IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090014695 


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, a higher disability rating.

2.  The applicant states that he was incorrectly assigned a disability rating of 40 percent for incomplete paralysis sciatic nerve which is not in accordance with the Code of Federal Regulations (CFR) and Veterans Affairs Schedule for Rating Disabilities (VASRD).  He explains that on 16 August 2007 he appeared before and was boarded by a Physical Evaluation Board (PEB).  The PEB allowed for upper arm extremity involvement and acknowledged it to be his dominant right hand.  However, there was not a dominant hand factor percentage applied.  He adds that the PEB did not allow Lyme disease as a possible causing factor even when presented the proof of Babesiosis as a co-infection in 2002.  He states he received medical treatment in 1993 for Lyme disease due to an infected tick bite.

3.  The applicant asserts that a disability rating was to be assigned based on his ability to perform tasks as applicable to his ability to function in the work place.  He maintains that he should have been awarded a higher rating for the functional use of his right leg and his dominant right hand.  He adds that this would have entitled him to a maximum disability rating of 75 percent.  

4.  The applicant provides the following:  PEB Proceedings dated 12 September 2007; Temporary Disability Retired List (TDRL) orders; excerpts from the CFR; Physical Therapy Progress Note; Formal Hearing Notification Memorandum; PEB Proceedings dated 21 June 2007; Removal from the TDRL Memorandum, Medical Records; TDRL Physical Examination orders; VA Decision Document; Letter of Support, dated 7 September 2007; and Formal Hearing Notification Memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that on 6 May 2002 he was placed on the TDRL.

2.  The applicant's medical records show that on 3 May 2007, he was seen at Wright-Patterson Air Force Base, Ohio.  His chief complaints were listed as multiple sclerosis (MS), central nervous system (CNS) Lyme disease, and babesiosis.  The neurologist provided a history of the applicant's illness in which he stated that the applicant was diagnosed with both CNS Lyme disease and MS.  He also had titers for babesiosis.  He offered that the applicant's medical problems began in 1996 when he had a case of optic neuritis.  He was treated with antibiotics for CNS disease and babesiosis.  He said the applicant's systems did clear up, but later on he got progressive weakness in the right lower extremity.  The applicant was diagnosed with polyradiculoplexoneuropathy and saw other specialists.  

3.  The neurologist further stated that in 2001 the applicant started on betaseron for MS.  He offered that several lumbar punctures have shown Lyme titers as well as oligoclonal banding.  The neurologist stated that the applicant has completed follow-up care with him since his release from active duty and subsequent placement on the TDRL.  Since the applicant's last visit in 2006, the neurologist said he (applicant) has not taken any antibiotics and has continued on copaxone.  The applicant reported no significant improvement of his weakness which involved his right arm and right leg.  The neurologist stated that the applicant had significant limitations of gait requiring a cane and scooter.  He offered that the applicant had dyspraxia of the right upper extremities, limited weight bearing, and his activities of daily living were limited.  He concluded that the applicant did not have any significant recovery after five years on the TDRL and he was not a good candidate to return to active duty.

4.  The applicant's PEB was reconsidered on 21 June 2007.  His disability description was listed as "Right hemiparesis as a residual of MS with a history of CNS babesiosis and borreliosis.  Placed on TDRL 6 May 2002.  Now at tenure on TDRL and relatively stable.  VASRD codes are changed to reflect current conditions, which remain unfitting and are residuals of MS."  He was rated 20 percent for the following disabilities:

	a.  VA Code 8018, 8535:  Right upper extremity (dominant) shows 4/5 strength.  Rates as mild paralysis.  
	b.  VA Code 8018, 8520:  Right lower extremity weakness from 4/5 upper groups to 2/5 ankle strength requiring a brace and cane for ambulation.  Rated as moderate partial paralysis.  

5.  The PEB proceedings stated the TDRL re-evaluation diagnosis #5 was not rateable now since it was not listed on the original Medical Evaluation Board (MEB) as not meeting retention standards and appears to be a new condition which was unrelated to any previous unfitting condition.

