BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090016834 


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 that his disability rating of 10 percent be changed to 30 percent.

2.  The applicant states that a rating of 10 percent was given by the Physical Evaluation Board (PEB) without full knowledge of the degree of his disability.  He states he was discharged for chronic mechanical lower back pain with associated cervical and thoracic myalgias and given a 10 percent rating upon his discharge. However, the Department of Veterans Affairs (VA) subsequently awarded him a 40 percent disability rating for lumbar spine condition and 20 percent for cervical spine condition.  He states it should also be noted that the Social Security Administration determined he was unemployable for any job in the civilian workforce.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), PEB and Medical Evaluation Board (MEB) Proceedings, VA Documentation, Social Security Administration Letter, Army Physical Fitness Test (APFT) Scorecard, and his Personnel Qualification Record.

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 Regular Army on 9 May 1990.  He was promoted to Staff Sergeant, E-6, in military occupational specialty 19D (Cavalry Scout) on  1 July 1995.

3.  On 20 June 2000, the applicant underwent an MEB.  His chief complaint was recorded as chronic mechanical lower back pain with associated thoracic and cervical myalgias.  The MEB referred the applicant to a PEB and on 23 June 2000, the applicant concurred with the board's findings and recommendation.  The physician conducting the physical examination stated the following:

Physical exam reveals a well-nourished male in no apparent distress.  Examination of the cervical spine revealed no significant tenderness to palpation in this region with full range of motion (ROM) although there was some tightness at extremes of forward flexion, right and left turn, and extension.  Examination of the upper extremities reveals there to be 5/5 strength in the C5 through T1 muscle distribution with symmetric reflexes and intact sensation.  Examination of the thoracic and lumbar spine reveals no significant tenderness to palpation.  There is mild spasm more towards the lower thoracic and lumbar paraspinal region.  He has some pain with forward flexion past 80 degrees in his lower back and had some tenderness with rotation past 30-35 degrees in both directions.  Waddell's signs were 0/5.  Neuromuscular examination reveals 5/5 strength in all muscle groups of L2 through S1 with no clonus and a negative straight leg raise.  His reflexes were 1+ and symmetrical and his sensation was intact distally.  Other extremity exam was unremarkable.

4.  On 28 June 2000, the PEB convened and recommended a disability rating of 10 percent for the applicant's chronic mechanical lower back pain with associated cervical and thoracic myalgias, rated as slightly/constant.  The PEB stated that based on a review of the objective medical evidence of record, the PEB found the applicant's medical and physical impairment prevented reasonable performance of duties required by his grade and military specialty.  On 7 July 2000, the applicant concurred with their recommendation and waived a formal hearing.  He also signed the Physical Evaluation Board Liaison Officer (PEBLO) Counseling Checklist/Statement showing that he was counseled on his rights under the law to a full and fair hearing before separation or retirement for physical disability.

5.  Orders 224-0179, dated 11 August 2000, show that the applicant was reassigned to the U.S. Army Transition Center Fort Knox, Kentucky.  His reporting date and date of discharge was listed as 28 August 2000.  The applicant's orders stated that he was authorized disability severance pay in the pay grade of staff sergeant based on 13 years and 23 days of service.  The percentage of disability was listed as 10 percent.
 
6.  The applicant's DD Form 214 shows that he was separated for disability and received disability severance pay in the amount of $52,596.00. 

7.  On 20 September 2000, VA rendered a combined 100 percent disability rating for service connected compensation.  The rating decision was based upon 10 areas with a 20 percent rating granted for mechanical lower back pain with evidence of disc bulging at L3-4, L4-5, and L5-S1 and 10 percent for cervical spine condition. 

8.  On 13 February 2003, VA increased their disability rating for degenerative disc disease of the lumbar spine with evidence of disc bulging and chronic pain syndrome from 20 to 40 percent.  Additionally, on 13 September 2003, the applicant was granted an increase in his VA disability rating for cervical spine from 10 to 20 percent.

9.  Social Security Administration letter, dated 28 November 2006, shows that the applicant was entitled to hospital and medical insurance under Medicare beginning in June 2002.

10.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The agency said the applicant's MEB was completed on 20 June 2000 with the sole diagnosis of chronic mechanical lower back pain with associated thoracic and cervical myalgias.  The physical exam revealed no tenderness to palpation of his cervical spine with full ROM.  The applicant's magnetic resonance imaging (MRI) reflected some evidence of arthritis of the spine, but no herniated intervertebral discs.  The agency said that the applicant concurred with the MEB's physical finding and provided additional comments relating to how the condition affected him and the various treatments that did not provide any significant relief.

11.  The agency stated that on 28 June 2000, the PEB found the applicant unfit for his chronic lower back pain at 10 percent and did not find any other medical conditions independently unfitting.  On 7 July 2000, after being fully advised of all his rights to appeal, the applicant concurred with the PEB's findings and waived his right to a formal hearing.  The agency concluded that the applicant was properly rated at 10 percent for his lower back pain in 2000.

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

13.  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.  PEBs 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.

14.  The same regulation states that lesser ratings will begin with a 0 percent rating for chronic low back pain of unknown etiology (mechanical low back pain). Demonstrable pain on spinal motion or discovery of back pain etiology will warrant a 10% rating unless paravertebral muscle spasms are also present, in which case a 20% rating will be awarded.

15.  Army Regulation 635-40 also states 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.

16.  Title 38, U.S. 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant’s medical condition which resulted in his inability to continue his military service was mechanical lower back pain with associated thoracic and cervical myalgias.  The applicant concurred with the MEB's findings and provided additional comments relating to the affect the condition had on his health and his involvement with various treatment plans. There is no evidence and the applicant did not provide any to show that the PEB was not fully aware of his medical condition at the time the rating was rendered. 

2.  The physician conducting the physical said that the applicant's physical exam revealed no tenderness to palpation of his cervical spine with full ROM.  Additionally, the applicant's MRI reflected some evidence of arthritis of the spine, but no herniated intervertebral discs.  Therefore, in accordance with the regulation, the PEB rendered a 10 percent disability rating.  The applicant concurred with the rating and waived a formal hearing.

3.  The applicant offers the fact that he was awarded a 40 percent disability rating from VA for lumbar spine condition and 20 percent for cervical spine condition as proof that he should have at least received a 30 percent disability rating to qualify for a 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.

4.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment 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)                                         AR20090016834





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ABCMR Record of Proceedings (cont)                                         AR20090016834



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