IN THE CASE OF:	   

		BOARD DATE:	  21 December 2011

		DOCKET NUMBER:  AR20100008427 


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 correction of his records by:

* Including sleep apnea, a right shoulder injury, and migraine headaches in his evaluation for unfitness
* Increasing his assigned disability rating from the Physical Evaluation Board (PEB) from 20 percent (%) to 30% or more
* Showing he was medically retired instead of honorably discharged with entitlement to severance pay

2.  He states, in effect, the disability percentage he was found to have was incorrect based upon the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD).  He contends the PEB should have included sleep apnea, a right shoulder injury incurred during a field exercise in 1997 and reinjured in 2004 while serving in Iraq, and migraine headaches resulting from LASIK surgery in his evaluation for unfitness and the determination of his disability percentage.  He adds that he lives with pain constantly, even though he takes a great deal of medication.  He concludes the PEB should upgrade his current disability rating from 20% to at least 30% in order to make him eligible for medical retirement.  After exploring other options, he decided to use this avenue instead of the Physical Disability Board of Review.

3.  He provides copies of his DD Form 199 (PEB Proceedings) and sleep study documentation.


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.  He enlisted in the Regular Army on 10 November 1992 and continuously served through a series of reenlistments and a variety of assignments.  He held military occupational specialty (MOS) 11B (Infantryman) and the rank/pay grade of staff sergeant (SSG)/E-6 at the time of his discharge.

3.  His record contains numerous Radiologic Examination Reports rendered during the period 21 September 1999 through 19 December 2005 which show he underwent examinations and treatment as the result of:

* Slamming his shoulder inside of a tracked vehicle
* Reinjuring his shoulder when he fell during physical fitness training
* Chronic left knee pain behind the patella
* Injuring his lower back and both knees while manually lifting a heavy piece of equipment

4.  His record contains a DA Form 3349 (Physical Profile) issued at Darnall Army Community Hospital, Fort Hood, TX on 6 April 2006.  This form shows:

* he was issued a permanent level-3 (P3) profile in the lower extremity category due to diagnosis of lumbar disc disease and chronic left knee pain
* he was restricted from wearing a Kevlar helmet, load bearing equipment, and individual body armor
* the severity of the P3 profile required a Medical Evaluation Board (MEB)
* the profiling physician initiated an MEB

5.  His record also contains a DA Form 3349 issued at Brooke Army Medical Center (BAMC), Fort Sam Houston, TX on 28 August 2006.  This form shows:

* he was issued a P3 profile in the pulmonary category due to diagnosis of obstructive sleep apnea on continuous positive airway pressure (CPAP) therapy
* the severity of the P3 profile required an MEB
* he required electricity while sleeping
* he was restricted from:

* firing a weapon or driving a vehicle when sleepy
* wearing a gas mask while sleeping
* exposure to dusty, sandy environments
* performing critical tasks requiring alertness
* wearing a Kevlar helmet, load bearing equipment, and individual body armor

6.  As part of the MEB process, he underwent a medical examination and a sleep study.  An MEB Narrative Summary (NARSUM) was prepared for the MEB based on this examination and study.  The results of the physical examination showed the following range of motion (ROM) measurements of the thoracolumbar spine:

* Flexion - 					35 37 40 = 37
* Extension - 				15 15 15 = 15
* Left Lateral Flexion 		30 30 30 = 30
* Right Lateral Flexion	25 25 25 = 25
* Left Rotation				25 27 28 = 27
* Right Rotation			20 15 15 = 17

7.  The physical exam conducted during his MEB processing documented a history of a 1997/98 injury to the right shoulder with a 2000 MRI examination reporting no significant injury/deficits.  Additionally, his July 2005 Noncommissioned Officer Evaluation Report (NCOER) reflected that he passed his Army Physical Fitness Test (APFT) and that there were no physical limits regarding his ability to perform his assigned duties.  There were no indications that the condition had hindered his performance of duty during the 8 years the injury was reported.  The medical exam indicated that the physician found that the applicant did not have any significant limitations regarding his upper extremities and that he had no neurologic impairments.  Accordingly, the MEB determined that his shoulder injury and migraine headaches did not warrant a PEB.

8. On 12 September 2006, an MEB at BAMC considered the applicant’s case.  The MEB identified three medical conditions the applicant incurred while entitled to base pay, all of which were medically unacceptable for retention standards and originated approximately in the years indicated: 

* Lumbar spondylosis, 2004
* Bilateral degenerative joint disease, knees, 1997
* Obstructive sleep apnea, 2006

9.  The MEB referred his case to a PEB.  The MEB findings and recommendations were approved on 22 September 2006, and he concurred with them on 12 October 2006.  

10.  On 13 October 2006, a PEB convened at Fort Sam Houston, TX to consider his case.  The PEB determined his MEB diagnosis of sleep apnea was not separately unfitting and opined it should be controllable with a CPAP device once he received one.  The PEB determined the applicant was physically unfit for further service based on the following diagnosed conditions under VASRD codes indicated.  Each condition was rated at 10% and he was assigned a combined physical disability rating of 20%:

* 5009 and 5003 - Chronic pain both knees:

* ROM 0-180 degrees
* Although longstanding, this condition makes it difficult to perform his duties as an 11B
* Rated as slight/constant

* 5299 and 5242 - Chronic low back pain:

* secondary to degenerative disc disease
* without neurologic deficit
* ROM limited by pain, positive tenderness

11.  The PEB informed him that ratings of less than 30% for Soldiers with less than 20 years active service required separation with severance pay in lieu of retirement and the amount of severance pay would be based on his active duty service time and not his disability rating.  He was also informed he would receive the same amount of severance pay regardless of whether his overall rating was 10% or 20% and advised to contact a VA counselor to learn about his eligibility for additional benefits.

