IN THE CASE OF:	  

		BOARD DATE:	    5 April 2011

		DOCKET NUMBER:  AR20100014079 


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 reconsideration of his earlier request for his medical discharge with severance pay to be changed to a medical retirement.  

2.  The applicant states:

   a.  He was improperly medically discharged from the Army with a 20 percent disability rating and severance pay.
   
   b.  The Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) physician failed to include critical test results which would have resulted in a medical retirement.
   
   c.  Tests were not performed and the MEB/PEB physician’s findings were, therefore, incomplete and erroneous.  
   
   d.  A sleep study was performed on 27 April 2007 which substantiated the preliminary diagnoses of Army neurologists.  
   
   e.  The inclusion of the results of the sleep study in his PEB would have resulted in a 50 percent disability rating and automatic medical retirement.
   
   f.  He was a career Soldier with nearly 12 years of honorable and distinguished service.  He served in the Cold War, Persian Gulf War, Macedonia, Bosnia, and would still be in uniform today if he had not been injured.  

3.  The applicant provides:

* a self-authored statement
* a Diagnostic Polysomnogram Sleep Study performed by the Department of Veterans Affairs (VA) for sleep apnea (which is a sleep disorder characterized by abnormal pauses in breathing or instances of abnormally low breathing during sleep])
* letter from a physician
* military medical documents
* 50 documents from his military service record [listed in table of contents]

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20040003038 on 12 April 2005.  

2.  The applicant provided a self-authored statement, sleep study, and a letter from a physician as new evidence that will be considered by the Board.  

3.  The applicant completed prior enlisted service in the Regular Army from 15 August 1989 to 27 January 1993.  He was appointed a Reserve second lieutenant with a concurrent call to active duty on 28 January 1993.  

4.  He consulted with a neurologist on 28 November 1994.  The consultation report indicates he experienced increased sleepiness after he returned from Saudi Arabia. 

5.  On 1 February 1995, he consulted another neurologist for possible narcolepsy.  The consultation report indicates the applicant had difficulty waking up in the morning, chronic fatigue, and excessive daytime somnolence [drowsiness or sleepiness].  The physician stated there was no evidence to support narcolepsy which is not the same as trouble waking up and falling asleep easily.  The physician also stated the applicant already had a consult for a sleep study which he supported to evaluate for excessive daytime somnolence.  

6.  He was promoted to captain on 1 October 1997.  

7.  On his Consultation Sheet, dated 11 February 1998, the physician indicated the applicant should be referred to neurology for concern about difficulty waking up.  

8.  The applicant provided a Referral for Civilian Medical Care, dated 
13 February 1998, which indicates he had a long history of daytime somnolence, and a history of snoring, and spinal pain.  The referral indicates he was initially scheduled for a sleep study in Germany that was never performed.  The purpose of referral was to rule out sleep apnea.  

9.  On 16 February 2000, he completed a Standard Form 93 (Report of Medical History) and did not indicate that he experienced sleep apnea.  

10.  On 18 April 2000, he was evaluated by an MEB at the Martin Army Community Hospital, Fort Benning, GA.  He was diagnosed as having status post cervical spine trauma with posttraumatic arthritis and degenerative disc disease, chronic low back pain that was secondary to posttraumatic arthritis and degenerative disc disease, detrusor hyperreflexia [irritable bladder], and erectile dysfunction.  The MEB recommended that he be referred to a PEB.  He agreed with the board’s findings and recommendation and submitted a statement in his own behalf.  He stated the narrative summaries were ostensibly correct and he clarified some of the statements.  He elected not to continue on active duty.

11.  On 26 April 2000, an informal PEB found him unfit for military service due to chronic neck pain, status post cervical spine trauma with posttraumatic arthritis and degenerative disc disease, low back pain due to posttraumatic arthritis and degenerative disc disease rated as moderate/constant.  The PEB determined that the applicant’s detrusor hyperreflexia and erectile dysfunction were not unfitting and, therefore, not ratable.  The PEB recommended that the applicant be discharged with severance pay and rated 20 percent disabled.  The applicant did not concur with the informal PEB’s findings and recommendation and demanded a formal PEB.

12.  On 30 August 2000, a formal PEB convened and determined that he was physically unfit due to chronic neck pain, status post cervical spine trauma with post-traumatic arthritis, degenerative disc disease, and chronic low back pain, without significant neurologic abnormality.  The formal PEB determined that his detrusor hyperreflexia and erectile dysfunction were not unfitting and, therefore, not ratable.  The PEB recommended that he be discharged with severance pay and rated 20 percent disabled.  He did not concur with the PEB findings and recommendation and submitted a rebuttal.  

13.  On 19 September 2000, the formal PEB president informed the applicant that his rebuttal had been considered and no change to the findings and recommendation was warranted.  He was informed that the case would be forwarded to the Physical Disability Agency (PDA) along with his rebuttal and the minority report of the PEB.
14.  In a letter, dated 25 September 2000, the PDA informed the applicant that the PEB correctly applied the rules that govern PEB findings, and the PEB’s findings and recommendation were supported by substantial evidence and affirmed.  He was later informed that his disability had been classified as combat related.

