IN THE CASE OF:	  

		BOARD DATE:	    16 March 2010

		DOCKET NUMBER:  AR20090013799 


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 an earlier request to correct his record to show he was medically retired instead of honorably separated.   

2.  The applicant states he was improperly rated for his chronic shoulder condition and that radiographs show he has degenerative joint disease.  Based on these radiographs, he states that the Physical Evaluation Board (PEB) did not use the applicable regulatory guidance when it established his disability rating percentage.  He quotes from Department of Defense Instruction (DODI) 1332.39, dated 14 November 1996, "Each major joint (or grouping of joints) with objective limitation of motion plus radiographic evidence is rated at 10 percent."  In addition, he states the Department of Veterans Affairs (VA) found objective evidence that shows he has a limitation of motion in his shoulder and rated it 20 percent disabling.  He concludes by stating the PEB examination shows he has pain limiting shoulder range of motion.  Therefore, he should have been rated 10 percent disabled for his chronic shoulder condition by the PEB based on Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Code 5002 not Code 5010. 

3.  The applicant provided the following documents to support his application:

	a.  Docket Number AR20080007936 Record of Proceedings, dated 26 August 2008;

	b.  PEB, dated 19 December 2006;

	c.  VA Rating Decision, dated 14 November 2007;
	
	d.  an excerpt from the VASRD, pages 4.71a-1 and 4-71a-2; and

	e.  an excerpt from the DODI 1332.39, dated 14 November 1996.

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 AR20080007936, dated 26 August 2008.

2.  The applicant's argument that the PEB should have found him 10 percent disabled for his chronic shoulder condition based upon guidance found in DODI 1332.32 was not previously considered by the Board and requires that his case be reconsidered.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) for a period of 3 years on 22 September 1981.  He enlisted in the Regular Army on 17 November 1981, executed a series of extensions and/or reenlistments, held military occupational specialty (MOS) 76V (Materiel Storage and Handling Specialist), attained the rank of staff sergeant (SSG), and was honorably separated on 31 August 1992.

4.  Upon separation from the Regular Army, he enlisted in the USAR for a period of 8 years on 1 September 1992 in the rank/grade of SSG/E-6.  On 17 July 2007, he executed an indefinite reenlistment in the USAR. 

5.  On 4 December 2005, the applicant's mobilization orders ordered him to active duty to support Operation Iraqi Freedom.  Subsequently, he reported to the mobilization station.  

6.  An informal line of duty determination rendered on 10 January 2006 determined the applicant's injuries sustained on 16 December 2006 were in line of duty.  The Line of Duty investigation and its relevant supporting documents are not available for review. 

7.  On 9 February 2006, the applicant was retained on active duty to participate in the Reserve Component Medical Holdover Medical Retention Program for completion of medical care and treatment.  Based on the medical findings, he did not deploy to Iraq. 

8.  The facts and circumstances surrounding the applicant's injury and subsequent Medical Evaluation Board (MEB) are not available for review.

9.  On 19 December 2006, a PEB convened at Walter Reed Army Medical Center and found the applicant was physically unfit for retention in the U.S. Army and its Reserve components.  The PEB recommended a combined disability rating of 20 percent and separation with severance pay.  The PEB findings included:

	a.  chronic cervical pain rated 10 percent disabling in accordance with VASRD Code 5237 with pain limiting the range of motion;
	
	b.  chronic lumbar pain rated 10 percent disabling in accordance with VASRD Code 5237;

	c.  chronic right shoulder pain, rated 0 percent disabling in accordance with VASRD Code 5010 with pain limiting shoulder ranges of motion and muscle testing and radiographs showing degenerative joint disease; and

	d.  chronic right wrist and knee pain, rated 0 percent disabling in accordance with VASRD Codes 5099 and 5003 with limitation of motion due to pain.  Accordingly, the pain was rated in accordance with the Physical Disability Agency pain policy for slight and intermittent pain.  The PEB stated to rate these based on medications would be pyramiding as the neck and back ratings include pain as part of their rating criteria.

10.  On 22 December 2006, the applicant concurred with the PEB findings and recommendations and waived his right to a formal hearing.

