IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100011554


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 the results of his Physical Evaluation Board (PEB), dated 20 December 2005, be changed to afford him at least a 30 percent disability rating, and a physical disability retirement.

2.  The applicant states he was "retired" [sic] on 10 February 2006 and one day later the Department of Veterans Affairs (VA) rated him 80 percent disabled and the Social Security Administration (SSA) stated he was unemployable.

3.  The applicant provides:

* service medical treatment records
* Medical Evaluation Board (MEB)/PEB documents
* VA medical records and rating decisions
* SSA memorandum dated 8 December 2009

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reevaluation of the applicant's PEB records.

2.  Counsel states:

* the Army did not evaluate the applicant for post traumatic stress disorder (PTSD)
* the VA rated the applicant as 30 percent disabled for PTSD, just one day after he was separated with severance pay
* his degenerative disc disease (DDD) and degenerative joint disease (DJD) were improperly rated at 0 percent
* his bilateral knee pain was improperly rated at 0 percent
* his shoulder arthralgia and headaches were improperly not rated

3.  Counsel provides a 24 December 2009 memorandum.

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 was an Army National Guard Special Forces Soldier.  On        10 February 2006, he was discharged by reason of disability with severance pay under the provisions of Army Regulation 635-40.  Based on his rank of sergeant first class (SFC/E-7) and 11 years and 20 days of active service, he was awarded $76,327.20 in severance pay.

3.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory opinion described the applicant's disability processing as follows:

	a.  The applicant's MEB was completed on 17 August 2005 with diagnoses of:

* right cervical spondylosis
* thoracolumbar spondylosis
* right shoulder subacromial impingement
* distal clavicle osteoarthritis
* right knee multi-ligamentous reconstruction
* left knee pain
* migraine headaches



   b.  A 16 November 2005 MEB addendum reported:

* the applicant's cervical pain had improved with treatment with a resulting average 63 degree cervical flexion (normal flexion is 45 degrees), with no acute surgical indications then present.  The addendum opined that reported chronic pain would limit the applicant's ability to wear a Kevlar helmet
* his thoracolumbar pain was not well controlled resulting in an average 63 degrees of flexion of that portion of the spine
* although the applicant complained of knee pain and right knee instability, MEB examination found both knees to be clinically stable.  His right knee had a slight limit of flexion, with an average of 129 degrees (normal is 140 degrees).  His left knee had normal flexion and both knees had normal extension
* the applicant complained of residual shoulder pain following successful surgery with shoulder films showing good repair with no interval widening of the corcoclavicular space; the glenohumeral joint was intact and post decompression of the acromion.  Both shoulders had full range of motion (ROM)
* his headache treatment regimen resulted in a "marked decrease" in headache severity and frequency

   c.  A DD Form 2807-1 (Report of Medical History) and a DD 2808 (Report of Medical Examination), dated 30 June 2005, indicated: 

* no psychiatric complaints and sleep problems based on pain
* no psychiatric problems were noted on examination

   d.  The applicant concurred with the MEB findings on 9 September 2005 and, on 1 November 2005, he had an informal PEB which found him unfit for headaches, with all other conditions not unfitting and not compensable.  The applicant non-concurred and requested a formal PEB.

   e.  On 23 November 2005, a formal PEB was held and found the applicant unfit for headaches at 10 percent, and unfit for back pain and bilateral knee pain at 0 percent.  The PEB recommended separation with severance pay.  After counseling and upon advice of legal counsel, the applicant concurred with the formal PEB findings and recommendation.

   f.  On 9 December 2005, the USAPDA reviewed the applicant's PEB results and returned the case to the board with instructions to review the evidence and standards for rating knees and headaches.  On 20 December 2005, the PEB revised its rating to 0 percent for headaches because of significant improvements based on new medications and because the headaches were not prostrating.  The original ratings for the applicant's back and knees were validated.  It was noted the knees did not demonstrate any instability and were rated as 0 percent based on pain policy.  The applicant concurred, but with negative comments.