6.  Memorandum, Subject:  Removal from the TDRL, dated 21 June 2007, stated that based on the results of the informal hearing, the PEB recommended that the applicant be removed from the TDRL.  This memorandum advised the applicant of his right to submit a rebuttal. 

7.  On 5 July 2007, the applicant submitted his rebuttal.  In his rebuttal he said that he believed he did not receive a full hearing as to his current medical condition and his ability to perform work.  He added that he was assigned a disability rating without all the facts as to his existing mobility and function ability issues. 

8.  On 6 July 2007, the applicant nonconcurred with the findings of the PEB and requested a formal hearing.

9.  On 16 August 2007, a formal PEB was convened and the applicant and his representative appeared before the board.  The PEB shows the applicant's rating in VA Code 8018 and 8520 as incomplete paralysis, sciatic nerve with his right lower extremity weakness from 3/5 to 0/5 strength requiring KAFO locking brace and cane ambulation.  Moderate atrophy of upper and lower leg muscles of one inch circumference.  Gait impairment prevents return to duty.  He was rated 40 percent as moderately severe.  The applicant nonconcurred with the formal PEB and on 30 August 2007, he submitted his rebuttal.  In his rebuttal, he provided the below listed letter and requested that his disability rating be increased and the diagnosis of Lyme disease be included on his PEB.

10.  Medical records and a letter from a medical doctor at the Belmont Community Hospital, dated 20 August 2007, said that he has seen the applicant for medical problems since 1999.  He offered that over the years there has been a gradual and progressive increase in weakness of the applicant's right leg and some slight weakness of his right arm.  He added it was the consensus of most, if not all of the physicians, who have seen the applicant, that he was completely disabled from any gainful employment because of neurological deficits.  The doctor said from the functional stand point, the applicant had a 100 percent loss of use of the right leg with an inability to stand without braces and the risk of falling if he did not use braces and was not careful.  He recommended that the applicant he considered 100 percent disabled from gainful employment because of his progressive disease and disability.  

11.  On 7 September 2007, the applicant's counsel said that the applicant strongly objected to the PEB rating characterizing the loss of muscle mass as not being "marked" which would have provided a 60 percent rating.  He said that neither the VASRD, Department of Defense Instructions (DODI), Army Regulation 635-40, nor published Physical Disability Agency policies define the term "marked muscular atrophy."  He said that the proper interpretation in the VASRD for a 60 percent rating can also be inferred by what was required for an 80 percent rating.  The 80 percent rating required the complete loss of use of the muscles below the knee and weakened strength in the knee.  He offered that the applicant came very close to meeting this standard.  

12.  On 18 September 2007, the U.S. Army Physical Disability Agency (USAPDA) noted the applicant's disagreement with the findings of the PEB and reviewed his entire case.  The USAPDA stated that his case was properly adjudicated by the PEB which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination.  The USAPDA said the finding and recommendations of the PEB were supported by substantial evidence and were therefore affirmed.  

13.  On 19 September 2007, the formal PEB was approved.

14.  Orders D272-08, dated 28 September 2007, show that the applicant was removed from the TDRL effective 5 May 2007 and permanently retired on the date following with a 50 percent disability rating.

15.  On 9 July 2007, the VA rendered the following decision concerning the applicant's disability claim: 

* MS/Lyme disease, with right foot drop, increased from 40 percent to 60 percent
* MS/Lyme disease, with right upper extremity deficits increased from 30 percent to 50 percent
* Hearing loss, continued at 0 percent
* Tinnitus, continued at 10 percent
* Entitlement to individual unemployment, granted
* Basic eligibility to Dependents' Educational Assistance

16.  In the processing of this case, the Board obtained an advisory opinion from the USAPDA, Walter Reed Army Medical Center.  The USAPDA recommended denial of the applicant's request to have his disability rating increased.  The USAPDA stated that on 3 December 2001, an informal PEB awarded the applicant a 30 percent disability rating for MS.  The agency said that the applicant had a history of Lyme disease, but it was not a separate listed diagnosis, nor was it the reason that the applicant was unfit for duty in 2001.  The applicant's condition of MS was not stable for rating purposes so he was placed on the TDRL at 50 percent in accordance with Title 10, U.S. Code, section 1202.