11.  On 10 January 2007, the applicant was honorably discharged from the Army.  He was discharged in accordance with paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The reason for discharge was for disability with severance pay.  He received a DD Form 214 showing he completed nearly 16 years of creditable active service and over 13 years of inactive service.

12.  On 31 May 2008, the applicant was transferred to the Retired Reserve. 

13.  Department of Defense Instruction 1332.39, dated 14 November 1996, implements policy, assigns responsibilities, and prescribes procedures, under the authority of DOD Directive 1332.18 (Separation or Retirement for Physical
Disability), dated 4 November 1996 for rating disabilities of Service members determined to be physically unfit and eligible for disability separation or retirement.  For VASRD Code 5003 (Arthritis, Degenerative, Hypertrophic, and Pain Conditions Rated by Analogy to Degenerative Arthritis) there are two criteria:

	a.  each major joint (or grouping of minor joints) with objective limitation of motion plus radiographic evidence is rated at 10 percent; and  

	b.  radiographic evidence of two or more major joints or groups of minor joints, when accompanied by occasional exacerbations of incapacitating symptoms, is given a total rating of 20 percent.  Radiographic evidence alone without symptoms is rated at 10 percent. 

14.  The VASRD defines the following codes:

	a.  Code 5002 is rheumatoid arthritis in an active process.  Rheumatoid arthritis is an autoimmune disease causing chronic inflammation of the joints.  For chronic residuals such as limitation of motion or ankylosis, favorable or unfavorable, rate under the appropriate diagnostic codes for the specific joint or joints involved.   When the limitation of motion of the specific joint or joints involved is noncompensable under the codes a rating of 10 percent is used for application for each such major joint or group of major joints affected by limitation of motion, to be combined, not added.   Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion; and  

	b.  Code 5010 is arthritis, due to trauma, substantiated by X-ray findings.  This specific code is rated as degenerative arthritis. 

15.  Army Regulation 635-40, Appendix B, defines the following:

	a.  VASRD Code 5002 is applicable for rheumatoid arthritis in an active process.  Further, rate chronic residuals under the appropriate limitation of motion codes in the 5200 series based on X-ray evidence plus clinical features.  Do not combine ratings for an active process (5200) with ratings for residuals in the 5200 series; and

	b.  VASRD Code 5003 is applicable for arthritis, degenerative, hypertrophic and pain conditions rated by analogy to degenerative arthritis.  VASRD Code 5003 states that when there are no objective medical laboratory testing procedures used to detect the existence of pain or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely because of pain.  A maximum 20 percent rating by analogy to degenerative arthritis may be awarded as an exception in unusual cases, 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 to achieve a percentage of disability that would result in an erroneous disability retirement.  

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) defines pyramiding as 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records do not contain the facts and circumstances that led to his injury.  

2.  An informal PEB found the applicant to be unfit for further military service and assigned him a combined disability rating of 20 percent for chronic cervical pain and chronic lumbar pain.  His right shoulder and right wrist were also evaluated for pain and rated 0 percent disabling.  The PEB recommended separation with severance pay and the applicant concurred.

3.  In his reconsideration argument, he contends that his chronic right shoulder pain was not rated under the correct VASRD code.  Therefore, an appropriate disability rating of 10 percent was not assigned for his shoulder in the PEB process.  He states his shoulder should have been rated under VASRD Code 5002 not 5010 and assigned a 10 percent disability rating. 

4.  Based on a review of the applicable guidance and regulations, the PEB properly assigned the VASRD Code 5010 to the applicant's chronic right shoulder pain.  The VASRD shows that Code 5010 is for degenerative arthritis, due to trauma, substantiated by X-ray findings while Code 5002 is for rheumatoid arthritis, an autoimmune disease.  The PEB did not find that the applicant has rheumatoid arthritis.  Therefore, the applicant's contention is unfounded.

5.  The applicant has not submitted additional evidence or argument that would show an error or injustice occurred in the processing of his medical separation and subsequent discharge with severance pay. 



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 AR20080007936, dated 26 August 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)                                         AR20090013799



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont