IN THE CASE OF:	  

		BOARD DATE:	       24 September 2009

		DOCKET NUMBER:  AR20090004191 


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, an increase of the disability rating awarded to him by the Physical Evaluation Board (PEB) and entitlement to retirement benefits.

2.  The applicant states, in effect, that the PEB did not fully consider all his medical conditions and supporting evidence when it granted him a 20 percent disability rating.  He states that the Department of Veterans Affairs (VA) rated the same medical conditions at 60 percent for back pain and 20 percent for left knee pain.  He states his PEB should be upgraded to include bilateral carpal tunnel syndrome, chronic neck pain with mild spondylosis and radiculopathy, chronic neck pain secondary to right shoulder pain, and right knee pain.  

3.  The applicant provides the following documents in support of his application: 

	a.  a copy of a DA Form 199 (PEB Proceedings), dated 12 August 2002;

	b.  a copy of a DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 14 June 2002 with supporting medical evidence;

	c.  a copy of a DA Form 3349 (Physical Profile), dated 14 June 2002;

	d.  a copy of his discharge order, dated 3 September 2002;

	e.  a copy of a U.S. Total Army Personnel Command, Alexandria, VA, memorandum, subject: Line of Duty Determination on (applicant's name and social security number), dated 27 June 2002;

	f.  a VA Rating Decision, dated 16 September 2003, which shows the following:

	    (1)  herniated nucleus pulposus, lumbar spine, with radiculopathy rated 60 percent disabling;

	    (2)  patellar tendonitis (overuse syndrome), left knee, with instability rated 10 percent disabling;

	    (3)  post-lateral and medial meniscectomy, left knee rated 10 percent disabling;

	    (4)  tinea pedis with onychophytosis, bilateral feet rated 0 percent disabling; and

	    (5)  pseudofolliculitis barbae rated 10 percent disabling.

	g.  a VA Rating Decision, dated 5 October 2004, which denied service connection for major depressive disorder with psychotic symptoms, denied reopening his claim for carpal tunnel syndrome, and continued 10 percent rating for patellar tendonitis and 0 percent rating for tinea pedis with onychomycosis;

	h.  a VA Rating Decision, dated 18 January 2005, which shows entitlement to monthly compensation based on housebound criteria from 24 May 2000 to 1 July 2000.  The VA denied his request for individual unemployability based on the fact that he was employed by a Federal government agency with his attendance status noted as leave without pay; and

	i.  a copies of medical records and reports that chronicle his medical treatment after his discharge from the U.S. Army Reserve (USAR).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of 
justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the USAR for assignment to a troop program unit (TPU) on 2 August 1991.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty (MOS) 51R (Carpentry and Masonry Specialist).  He was assigned to the Engineer Detachment (Utilities), USAR, at Fort Hood, TX.  He served continuously in the USAR as a member of a TPU from his enlistment date to his date of separation.  Records show the applicant's only period of active duty service was for 130 days of initial military training in an active duty for training (ADT) status.

3.  In September 1991, the applicant injured his left knee while in an ADT status at Fort Knox, KY.  The U.S. Total Army Personnel Command (USTAPC), Chief of Mortuary Affairs and Casualty Support Division, granted a presumptive finding of in line of duty on 27 June 2002.  

4.  On 27 May 1997, medical personnel at the troop medical clinic (TMC) at Fort McCoy, WI examined the applicant for low back pain.  The DA Form 2173 (Statement of Medical Examination and Duty Status) signed by the unit commander states the applicant was moving a toolbox and hurt his back.  The injury occurred while the applicant was in an ADT status.  There is no evidence that the DA Form 2173 was forwarded to the appropriate approval authority or that a final line of duty determination was rendered.

5.  During the applicant's physical examination in preparation for the MEB on 26 February 2002, the applicant's chief complaint was "middle to low back pain with spasms, bilateral knee pain, and the feeling of "needles" on the back of his legs and hands.  The notes show that the applicant injured his back during annual training in 1997.  Further, the physician stated the applicant was poorly conditioned with a slow gait.

6.  In two addenda to the MEB, dated 9 April 2002 and 8 May 2002, it was shown the applicant underwent a nerve conduction study in April 2002, which showed no electrodiagnostice evidence for tarsal tunnel syndrome with normal tibial motor and sensory studies bilaterally, normal surals and tibial F-waves and
H-reflexes bilaterally.  He had an electromyography (EMG) which was normal except for mild to minimal polyphasia in the cervials and lumbar paraspinals.  An 
EMG done in 2001 demonstrated mild carpal tunnel syndrome bilaterally and a myelogram in May 2001 showed mild spondylosis.  A computed tomography of the patient's cervical and lumbar spine demonstrated mild spinal stenosis at C6/C7 and mild at the C4-5 and L5/S1, disc protrusion without nerve root impingement.  The addendum that was reviewed and approved on 21 May 2002 continued with L-spine magnetic resonance imaging (MRI) demonstrated a posterolateral herniated disk at L4-5 and a left pericentral herniated disk at L5/SI without clear evidence of nerve root impingement.

