IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20090016505 


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 his assigned disability rating from the Physical Evaluation Board (PEB) be increased to 30 or more percent and he be advanced to the grade of staff sergeant/E-6 (SSG/E-6) for disability pay purposes.  

2.  The applicant states when he went through the Army’s Physical Disability Evaluation System (PDES) he was assisted by a new employee who he believes was not seasoned enough to assist him adequately.  He claims that as a result of his inexperience, he trusted the Medical Evaluation Board (MEB)/PEB advisor and accepted a lower disability rating of 20 percent.  He states he now understands he should have challenged the rating and is now doing so. 

3.  The applicant also states upon separation from the Army in 2005, he received disability severance pay based on a 20 percent disability, 12 years of service, and the grade sergeant/E-5 (SGT/E-5).  He states in 2006, the regulation changed to pay disability severance pay based on years served and he feels he should have been retired at 30 or more percent disability or should have received disability severance pay based on 14.5 years of service and the grade SSG/E-6.

4.  The applicant further states his grade on his DD Form 214 (Certificate of Release or Discharge from Active Duty) should be changed to SSG/E-6 because he believes the reason for the change in the regulation is based on service in Operations Iraqi and Enduring Freedom.  He claims he should be included in this group because he served in support of these operations.  He now sees Soldiers receiving higher ratings for lesser issues than his.
  
5.  The applicant provides no documentary evidence in support of his application.
 
CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant enlisted in the Regular Army on   8 April 1999.

2.  On 12 July 2005, the applicant was examined at Madigan Army Medical Center (MAMC), Tacoma, Washington, and an MEB Narrative Summary (NARSUM) was prepared for the MEB based on this examination.  The results of the physical examination showed the following range of motion (ROM) measurements of the cervical and thoracolumbar spine:

* Thoracolumbar Flexion -     35 35 35 pain limit
* Extension -                          19 19 19 pain limit
* Left Sidebend -                    14 14 14 pain limit
* Right Sidebend -                  21 21 21 pain limit 
* Bilateral rotation -                 Full AROM

* Cervical Flexion -                 Full ROM – 
* Extension -                           30 30 30 pain limit
* Left Sidebend -                     20 20 20 pain limit

3. On 15 August 2005, an MEB at MAMC considered the applicant’s case.  The MEB identified seven medical conditions the applicant incurred while entitled to base pay, of which the following two did not meet retention standards: 

* Chronic low back pain starting approximately September 2000
* Neck and upper back pain with disk herniation with indentation on the spinal cord at the C5 level

4.  The MEB referred the applicant’s case to a PEB.  The MEB findings and recommendations were approved on 16 August 2005, and the applicant concurred with them on 24 August 2005.  

5.  On 30 August 2005, a PEB convened at Fort Lewis, Washington to consider the applicant’s case.  The PEB determined the applicant was physically unfit for further service based on the following diagnosed conditions under Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5237 which were each rated at 10 percent and assigned a combined physical disability rating of  20 percent:

* Back pain from lumbosacral area to the base of the neck (thoracolumbar spine) with multilevel degenerative disk disease, ROM restricted by pain alone
* Chronic neck pain secondary to degenerative disc disease, no significant loss of motion, muscle spasm, radiculopathy or tenderness on exam

6.  The PEB recommended the applicant be separated with severance pay and the applicant concurred with the PEB findings and recommendations and waived his right to a formal hearing on 7 September 2005.

7.  In connection with the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  This official recommends no change to the applicant’s military record; however, if the Board is inclined to disregard the physical findings of the PEB and regulatory provisions in effect at the time, the applicant could be rated at 20 percent for his reduced flexion which would result in a total 30 percent disability rating and permanent disability retirement.  

8.  The USAPDA states the 10 percent rating for the applicant’s back pain was based on the physical findings which did not support any significant physical limitations on his ability to flex his back.  He further states that based on applicable regulations in effect at the time of the applicant’s separation the PEB findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation in effect at the time of the applicant’s separation.  

9.  The USAPDA advisory opinion further confirms that under the law in effect at the time of the applicant’s separation with severance pay, compensation was limited to a maximum of 12 years of service.  The amendment to this standard implemented in 2008 was not retroactive and does not apply in the applicant’s case.  Further, there is no evidence suggesting the applicant was entitled to disability pay at a higher grade.  

10.  On 20 May 2010, the applicant provided a rebuttal to the USAPDA advisory opinion.  He states the PEB assigned a rating of 10 percent when the evidence clearly showed he had a ROM of 35 degrees.  Under the governing law, this ROM limitation requires a 20 percent disability rating.  He also states since leaving the Army, he has continued to have problems related to his back.  He how has severe neuropathy in his lower extremities and has to wear braces for his knees.  Both these issues have been recognized by the VA as related to his back condition.  

