IN THE CASE OF:	  

		BOARD DATE:	       14 October 2009 

		DOCKET NUMBER:  AR20090003351 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant receive an overall Army disability rating of 70 percent effective on the date the applicant was permanently retired.

2.  Counsel states that the applicant received the following disability ratings under the Veterans Affairs Schedule for Rating Disabilities (VASRD):  
20 percent rating for Diabetes Mellitus (DM); 10 percent for chronic low back pain; 10 percent for chronic neck pain; and 0 percent rating for a combination of pulmonary problems including asthma and sinus problems.  Counsel maintains that when the applicant was evaluated and placed on the Temporary Disability Retired List (TDRL) it was apparent the oral medications were not controlling his diabetes.  He adds that the applicant was placed on insulin and his dosage was increased from 10 units twice a day to 20 units twice a day.  He opines that the VASRD calls for a rating of 20 percent if the condition can be controlled by oral medications or 40 percent for the use of insulin.

3. Counsel adds that the Medical Evaluation Board (MEB) established that the applicant's neck and lower back conditions exceeded the 10 percent rating criteria and each condition should have been rated at 20 percent.  He quotes the VASRD's general rating formula for diseases and injuries of the spine and argues that the applicant’s conditions are not based on a simple degree of limitations of motion, but rather the pain associated with the condition.  He states that it is clear from the comments in the medical evaluation that the level of pain experienced by the applicant, at the time of the evaluations, was above the 10 percent level.  

4.  Counsel states that the applicant's medical records indicate that he should have received ratings for a combination of pulmonary problems.  The applicant's chronic asthma and other related breathing difficulties were well documented and contributed to him being unfit for service.  Counsel states that a minimal rating of 10 percent should have been awarded; the applicant's sinus problem continued and necessitated sinus surgery.  Counsel concludes that if the informal Physical Evaluation Board (PEB) had properly considered the applicant's conditions he would have been awarded an overall rating of 68 percent which would have been rounded up to 70 percent.

5.  Counsel provides a copy of the PEB, Orders D023-06, medical records, applicant's self-authored statement, and TDRL reevaluation.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the United States Army Reserve (USAR) on 25 June 1980 after completing 8 years, 3 months and 
11 days in the Regular Army.  

2.  The applicant's medical records show clinical visits on the following dates for the following reasons:  18 August 1999, asthma; 13 June 2003, pain in right foot; 18 September 2003, chronic sinusitis; 23 September 2003, asthma; 
26 September 2003, nasal congestion; 2 and 5 July 2003, elbow pain; 
5 November 2003, results of "Nasal" Pathology Report; 7 April 2004, ankle pain, flu, and elbow pain; 14 July 2004, Respiratory Therapy with results of respiratory test. 

3.  The applicant provided a brief synopsis of his military background from the time he was called to active duty in December 1990 to he was removed from the TDRL.  

4.  On 9 June 2004, the applicant was notified of his eligibility for retired pay at age 60 (Twenty Year Letter).

5.  On 27 July 2004, the applicant underwent a PEB.  His chief complaints were recorded as follows:  DM requiring oral hypoglycemic agent and restricted diet; chronic low back pain without neurologic abnormality with thoracolumbar motion limited by pain with localized tenderness; and chronic neck pain without neurologic abnormality with a combined cervical range of motion of 170 degrees. The PEB noted that the MEB diagnosed three conditions that were not unfitting and not rated.  The applicant received a 20 percent disability rating for diabetes and 10 percent ratings for chronic low back pain and chronic neck pain.  The PEB found that based on a review of the objective medical evidence the applicant’s medical and physical impairments prevented reasonable performance of his duties as required by his grade and military specialty.  The PEB stated that the applicant’s condition was not sufficiently stable for final adjudication and, therefore, he was placed on the TDRL.  The board found that the applicant was physically unfit and recommended a combined rating of 40 percent. 

6.  On 27 July 2004, the board explained that the applicant's disability rating was not a permanent rating or retirement and that the disposition could be changed while on the TDRL.  The board further stated that based upon the results of his periodic TDRL evaluation(s), he may be found fit for duty, permanently retired, or separated from the service with severance pay.  

7.  On the same date, the applicant signed the PEB recommendations and initialed acknowledging that he had been advised of the PEB findings and recommendations, that he received a full explanation of the results of the findings and recommendations, and that he had been advised of his legal rights pertaining to the PEB.  He also concurred with the PEB findings and recommendations and waived a formal hearing.  