7.  In the second addendum, dated 8 May 2002, a neurologist examined the applicant and found that his present condition appeared to have a small fiber peripheral neuropathy causing numbness and tingling in his hands and feet, and that there was no supportive evidence for a radiculopathy.   The neurologist noted the following:

	a.  mild carpal tunnel syndrome bilaterally that was found to be medically acceptable;

	b.  idiopathic small fiber neuropathy that was found to be medically unacceptable; 

	c.  mechanical low back pain and bilateral knee pain with the examining physician referring the applicant to an orthopedic physician; and

	d.  recommended the applicant follow up with his primary care physician for evaluation of diabetes based on elevated liver function and glucose tolerance test results. 

8.  On 31 May 2002, the applicant's MEB shows that after consideration of all clinical records, laboratory findings, and physical evaluations it found the following medical conditions/defects:

	a.  chronic lower back pain aggravated by severe deconditioning;

	b.  chronic neck pain with mild spondylosis;

	c.  bilateral knee pain and history of prior medical lateral meniscus tear debridement; and

	d.  idiopathic small fiber neuropathy.  


9.  The MEB shows that the approximate date of origin for all conditions/defects was in 2000, that all were incurred while entitled to base pay, that none existed prior to service, and that all were permanently aggravated by service.  The applicant indicated in item 12 of DA Form 3947 (MEB Proceedings) that he did not present views on his own behalf.  The applicant further indicated he did not desire to continue on active duty in a USAR status under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

10.  On 14 June 2002, the appropriate authority approved the findings and recommendations of the MEBD, which referred him to a PEB.  He also received a permanent profile, which shows that his P-U-L-H-E-S factors were rated P (physical capacity or stamina) "1," U (upper extremities) "3", L (lower extremities) "3," H (hearing) "1," E (eyes) "1," and S (psychiatric) "1," with "1" being a high level of medical fitness, "2" a medical condition or physical defect that requires some activity limitations, "3" shows a Soldier has one or more medical conditions that may require significant duty performance limitations, and "4" means a Soldier has a medical condition or limitation that severely limits his duty performance.

11.  On 20 June 2002, the applicant concurred with the MEB's findings and recommendations and waived a formal hearing.  He provided no rebuttal statements to the MEB's findings nor did he request representation by counsel.  The applicant's MEB was referred to the PEB.

12.  On 12 August 2002, an informal PEB convened and determined that the applicant was physically unfit due to chronic pain rated as moderate/constant from his from low back pain without neurologic abnormality and left knee post-arthroscopy rated as moderate/constant.  He was rated as 20 percent disabling.  This rating was rendered in accordance with the U.S. Army Physical Disability Agency (USAPDA) Policy/Guidance Memorandum # 13:  Rating Pain, dated
8 April 2002.  The PEB found that these medical and physical impairments prevented the applicant from reasonable performance of his military duties required of his grade and specialty.  

13.  In regards to the MEB's diagnosis of chronic neck pain with mild spondylosis and idiopathic small fiber neuropathy, the informal PEB found no compelling evidence to show that they were the proximate result of his military duty performance.  The MEB found no casual relationship between his military duties and his physical condition.  Therefore, they were not rated by the PEB.

14.  The PEB recommended that the applicant be discharged with severance pay, rated at 20 percent disabling.  
15.  Accordingly, on 20 September 2002, the applicant was discharged from the USAR in accordance with Orders D170-9 issued by the USAPDA on
3 September 2002.  He was authorized disability severance pay in the grade of specialist and his severance pay was calculated based on 2 years, 2 months, and 18 days of service.  The percentage of his disability was 20 percent and it was stated that his disability did not result from a combat-related injury.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points) shows that he had 9 years, 1 month, and 19 days in the USAR with 852 creditable points toward nonregular retirement. 

16.  In the processing of this case, on 4 June 2009, an advisory opinion was provided by the USAPDA's agency legal advisor.  The advisory official states, in effect, that there were no military "in line of duty" findings for injuries to the applicant's right knee, feet, or neck.  Further, the MEB did not examine or evaluate the applicant for shoulder pain.  The MEB physical exam found the applicant had free active range of motion of his C-spine and minimal restrictions to his back.  He exhibited full deep tendon reflexes with full strength in his extremities.  The applicant's complaint of carpal tunnel syndrome was mild and met medical physical retention standards.  His compliant of neck and shoulder pain were within acceptable medical retention standards.  The PEB also found that his neck pain and idiopathic neuropathy were not compensable for they were not the result of his performance of his military duties and specialty.  The additional complaints of right shoulder pain, cervical pain, carpal tunnel syndrome, and idiopathic small fiber neuropathy (feet and hands) were also found to not have incurred in the performance of his military duties.  

