BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090016835 


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 40%.

2.  The applicant states he was discharged for a service-connected disability with a 10% disability rating percentage for his back.  However, the Department of Veterans Affairs (VA) awarded him a 40% disability rating percentage for the same condition and based on the same information.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a DD Form 215 (Correction to DD Form 214); a VA Rating Decision Document; Heath Care Progress Notes; and his Medical Evaluation Board (MEBD)/Physical Evaluation Board (PEB) Proceedings with Addendum, Narrative Summary Documents, and a 9-page Optional Form (OF) 275 (Medical Record Report).

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 New York Army National Guard (NYARNG) on
2 May 2000.  On 20 January 2004, he was ordered to active duty in support of Operation Iraqi Freedom.

3.  The OF 275 provided by the applicant shows that on 21 April 2005 he underwent a medical examination for an MEBD.  The applicant's chief complaint was listed as low back pain.  The physician stated the applicant continues to have unremitting back pain that prevents him from performing military duties.  He noted that the applicant had multiple other conditions, but by themselves they did not impair his performance.  The physician recommended the applicant be referred to a PEB for further disposition.

4.  In a narrative summary of the applicant's condition from the Massachusetts Medical Community Based Health Care Organization (CBHCO-MA), dated
2 August 2005, the applicant's chief complaint was listed as low back pain.  The physician stated that the applicant was injured on 21 May 2004 while in Iraq as a gunner in a Humvee [HMMWV - High Mobility Multipurpose Wheeled Vehicle]. He stated the applicant sustained a jolt (compounded by many episodes of harsh combat road conditions) which resulted in wrenched back blows to both knees.  The applicant was treated in-theater as an outpatient and while on leave in the United States he consulted with orthopedics.  The applicant had surgical repair of a right medial meniscus tear associated with three compartments of degenerative joint disease and epidural steroid injection for low back pain both in combination with extensive physical therapy and oral medications which provided varying degrees of relief.

5.  The physician stated the applicant experienced episodes of moderate low back pain that limited his daily living activities.  He said his knee pain was infrequently a cause for activity limitation.  The applicant also had disordered sleep due to, at least in part, anxiety derived from his war experience.  He offered that the applicant was unable to perform military duties due to low back pain and he was not a candidate for world-wide deployment due to symptoms consistent with post traumatic stress disorder (PTSD).  The physician concluded that the applicant's conditions were unfitting for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and recommended that he be referred to a PEB.

6.  On 28 September 2005, the applicant underwent an MEBD.  His chief complaint was recorded as lumbago (back pain) which was listed as medically unacceptable.  His complaints of right knee medial meniscus tear; ingrown toenail with infection; shrapnel injury, right fourth finger; high frequency sensory neural hearing loss; obesity; hypertension; hyperglycemia; and PTSD with mixed anxiety and depression were all determined to be medically acceptable.  The MEBD referred the applicant to a PEB.  On 30 November 2005, the applicant concurred with the board's findings and recommendation.

7.  In a Psychiatric Addendum to the MEBD, the physician stated that the applicant was evaluated on 20 October 2005.  He stated that during the applicant's deployment to Iraq, he [applicant] experienced traumatic experiences that caused residual emotional distress.  He explained that the applicant was manning a gun turret in a Humvee when his patrol came under fire.  During their flight at a high rate of speed, the vehicle hit a mortar crater and the applicant was injured by the impact in the turret.  Since then, the applicant has had continuous pain in his back and right leg.  The physician also reported the applicant's hand was injured by shrapnel.  The applicant distinctly and emotionally remembers receiving word that his close friend had been killed in a mortar attack.  The physician offered that the applicant received an MRI (magnetic resonance imaging) while on leave in the United States and he was found to have herniated discs in his back and a torn meniscus in his knee.  The applicant was judged medically unfit to return to Iraq.

8.  The physician stated that from the standpoint of the applicant's mental health diagnosis, he should be considered medically acceptable for continued military service in accordance with Army Regulation 40-501.  The applicant does not require any limitations in duty or duty in a protected environment.  His outpatient mental health treatment was not incompatible with military service.  He concluded that the applicant was competent to manage his financial affairs and to participate in MEBD/PEB proceedings.