11.  In his rebuttal, the applicant goes on to state his total combined rating from the PEB was 20 percent but the VA rated him as 90 percent disabled upon his discharge, and he has recently been upgraded to 100 percent.  He concludes by indicating the recent amendment regarding service time for compensation should be retroactive to all Soldiers who served in a combat theater since 9/11.  He claims the current law seems to cater to a select group.  

12.  On 14 October 2008, the Under Secretary of Defense published a memorandum, Subject: Policy Memorandum on Implementing Disability Related Provisions of the National Defense Authorization Act (NDAA) of 2008.  This memorandum provided supplemental and clarifying guidance on implementing those disability related provisions of the 2008 NDAA.  Enclosure 7 provided the policy for application of the VASRD.  It stated the Military Departments may not deviate from the schedule. 

13.  Paragraph 4.3 of the VASRD provides guidance on the resolution of reasonable doubt in assigning a disability rating and states it is the defined and consistently applied policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 

14.  Paragraph 4.71 of the VASRD provides general rating formulas for diseases and injuries of the spine for diagnostic codes 5235-5243.  It states, in pertinent part, that if the combined motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees a 20 percent disability rating will be assigned. 

15.  Title 10 of the U.S. Code, Section 1212 provides the legal authority for payment of disability severance pay.  The maximum years of service upon which disability severance pay would be based was 12 years until the law was amended in Public Law 110-181 on 28 January 2008.  The amendment stipulated that the provisions of the amendment would apply to members of the Armed Forces separated on or after the effective date of 28 January 2008.  The law provided no retroactive provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been assigned a higher disability rating has been carefully considered and found to have merit.  Although the applicant was properly processed through the Army’s PDES and assigned a disability rating in accordance with the applicable law and regulation in effect at the time, it would be appropriate to grant relief as a matter of equity based on the existing DOD policy guidance requiring the use of the VASRD in assigning disability ratings.  

2.  The VASRD stipulates that resolution of reasonable doubt in assigning a disability rating will be resolved in favor of the claimant.  It further states a disability rating of 20 percent would be assigned to members under code 5237 when the combined motion of the thoracolumbar spine is not greater than 
120 degrees. 

3.  In this case, the evidence of record includes a NARSUM prepared based on a physical examination for the MEB that shows the applicant’s thoracolumbar flexion was 35 degrees.  As a result, it appears the application of the VASRD would have resulted in the PEB assigning a disability rating of 20 percent for the applicant’s reduced flexion and a combined disability rating of 30 percent under the current guidance, as suggested in the USAPDA advisory opinion.  Therefore, it would be appropriate to correct the record to show the PEB assigned a combined disability rating of 30 percent and recommended the applicant’s retirement, by reason of permanent disability. 

4.  Further, based on the change to the PEB combined disability rating and recommendation for permanent disability retirement, the record should be corrected by voiding the applicant’s 2 November 2005 discharge with severance pay and instead showing he was retired by reason of permanent disability on that same date and placed on the Retired List in the grade of SGT/E-5 the following day.  He also should be provided all back retired pay and allowances due as a result, minus the disability severance pay he received.  

5.  There is no evidence of record to show the applicant was promoted to  SSG/E-6 or on a recommended list for promotion to SSG/E-6 prior to his separation.  Therefore, there is insufficient evidence that would warrant retiring him as an E-6.

6.  The applicant’s contention that he should have received disability severance pay at a higher rate based on the 2008 change to the law has also been carefully considered.  However, the 2008 change to the law stipulated it would apply only to members separated on or after the effective date of 28 January 2008.  As a result, there is an insufficient evidentiary basis to grant this portion of the requested relief. 

7.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected as follows:

     a.  amend the PEB proceedings to show the applicant was assigned a 
20 disability rating for his reduced flexion, a combined disability rating of 
30 percent, and that the PEB recommended his retirement, by reason of permanent disability;

     b.   void his 2 November 2005 disability discharge with severance pay and instead show he was retired by reason of permanent disability on that same date, and placed on the Retired List in the grade of SGT/E-5 the following day with all due transportation and travel entitlements which this correction would entitle him to; and 

     c.   provide him all back retired pay and allowances due as a result of the above changes minus the disability severance pay he received;

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 


denial of so much of the application that pertains to adjustment of his grade at separation to SSG/E-6 and/or to increased disability severance pay based on this grade adjustment. 




      _______ _  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)                                         AR20090016505



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ABCMR Record of Proceedings (cont)                                         AR20090016505



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