17.  The advisory official concluded that the PEB's findings and recommendations were supported by a preponderance of the evidence; they were not arbitrary or capricious; and they were not in violation of any statutes, directive or regulation in effect at the time of the applicant's separation. 

18.  The applicant submitted a rebuttal statement to the USAPDA advisory opinion on 13 July 2009.  In effect, the applicant refutes the advisory opinion, stating that adequate medical testing and evaluation was not done during the military medical evaluation in preparation for the MEB.  He states that if an MRI had been done the results would have shown that his L4-L5 disc protrusion which abuts the thecal sac and abuts the left L5 nerve root were the root causes of his back spasms and pain not "back condition aggravated by severe deconditioning" as stated in the MEB.  He continues his statement by presenting supporting evidence from the VA and private doctors who attest to his deteriorating medical health, which included surgery to alleviate his carpal tunnel pain.  He highlights a military permanent physical profile dated 14 June 2002, 
which was completed concurrently with the MEB process.  The medical reports and letters submitted from the VA and private doctors were dated after the date of the applicant's separation.  He concludes his statement by asking the ABCMR to reject the USAPDA's recommendation.  

19.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) prescribes policies, procedures, and mandated tasks governing line of duty determinations for Soldier's who die or sustain certain injuries, diseases, or illnesses.  The approving authority is the General Court-Martial Convening Authority (GCMCA) or Commander, U.S. Army Human Resources Command (USAHRC).  The unit commander initiates the informal DA Form 2173 and after appropriate input by the medical treatment facility physician forwards it through command channels to the appropriate appointing authority.    

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states, in pertinent part that MEBs 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 Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  If the MEB determines the Soldier does not meet Army retention standards, the MEB will recommend referral to a PEB. 

21.  Army Regulation 635-40, paragraph b-24f, provides for a 20 percent ceiling for conditions rated essentially for pain.  Often a Soldier will be found unfit for any variety of diagnosed conditions that 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 bases of pain.  However, lack of objective findings does not constitute a valid reason for finding a Soldier unfit by analogy to neuropsychiatric disability or assuming that the Soldier is malingering.  Rating by analogy to degenerative arthritis as an exception to analogous rating policies (paragraph b–8) may be either assigned in unusual cases with a
20 percent ceiling, 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. 

22.  Army Regulation 635-40, paragraph 3-5c, states that the fact that a Soldier has a condition listed in the Veterans Administration Schedule for Rating Disabilities (VASRD) does not equate to a finding of physical unfitness.  An unfitting, or ratable condition, is one that renders the Soldier unable to perform the duties of his or her military office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty.

23.  Army Regulation 635-40, paragraph 3-5d, states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Any non-ratable defects or conditions will be listed in item 8 of the PEB Proceedings, but will be annotated as non-ratable.

24.  Department of Defense Directive (DODD) 1332.38, paragraph E3.P1.2.3. states that MEBs shall document the full clinical information of all medical conditions the Service member has and state whether each condition is cause for referral to a PEB.  

25.  Title 10, U.S. Code, section 1201, provides for the permanent retirement of Soldiers who incur a physical disability in the line of duty while serving on active duty over 30 days.  However, the disability must have been the proximate result of performance of military training or specialty training duties.  

26.  Title 38, United States Code, sections 1110 and 1131, 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.

27.  Army Regulation 15-185 (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 that his disability rating should be increased so he can be medically retired.  

2.  A review of the available evidence shows that the applicant's only service-connected physically unfitting conditions were properly rated in accordance with the VASRD and U.S. Army regulatory guidance for rating pain.  He was found physically unfit for continued military service due to his back and knee pain evaluated as moderate to constant.  He was rated 20 percent for his pain, which was the maximum allowable rating.  The MEB found his two other physical complaints as not in line of duty or physically unfitting.  He concurred with his MEB's findings and recommendations and elected to not remain in the U.S. Army or its Reserve Components.  His physical unfitness rating and subsequent separation with severance pay complied with established laws and regulations.  It is noted that the applicant waived a formal PEB hearing, the opportunity to submit rebuttal statements or refute the PEBs findings and recommendations, and representation by counsel.

3.  The PEB's decision was not arbitrary or capricious.  The PEB utilized all the medical evidence, to include medical evaluation tests as determined by the military medical physicians, as relevant.  Considering all the facts and evidence of this case, there is no basis to increase the applicant's rating to a level which would merit medical retirement.  The VA medical evidence he submitted with his application is postdated after he was separated from the U.S. Army.

4.  The fact that the VA, in its discretion, has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish that an error was made in the rating assigned by the Department of the Army.  The VA considers medical evaluation and subsequent ratings based on the fact that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the Veteran concerned.  In addition, the VA can change its rating as the disability improves or deteriorates. 

5.  The applicant has not submitted any evidence or argument that would show an error or injustice occurred in the processing of the medical separation.






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)                                         AR20090004191



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ABCMR Record of Proceedings (cont)                                         AR20090004191



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