IN THE CASE OF:
BOARD DATE: 18 May 2010
DOCKET NUMBER: AR20090018744
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 separation with disability severance pay be corrected to disability retirement.
2. The applicant states his shoulder and right arm conditions should have been rated separately and that he should have been rated for gastroesophageal reflux disease (GERD) and post-traumatic stress disorder (PTSD).
3. The applicant provides copies from his service, Department of Veterans Affairs (VA), and civilian medical records; Social Security Administration disability case; and a memorandum of support from the Wounded Warrior Advocate, Special Operations Headquarters Care Coalition.
CONSIDERATION OF EVIDENCE:
1. The applicant, a Regular Army sergeant with approximately 5 years of active duty service, was separated with disability severance pay on 9 February 2006.
2. A 9 September 2005 medical evaluation board referred the applicant to a physical evaluation board (PEB) with line-of-duty diagnoses of:
* right rotator cuff tear
* right shoulder acromioclavicular (AC) joint pain
* left shoulder impingement
* left shoulder AC joint pain
* chronic right elbow pain
* degenerative disc disease of the thorax
* right arm radiculopathy
3. On 12 May 2009, an informal PEB rated the applicant's various conditions as bilateral shoulder and elbow pain rated at 10-percent disabling and chronic back pain due to thoracic degenerative disc disease without neurological abnormality rated at 10-percent disabling.
4. The applicant concurred and waived a formal hearing. On 9 February 2006, the applicant was discharged with $25,266.00 in disability severance pay.
5. In an 18 January 2007 rating decision, the VA afforded the applicant ratings of 50 percent for PTSD, 30 percent for GERD, 20 percent for strain of the thoracolumbar spine, 20 percent for strain of the cervical spine, and 10 percent each for the conditions of the right elbow, right shoulder, and left shoulder. A 21 April 2008 review basically kept the same ratings except for changing the shoulder ratings to 20 percent each.
6. An August 2007 Social Security Administration decision found the applicant fully disabled due to PTSD, degenerative disc disease, and residuals of a shoulder injury.
7. An advisory opinion from the U.S. Army Physical Disability Agency (USAPDA) noted:
a. the applicant's painful joints had been rated together in accordance with the practice in effect at the time;
b. current practice would rate these conditions separately;
c. the USAPDA suggested that doing so now would be equitable and that a rating of 10 percent for each of the four separate conditions would result in an overall 30 percent rating.
8. The advisory opinion also pointed out that there was no available evidence of any mental/emotional problem and noted that although the applicant's GERD symptoms were in the record, they did not rise to the disabling level.
9. The advisory opinion was provided to the applicant and he concurred.
DISCUSSION AND CONCLUSIONS:
1. The applicant states his shoulder and right arm conditions should have been rated separately and that he should have been rated for GERD and PTSD.
2. The evidence fails to demonstrate that any mental/emotional problem [PTSD] or GERD existed at the disabling level.
3. Current policy provides for rating the applicant's shoulder, neck, and arm problems separately and it is in the interest of justice to correct the record to provide that rating. His four conditions rated at 10 percent each provide a combined rating of 30 percent, which qualifies for disability retirement.
4. In view of the foregoing findings and conclusions, it would be appropriate to rectify this injustice by correcting the applicants records as recommended below. A collection of the applicant's disability severance pay or an offset to his retroactive retired pay in an amount equal to his disability severance pay may occur as a result of this correction.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
___X____ ___X___ ____X___ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined 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 by:
a. showing his right shoulder, left shoulder, cervical spine, and right elbow problems were separately rated at 10 percent each for a combined 30-percent rating;
b. voiding his 9 February 2006 discharge; and
c. retiring him due to physical disability effective 9 February 2006 and placing him on the Retired List the following day.
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 rating PTSD or GERD as disabling conditions.
___________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) AR20090018744
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20090018744
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