17.  On 3 May 2007, the applicant's TDRL medical re-evaluation was completed and revealed a 4+ strength in his right triceps, wrist extensors, and finger extensors.  He had a 4+ strength in the right iliopsoas, hip flexors, and right hamstrings.  He had 2 strength in the right ankle dorsi flexors.  There was no tremor in his right hand.  All muscle groups and his left extremities were normal.  Additionally, the sensory examination revealed he was grossly intact to light touch diffusely.  The USAPDA said that on 24 May 2007 the applicant concurred with the TDRL re-evaluation findings.  

18.  On 21 June 2007, an informal PEB found the applicant unfit for MS and rated him for neurological residuals caused by his MS.  The residuals related to the weakness in his right extremities.  His right arm weakness of the hand was noted to be mild and rated in accordance with the VASRD 8513 at 20 percent.  The right leg and ankle weakness was rated in accordance with the VASRD 8520 at 20 percent for moderate disability which resulted in an overall rating 40 percent and permanent disability retirement.  The USAPDA said that the applicant nonconcurred and requested a formal hearing.  The PEB responded explaining that MS was rated on its residuals if the residuals were ratable higher than the minimum 30 percent rating for MS (8018).  The USAPDA  stated that it was irrelevant whether the residuals were the result of MS or Lyme disease.

19.  On 16 August 2007, the formal PEB increased the applicant's rating for his right leg to moderately severe at 40 percent with a total rating of 50 percent.  The applicant nonconcurred with the findings and in his rebuttal requested a rating of 60 percent rating of his right leg.  The USAPDA responded to the applicant's rebuttal and stated that the medical evidence did not rise to the level of complete paralysis as some of the below-the-knee muscle groups were still able to function and not all had signs of atrophy.  The PEB found that the one inch difference in circumference of the lower extremities was considered to be mild to moderate atrophy and was not considered to be "marked" or significant.  Since the VASRD used adjectival descriptions relating to the rating percentages, not clear objective criteria, the PEB was within their discretion to interpret the medical findings as best they could in accordance with the subjective terms provided.


20.  The USAPDA said that the applicant's case was rated strictly in accordance with the VASRD criteria as required.  The fact that the applicant did not agree with the PEB's determination of how his medical findings were applied to the VASRD's undefined subjective criteria of "mild, moderate, moderately severe, or severe with marked atrophy" was not an indication that the PEB did not follow the VASRD.  The PEB was within its legal discretion to interpret the medical finding to the subjective terms provided.  The USAPDA concluded that the PEB findings were based on a preponderance of the evidence, were not capricious, and were not in violation of any statute, directive, or regulation.

21.  On 3 March 2010, the advisory opinion was forwarded to the applicant for his acknowledgement and/or comments.  However, he failed to respond.

22.  Army Regulation 635-40 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.  Physical evaluation boards 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.

23.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

24.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for 
determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  

25.  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.  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.