8.  On 11 September 2004, the applicant was placed on the TDRL.

9.  On 19 October 2005, the applicant underwent a TDRL reevaluation for chronic neck pain, range of motion of the cervical spine, low back pain, and diabetes Type II.  Additionally, numerous lab tests were performed.  The physical examination revealed that the applicant was able to ambulate without the assistance of a cane or other assistive devices.  The applicant denied any numbness or tingling in his upper or lower extremities.  The examination also revealed the applicant had no underlying neurological deficits secondary to his back or neck.  The physician noted that the applicant remained on his medications to control his diabetes, but his hemoglobin had not met optimal control levels.  The optimal control level for his hemoglobin A1C was below 6.5 and the applicant's current level was 7.7.  Additionally, the physician offered that the applicant's diabetes was stable and not likely to significantly change in the near future.  

10.  Orders D023-06, dated 23 January 2006, show the applicant was removed from the TDRL and permanently retired with a 40 percent disability rating. 

11.  A printout of the applicant's medication shows that, on 18 August 2008, he was placed on insulin injections of 10 units to be taken every day at bedtime. 
12.  In the processing of this case, the Board obtained an advisory opinion from the United States Army Physical Disability Agency (USAPDA), Walter Reed Army Medical Center.  The USAPDA recommended denial of the applicant's request to have his disability increased to 70 percent.  The USAPDA stated that on 
17 March 2004, the MEB revealed that the applicant complained of pain in his back and neck when flexed and within his other ranges of motion.  The applicant complained of numbness and tingling in his lower extremities, but there were no findings of neurovascular abnormalities in his extremities.  The applicant also required oral medications to control his DM.  The USAPDA added that the applicant noted headaches which were diagnosed as muscle contracture headaches.  The USAPDA said that the applicant's case file does not contain any medications which had been routinely prescribed and taken by the applicant.  The USAPDA relayed that the commander's statement only listed the applicant's neck and back problem as interfering with the applicant's duties.  His foot and elbow pain were noted, but the examining physician found both stable and not significantly affecting the applicant's duty performance.

13.  The USAPDA recited the PEB findings of DM, chronic low back pain, and chronic neck pain, and stated that there were no other conditions found unfitting at the time the applicant was placed on the TDRL with a 40 percent disability rating.  The USAPDA stated that on 24 July 2004, the applicant concurred with the PEB's findings and waved his rights to a formal hearing.  

14.  The USAPDA stated that the applicant underwent reevaluation while on the TDRL and the examination revealed chronic neck and back pain with range of motion limited by pain.  The USAPDA indicated that the evaluation found no mechanical basis for the range of motion limit.  Additionally, during the reevaluation, the applicant complained of some numbness and tingling in the extremities, but the evaluation found full strength and sensation intact distally in all extremities with good reflexes.  The applicant's DM was also adequately controlled by oral medications.

15.  The USAPDA stated that on 28 December 2005, an informal PEB found the applicant unfit for DM with a 20 percent disability rating, chronic back pain at 
10 percent, and chronic subjective neck pain at 10 percent.  The PEB found no neurologic abnormalities in the extremities that warranted findings of unfitness and compensation since these were the only conditions for which the applicant was placed on the TDRL.  The USAPDA added that the applicant's rating of 
20 percent for his DM was correct as the applicant was not prescribed insulin at the time of his removal from the TDRL and subsequent use of insulin does not result in retroactive changes in the ratings.  Additionally, the USAPDA opined that the ratings for the back and neck were correct as limits of range of motion based solely on pain were not ratable.  The USAPDA concluded that on
10 January 2006, the applicant concurred with the PEB's findings, submitted no appeal or rebuttal, and waived his right to a formal hearing. 

16.  On 20 August 2009, the applicant's counsel submitted his response to the advisory opinion and indicated the applicant’s record shows at the time the applicant was permanently retired in 2006, his diabetes were unstable.  Counsel indicated that by August 2008 the applicant was required to inject insulin at the rate of 10 units daily; therefore, he should have remained on the TDRL.  He argues that the USAPDA’s statement that the applicant was on oral medications at the time of retirement is untrue.  He argues that the medical evaluation report for his TDRL clearly states that the medications were not controlling the applicant's diabetes.  He quotes the medical evaluation as stating that “the applicant had not met the optimal control level which is below 6.5.”  Counselor maintained that the applicant's control level was at 7.7.  