12.  The PEB recommended that he be separated with entitlement to severance pay if otherwise qualified.  On 17 October 2006, he concurred with the PEB findings and recommendations and waived his right to a formal hearing.

13.  On 3 January 2007, he was honorably discharged under the provisions of paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability with entitlement to severance pay.  His DD Form 214 shows he received $70,768.80 in severance pay based upon his completion of 14 years, 1 month, and 24 days of active service.

14.  In connection with the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official determined the applicant's conditions of right shoulder pain and migraines were properly not listed on his MEB as there was no evidence that such conditions did not meet medical retention standards in accordance with Chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  The mere presence of a condition does not, of itself, justify a finding of unfitness because of physical disability.  Only conditions that are found to be unfitting by the military are eligible for military disability compensation.

15.  The advisory official noted the applicant had concurred with the findings of both the MEB and the PEB.  He also determined the applicant had not provided any evidence of error in the 2006 PEB findings and emphasized the fact that higher subsequent VA ratings are not evidence of PEB error.  The PEB's findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were in accordance with all statutes, directives, regulations, and policies that were in existence at the time of the applicant's PEB.

16.  The advisory official attested:

"If the applicant's case was to be processed under the statutes, directives, and policies now in effect a PEB would rate each unfitting knee at 10% based upon painful motion and functional loss (4.40 and 4.59 VASRD) and at 20% for his limited ROM of the back between 30 and 60 degrees of flexion.  This would result in a combined rating of 40% and permanent disability retirement (10% + 10% = 19% + bilateral factor for the knees = 1.9% which = 21% + 20 = 37 = 40%)."

17.  A copy of the advisory opinion was furnished to the applicant and he was afforded an opportunity to submit a response within 30 days.  To date, no response was received from him. 

18.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  It provides for MEB's, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

19.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.

20.  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 rating of at least 30%.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%.

21.  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.  The provisions of this policy are being applied retroactive to 11 September 2001.

22.  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. 


23.  Paragraph 4.40 of the VASRD provides disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.

24.  Paragraph 4.59 of the VASRD provides with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints.  Muscle spasm will greatly assist the identification.  Sciatic neuritis is not uncommonly caused by arthritis of the spine.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.

25.  The VASRD provides general rating formulas for diseases and injuries of the knees.  It states, in pertinent part, that if slight constant pain exists a 10% disability rating will be assigned for each knee. 

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 partial 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 Department of Defense policy guidance requiring the use of the VASRD in assigning disability ratings.  

2.  The physical exam conducted during his MEB processing documented a history of a 1997/98 injury to the right shoulder with a 2000 MRI examination reporting no significant injury/deficits.  Additionally, his July 2005 NCOER reflected that he passed his APFT and that there were no physical limits regarding his ability to perform his assigned duties.  There were no indications that the condition had hindered his performance of duty during the 8 years the injury was reported.  The medical exam indicated that the physician had found that the applicant did not have any significant limitations regarding his upper extremities and that he had no neurologic impairments.  Accordingly, the MEB determined that his shoulder injury and migraine headaches did not warrant a PEB.  He concurred with the findings and recommendations of the MEB on 22 September 2006.

3.  The mere presence of a condition does not, of itself, justify a finding of unfitness because of physical disability.  As a result, his conditions of right shoulder pain and migraines were properly not listed on his MEB as there was no evidence that such conditions did not meet medical retention standards in accordance with chapter 3 of Army Regulation 40-501.  Additionally, the PEB found that his sleep apnea was not unfitting and not compensable as it did not adversely affect his ability to perform his assigned duties in any significant manner.  After being counseled on his rights he concurred with the PEB and waived his right to a formal hearing on 17 October 2006.

4.  The VASRD stipulates that resolution of reasonable doubt in assigning a disability rating will be resolved in favor of the claimant.  If the applicant's case was to be processed under the statutes, directives, and policies now in effect a PEB would rate each unfitting knee at 10% based upon painful motion and functional loss.  Additionally, he would be rated at 20% for his limited ROM of the back between 30 and 60 degrees of flexion.  This would result in a combined disability rating of 40% 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 40% and recommended the applicant’s retirement, by reason of permanent disability. 

5.  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 3 January 2007 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 SSG/E-6 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.  

6.  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 should be directed 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.

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 by:

	a.  amending the PEB proceedings to show he was assigned a 10% rating for each knee based upon painful motion and functional loss; a 20% rating for his limited ROM of the back between 30 and 60 degrees of flexion; a combined disability rating of 40%; and that the PEB recommended his retirement, by reason of permanent disability;

	b.  voiding his 2 November 2005 disability 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 SSG/E-6 the following day with all due transportation and travel entitlements which this correction would entitle him to; and 

	c.  providing 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 Including sleep apnea, a right shoulder injury, and migraine headaches in his evaluation for unfitness.



      __________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)                                         AR20100008427



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ABCMR Record of Proceedings (cont)                                         AR20100008427



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