26.  This regulation shows the minimum rating for the following VA Codes:

* 8018, MS, 30 percent. 
*  8530, Paralysis of:  Complete; the foot dangles and drops, no active movement possible of muscles below knee, flexion of knee weakened or (very rarely) 
o lost, 80 percent 
o Incomplete:  Severe, with marked muscular atrophy, 60 percent
o Incomplete:  Moderately severe, 40 percent
o Incomplete:  Moderate, 20 percent
o Incomplete:  Mild, 10 percent

* 8513,Paralysis of:
o complete, 90 to 80 percent 
o Incomplete:  Severe,70 to 60 percent
o Incomplete:  Moderately 40 to 30 percent
o Incomplete:  Mild, 20 percent

27.  The CFR, 4.63, Loss of use of hand or foot, states that the loss of use of a hand or a foot, for the purpose of special monthly compensation, will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance.  The determination will be made on the basis of the actual remaining function of the hand or foot, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.

	a.  Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of 2 major joints of an extremity, or shortening of the lower extremity of 3-1/2 inches (8.9 cms.) or more, will be taken as loss of use of the hand or foot involved.

	b.  Complete paralysis of the external popliteal nerve (common peroneal) and consequent, footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that he should have received a higher disability rating.  However, evidence of record shows that the applicant underwent a TDRL MEB and a PEB.  On 21 June 2007, a reconsideration of his PEB was conducted in which the board recommended a disability rating of 20 percent each for residuals of MS for mild paralysis for the right upper extremity and moderate partial paralysis for the right lower extremity that required him to use a brace and/or cane for ambulation.  

2.  On 6 July 2007, the applicant nonconcurred with the findings and recommendation of the PEB and requested representation by counsel and personal appearance at a formal board.  On 16 August 2007, the applicant and his counsel appeared before the formal PEB and the applicant's disability rating for incomplete paralysis was increased from 20 to 40 percent.  The applicant nonconcurred with the findings of the PEB and requested a higher disability rating and that Lyme disease be included in his PEB proceedings.

3.  On 18 September 2007, the USAPDA reviewed the applicant's entire case.  The agency stated that the case was properly adjudicated by the PEB and the rules governing the PDES determination were correctly applied.  The USAPDA further stated that the findings and recommendations of the PEB were supported by substantial evidence and were therefore affirmed.  

4.  In the advisory opinion, the USAPDA said that the applicant had a history of Lyme disease, but it was not a separate listed diagnosis or the reason he was determined unfit for duty in 2001.  Additionally, on 3 May 2007, the applicant's TDRL medical re-evaluation was completed and revealed a 4+ strength in his right triceps, wrist extensors, finger extensors right iliopsoas, hip flexors, and right hamstrings.  He received a 2 strength in the right ankle dorsi flexors.  There was no tremor in his right hand.  All muscle groups and his left extremities were normal.  On 24 May 2007, the applicant concurred with the TDRL re-evaluation findings. 

5.  The USPDA also stated that the medical evidence did not rise to the level of complete paralysis since some of the below the knee muscle groups were still able to function and not all had signs of atrophy.  The PEB found that the one inch difference in circumference of the applicant's lower extremities was considered to be mild to moderate atrophy and was not considered to be "marked" or significant.  The USAPDA said that the applicant's case was rated strictly in accordance with the VASRD criteria as required.    

6.  The evidence of record shows that the applicant was diagnosed with "moderately severe" atrophy of upper and lower leg muscles with a 40 percent disability rating and an overall disability rating of 50 percent.  Therefore his belief that he is entitled to a 60 percent disability rating based on the information contained in the VASRD and the CFR is not supported by facts.  The VASRD and CFR assigned a rating of 60 percent for those Soldiers with "severe" paralysis and total loss of hand and/or foot.  The 40 percent disability rating he received is consistent with the medical evidence, the formal PEB findings, and the VASRD.  Therefore, based on the applicant's diagnosis, he is not entitled to a higher disability rating.

7.  Additionally, the applicant offers the fact that he was awarded a 60 percent disability percentage rating from the VA as proof that he should have received the same rating for his medical retirement.  The VA is not required by law to determine medical unfitness for further military service.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

8.  Additionally, an award of a VA rating does not establish entitlement to a higher percentage for a medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  On the contrary, the Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

9.  No medical evidence has been presented by the applicant to demonstrate an injustice in the disability ratings received in service.  

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)                                         AR20090014695





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ABCMR Record of Proceedings (cont)                                         AR20090014695



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