17.  Counsel discounted the USAPDA’s statement that the applicant's DM worsened after removal from the TDRL and argued that the applicant's condition was not under control at the time he was retired and that he required continuation on the TDRL. Counsel also argued that even though the agency maintained that only conditions considered by the PEB prior to the TDRL can be considered during reevaluation, this statement only applies if the PEB properly considered all of the medical conditions at the initial PEB.  Counsel added that the pulmonary problems and the injury to the applicant's foot and elbow were well documented in his medical records and contributed to him being unfit.  Therefore, they should have been considered by the PEB.  Additionally, counsel argued that pain severely limits the range in which a person can move and if the applicant was rated at 20 percent for both his neck and back this would correctly reflect the degree of his actual impairment.

18.  The applicant failed to provide a copy of his 17 March 2004 MEB and his 
28 December 2005 PEB.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  PEB’s are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to 


evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

20.  The same regulation provides, in pertinent part, that often a Soldier will be found unfit for any variety of diagnosed conditions which are rated essentially for pain.  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.  However, lack of objective findings does not constitute a valid reason for finding a Soldier unfit by analogy to a neuropsychiatric disability or assuming that the Soldier is malingering.  “Rating by analogy to degenerative arthritis as an exception to analogous rating policies…. may be assigned 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.

21.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Because of differences between Army and the Department of Veterans Affairs (VA) applications of rating policies, differences in ratings may result.  Unlike the VA the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

22.  This regulation further states that 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. 

23.  Information obtained from the internet shows the common value system for Hemoglobin A1C as follows:  Normal, Less than 6.5; Excellent, 6.5-7.5; Good, 7.5-8.5; Fair, 8.5-9.5; and Poor, Greater than 9.5.


DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was found unfit for duty for DM, chronic low back pain, and chronic neck pain.  He also had three other conditions that were considered by the MEB, but they were found not to be unfitting and therefore, not rated.  The applicant did not provide a copy of his MEB, but from the evidence provided it appears the three conditions that were considered but unrated consisted of asthma, foot, and elbow problems.  According to the USAPDA, the commander only listed the applicant's neck and back problems as unfitting in his MEB statement.  The applicant received an overall disability rating of 40 percent.  The available evidence also shows that, on 27 July 2004, he concurred with the PEB findings and he did not submit a rebuttal or an appeal.  Therefore, on 11 September 2004, the applicant was placed on the TDRL.  

2.  On 19 October 2005, the applicant underwent a TDRL reevaluation.  The USAPDA indicated the evaluation revealed chronic neck and back pain with range of motions limited by pain, but there was no mechanical basis for the range of motions limit.  Additionally, the evaluation found the applicant had full strength and sensation intact distally in all extremities with good reflexes and his DM was adequately controlled by oral medications.  Although counsel maintains the applicant should have received a higher rating for pain, the evidence of record shows the applicant received a combined rating of 20 percent, this included
a 10 percent rating for low back pain and a 10 percent rating for chronic neck pain, which is the maximum percentage authorized for pain.

3.  On 28 December 2005, an informal PEB found the applicant unfit due to DM, chronic back pain, and chronic neck pain.  On 10 January 2006, the applicant concurred with the PEB's findings, submitted no appeal or rebuttal, and waived his right to a formal hearing.  He was subsequently removed from the TDRL on 23 January 2006 and permanently retired.  

4.  The applicant's records were reviewed by a MEB and two PEBs.  It is reasonable to presume that if the applicant was not satisfied with the findings and recommendations rendered by the boards, he should have, at a minimum nonconcurred with the board findings and or either submitted an appeal or requested a formal hearing.  The fact that he and his counsel now state, 3 years later, that the PEB erred and did not consider all of the applicant's medical conditions is not sufficient evidence to justify increasing his medical retirement to 70 percent.

5.  Counsel has provided no evidence to show the applicant's medical conditions were not properly considered and evaluated at the time of the MEB, or PEBs, and subsequent removal from the TDRL.  Although counsel argues that the applicant's DM was unstable, the evidence shows that his DM was being controlled with oral medications and his control level was at 7.7 which is considered good and supports the physician’s statement that the applicant's DM was stable.  

6.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the applicant's record is in error or unjust.  The applicant/counselor has failed to submit evidence that would satisfy this requirement.  Consequently, there is no basis for increasing the applicant's disability rating.

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)                                         AR20090003351



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ABCMR Record of Proceedings (cont)                                         AR20090003351



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