spine.  However, the medical evidence did not support such a finding;

	c.  A disability rating is not based solely upon the existence of a physical defect, but rather upon the extent to which the defect hampers the individual performance of duty;

	d.  The applicant had not provided any new evidence that was not previously considered by the PEB.  Furthermore, the applicant's argument was not sufficient to overcome the evaluation of the PEB and review by the USAPDA;

	e.  Furthermore, the applicant had not provided sufficiently convincing evidence or argument showing that the PEB failed to properly rate his physical disabilities; and

	f.  The applicant had failed to submit evidence that would satisfy the requirement of showing to the satisfaction of the Board, or that it must otherwise satisfactorily appear, that the record is in error or unjust.

5.  Army Regulation 635-40, Appendix B, Army Application of the VASRD, paragraph B-24, VASRD Code 5003, Arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis, provides that inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.  Rating by analogy to degenerative arthritis as an exception in unusual cases with a 20 percent ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.  To do otherwise would be to combine pain ratings so as to achieve a percentage of disability that would result in erroneous disability retirement.  (Severe eye pain is an exception).

6.  Army Regulation 635-40, Appendix B, paragraph B-29, VASRD Codes 5000-5295, Ratings involving joint motion, provides that in the measurement of joint motion it is incumbent upon the medical examiner to utilize the standardized descriptions portrayed in figure B–2.  When the reported limited range of motion falls between two points specified in the VASRD the higher percentage of disability will apply.  Ankylosis is the absence of motion of a joint.  In application, it is complete fixation, or a limitation of motion so severe in degree that the amount of movement is negligible.  Avoid the inclination (usually encountered when an analogous rating of an extremity is necessary) to use an analogy such as "other impairment of" elbow or knee (5209 or 5257) when the actual impairment is a limitation of motion of the joint properly ratable as limitation of flexion or extension of the part distal to the joint.  In some cases of limitations or of other abnormal joint motion, the basic cause is injury to muscle or tendon rather than to bone or joint.  A careful distinction must be made for appropriate rating. Ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found.  Muscle contractures and arthritic degeneration of bone are examples of a mechanical limitation of motion. Contrariwise, joint pain resulting in loss of motion does not constitute a mechanical basis for restricted motion.  The American Medical Association Guides to the Evaluation of 


Permanent Impairment (3rd edition) contain excellent descriptions for quantifying disability on the basis of measured loss of motion or function.  The recommended ratings within the guides cannot be used in lieu of VASRD ratings.  However, the described severity of the disability can often be factored into assigning a correct VASRD rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided extensive documentation and detailed arguments concerning the appropriateness of his physical disability rating.  Primarily, he argues that the PEB failed to follow a 1996 DOD Directive.

2.  Simply stated, the applicant's range of motion limitation for his back is only relevant if the limitation is due to "mechanical" reasons (physical defects).  Since the limitation of motion is due to pain, the applicant's range of motion is not a factor in establishing his disability rating.

3.  In his request for reconsideration, the applicant asserted that the Board did not address why his contention regarding his shoulder was not valid.  The advisory opinion stated that the applicant's MEB showed his left shoulder had full ROM with full strength and his neurovascular was intact.  There were some mild degenerative changes noted.  The applicant concurred with the MEB findings on 19 June 2006.  His shoulder impingement was rated analogous to DJD, based on the Table of Analogous Codes, USAPDA Policy Memorandum Number 12, and since there was only one joint involved with no ROM limits it was properly rated at zero percent.  The applicant has not provided any evidence or argument which would refute the USAPDA's assessment of the case or otherwise show he was improperly rated for this condition.

4.  As such, the applicant has not provided sufficiently convincing evidence or argument showing the PEB failed to properly rate his physical disabilities.

5.  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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.



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 to amend the decision of the ABCMR set forth in Docket Number AR20080006851, dated 20 November 2008.


      _______ _ 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)                                         AR20090002475



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ABCMR Record of Proceedings (cont)                                         AR20090002475



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