9.  On 26 January 2006, the PEB convened and recommended a disability rating of 10% for the applicant's chronic low back pain.  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 30 January 2006, the applicant concurred with their recommendation and waived a formal hearing.

10.  Headquarters, 10th Mountain Division, Fort Drum, NY, Orders 041-1006, dated 10 February 2006, reassigned the applicant to the Fort Drum Transition Center for transition processing.  His date of discharge was listed as 3 March 2006.  The applicant's orders stated that he was authorized disability severance pay in the pay grade of E-4 based on 6 years, 3 months, and 11 days of service. The percentage of disability was listed as 10%.

11.  The applicant's DD Form 214 shows that he was honorably discharged on
3 March 2006 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability with severance pay.  His DD Form 214 shows entitlement to disability severance pay in the amount of $24,220.80.

12.  On 18 October 2006, the VA rendered a combined 60% disability rating percentage for service-connected compensation from 4 March 2006 and then 80% from 24 April 2006.  The rating decision was based upon the following:

* Diabetes mellitus type II, 20%
* Degenerative joint disease, left knee, 10%
* Lumbar herniated disk L1-L2, with intermittent right side radicular symptoms, old rating 10% and new rating 40%
* Status post-arthroscopy for medial meniscus tear, right knee, 10%

13.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official stated the applicant's MEBD was completed on 28 September 2005 with the sole diagnosis of lumbago (back pain) not meeting medical retention standards.  The physical examination revealed tenderness to palpation, no neurological defects, normal gait, and flexion of the back to 48 degrees.  On 15 November 2005, the applicant concurred with the MEBD findings and recommendation.

14.  The USAPDA stated that on 26 January 2006, an informal PEB found the applicant unfit for his back pain and rated him 10% due to tenderness to palpation.  The applicant's flexion limitation was considered to be limited by pain only and was rated 10% in accordance with the regulation in effect at the time.  On 30 January 2006, the applicant concurred with the PEB's findings and recommendation, and waved his right to a formal hearing.  The advisory official stated the PEB correctly rated the applicant with a 10% disability rating percentage in 2006.  If the applicant was rated for flexion limitation of 48 degrees the rating could have been 20%.  However, even at 20%, the applicant would still only be entitled to the same benefits and compensation he was provided at a 10% disability rating percentage.

15.  On 3 March 2010, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He failed to respond.

16.  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.  PEB's 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.

17.  The same regulation states that lesser ratings will begin with a 0% 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.

18.  Additionally, the regulation states that in some cases of limitations or of other abnormal joint motion, the basic cause is injury to muscle or tendon rather than to bone or joint.  A careful distinction must be made for appropriate rating.  Ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found.  Muscle contractures and arthritic degeneration of bone are examples of a mechanical limitation of motion.  Contrariwise, joint pain resulting in loss of motion does not constitute a mechanical basis for restricted motion. 

19.  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.

20.  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 determined as low back pain.  The applicant concurred with the MEBD's and PEB's findings and recommendation.

2.  The USAPDA stated that the applicant was correctly rated with a 10% disability rating percentage in 2006.  The USAPDA offered that the applicant's flexion limitation was considered to be limited by pain only and as such the 10% disability rating percentage was in accordance with the regulation in effect at the time.  The applicant concurred with the rating and waived a formal hearing.  There is no evidence and the applicant did not provide any to support increasing his disability rating from 10% to 40%.

3.  The applicant offers the fact that he was awarded a 40% disability rating percentage from the VA for lumbar herniated disk as proof that he should have also received a 40% disability rating percentage to qualify for a medical retirement.  However, the evidence of record shows that the applicant was originally awarded a 10% disability rating by the VA for lumbar herniated disk which was increased to 40% in October 2006.  The VA can evaluate a veteran throughout his/her 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.  

4.  No medical evidence has been presented by the applicant to demonstrate an injustice in the disability rating 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)                                         AR20090016835



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ABCMR Record of Proceedings (cont)                                         AR20090016835



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