4.  The USAPDA advisory opinion states the MEB and PEB correctly did not list or rate the applicant for any psychiatric conditions (e.g., PTSD) because, during the medical evaluation process, he did not indicate problems with mental health.  He may have had visits to Mental Health, but clearly never complained of symptoms or required any treatment that would have required listing a mental health condition on the MEB.

5.  The USAPDA advisory opinion likewise states the applicant's headaches were properly rated at 0 percent as he did not have prostrating headaches.

6.  The USAPDA advisory opinion states the applicant's ratings for knee and back pain were properly rated in accordance with guidance and directives in effect in 2005 [emphasis added].  However, the opinion stating, "If the applicant's painful back…were to be rated under the present guidance he would be…10 percent.  The applicant's painful bilateral knees would be rated at 10 percent for each knee.  Ratings under the present guidance would provide a total [combined] rating of 30 percent and result in a permanent disability retirement of 30 percent."

7.  The USAPDA advisory opinion concludes by stating the applicant's ratings were correct in accordance with guidance existing in 2005; however, if the Board wishes to correct the disability ratings using current standards, it may do so in order to correct a perceived injustice.

8.  The applicant was provided an opportunity to respond to the USAPDA advisory opinion and, on 27 October 2010, he concurred with the conclusion that he be rated at 30 percent and retired for disability.

9.  The National Defense Authorization Act (NDAA) for fiscal year 2008 requires the Military Departments to use the new VA Schedule for Rating Disabilities (VASRD) when evaluating PTSD, pain, and ROM issues.  In issues involving PTSD, rating decisions and payments are adjusted back to 11 September 2001.  Rating decisions and payments involving pain and ROM issues may be adjusted back to the date of enactment of the NDAA (28 January 2008).

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating.  It provides for MEBs, 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 Army Regulation     40-501 (Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

11.  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.

12.  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%.

13.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

14.  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 VASRD. 

15.  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 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. 

16.  Paragraph 4.40 of the VASRD states 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 innervations, 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.

17.  Paragraph 4.59 of the VASRD states that 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.

18.  The VASRD provides general rating formulas for diseases and injuries of the knees.  It states: 



   a.  for the knees, if slight constant pain exists a 10 percent disability rating will be assigned for each knee. 
	
   b.  for the back, assign a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests physical disability retirement.

2.  The applicant's counsel states the applicant was not evaluated for PTSD, but should have been.  He also states the applicant was not properly rated for his headaches, pain, and ROM issues.

3.  The applicant never indicated he had issues involving mental health and PTSD.  The MEB and PEB properly did not rate him for any mental health conditions.

4.  Although the applicant was properly rated at 0 percent for pain and ROM issues related to his knees and back in accordance with guidance and directives in effect in 2005, the fiscal year 2008 NDAA mandates application of VASRD ratings for pain and limitation on ROM.  In accordance with the VASRD 4.40, 4.45, and 4.59, the applicant's bilateral knee pain would be rated at 10 percent for each knee.  His back condition would be rated at 10 percent based on limitation of flexion between 60-85 degrees in accordance with VASRD Code 5237, for a combined rating of 30 percent.

5.  The USAPDA affirms that under current VASRD standards the applicant would have been rated at 30 percent disabled and retired by reason of physical disability.

6.  In the interest of justice and equity, the applicant's records should be corrected as indicated below.



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:

___x_____  ___x_____  ___x__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* modifying the disability rating previously assigned the individual by his 
20 December 2005 PEB by showing 10 percent for his back, and 
10 percent for each knee, under the proper codes, for a combined rating of 30 percent

* recharacterizing the individuals separation action from "disability, severance pay" to retirement, by reason of permanent disability

* voiding his 10 February 2006 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 SFC/E-7 the following day with all due transportation and travel entitlements to which this correction would entitle him



* paying him all back retired pay and allowances due as a result of the above changes after recovering the disability severance pay he received




      _______ _   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)                                         AR20100011554



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ABCMR Record of Proceedings (cont)                                         AR20100011554



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