15.  Between 27 May 1993 and 23 October 2000, he received seven Officer Evaluation Reports (OERs) which show he performed his duties in his assigned military occupational specialty 11A (Infantryman) and received top block and center of mass ratings.  These reports do not indicate he was limited in performing his duties due to sleep apnea.  

16.  He was discharged from active duty on 3 November 2000 under the provisions of Army Regulation 635-40, paragraph 4-24b(3) by reason of physical disability with severance pay.  He had completed 7 years, 9 months, and 6 days of active military service and 3 years, 5 months, and 13 days of prior active military service.  

17.  On 12 April 2005, the ABCMR denied his request to correct discharge to show he was placed on the retired list due to physical unfitness with a  
40 percent disability under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5293 for intervertebral disc syndrome; 20 percent disabled under VASRD code 5290 for status post cervical spine fracture with residual traumatic arthritis and demonstratable deformity of a vertebral body; and 20 percent disabled under the provisions of Title 38 Code of Federal Regulations (CFR) for voiding dysfunction, incontinence requiring changing absorbent material less than two times per day.

18.  On 7 April 2007, he underwent a Diagnostic Sleep Study.  The purpose of the sleep study was to differentiate sleep problems due to chronic pain, bad dreams, medicines, etc., from sleep problems due to apnea [brief pauses in breathing] and hypopnea [a disorder which involves episodes of overly shallow breathing].  The sleep study revealed he suffered 295 apnea and hypopnea events during his 8-hour test, which confirmed he had severe, chronic, obstructive sleep apnea.  

19.  In a VA letter, dated 28 November 2008, the Chief, Pulmonary Medicine stated the applicant had been referred to Pulmonary Medicine by his primary care physician for evaluation for a sleep study in November 2006.  A review of his military medical records indicated a long history of sleep problems and referrals for sleep studies by Army neurologists.  The Chief, Pulmonary Medicine stated the long wait times apparently prevented the studies from being performed and the applicant was medically discharged from the Army with a 20 percent disability rating for combat related neck and back injuries without consideration for any sleep issues.

20.  He provided a self-authored statement in support of his claim in which he stated:

   a.  Based on his new medical evidence, he should have been permanently medically retired with a 60 percent disability rating rather than a medical discharge with a 20 percent disability rating with severance pay.  
   
   b.  He was a dedicated career infantry officer and he intended to make the Army his life. 
   
	c.  He broke his neck and back in a duty-related motor vehicle accident in December 1995.  He recovered and returned to full duty.  

	d.  He reinjured his neck and back in February 1998 by falling down a hillside in the rain.  He rolled over several tree stumps during a night tactical exercise at Fort Benning, GA.  

	e.  His injuries resulted in severe pain, neurological deficits, bowel and bladder incontinence, and erectile dysfunction.  The MEB found him unfit for continued military service for status post cervical trauma with posttraumatic arthritis and degenerative disc disease, chronic low back pain secondary to posttraumatic arthritis, degenerative disc disease, detrusor hyperreflexia, and erectile dysfunction.  

	f.  The MEB physician relied on electromyogram (EMG) tests conducted by technicians rather than by board certified neurologists.  The MEB physician ignored and failed to conduct the additional neurological tests requested by the U.S. Army Spinal Cord Surgeon and Chief of Orthopedics.  

   g.  The PEB would have been compelled to rate MEB diagnoses 3 and 4, which would have resulted in a 60 percent disability retirement.  

21.  In the processing of this case, an advisory opinion was obtained from the PDA.  This office stated that there was insufficient evidence to conclude that a PEB would have found the applicant unfit for sleep apnea in 2000 and that military disability compensation can only be provided if there was a finding of unfitness for that condition.  It was recommended that no corrections be approved for the applicant’s military records.  



22.  The opinion stated the applicant:

* was separated from the military with severance pay in 2000 based on his unfitting conditions of back and neck pain
* submitted a sleep apnea study performed by the VA and military records from 1995 to 1998 which referenced complaints of sleep problems
* submitted military medical records from 1995 and 1998 which referenced complaints of his sleep problems 
* left the block labeled “frequent trouble sleeping” unmarked in his February 2000 Standard Form 93 and the physician’s comments at the end of the document did not include any report of complaints regarding sleep problems.  

23.  The opinion stated that for a condition to be compensable it must first be found unfitting (Department of Defense Instruction 1332.38, E.2.1.7).  The mere existence, or listing, of a condition does not, of itself, justify a finding of unfitness because of physical disability (paragraph 3-1, Army Regulation 635-40).  A review of the applicant’s OERs and OER support forms from 1993 through October 2000 revealed outstanding performance, citations for best qualified and positive comments regarding his mental and physical abilities to perform his assigned duties.  

24.  The opinion also stated that the applicant’s referral into the disability system was based only on his complaints and treatment for back and neck pain, not sleepiness during duty hours which significantly interfered with his assigned duties.  His physical profile only listed back and neck problems limiting his duty.  This was confirmed by his 10 January 2000 commander’s performance memorandum which stated the applicant’s only problems affecting his duties were those cited in his limiting physical profile; there were no comments that sleepiness during duty hours impacted his performance.  

25.  Additionally, the opinion stated the MEB did not include any complaints from the applicant relating to sleep problems and the applicant concurred with his MEB contents.  A review of the many appeals and comments rendered by the applicant during the 2000 disability processing revealed no statements that sleep problems were affecting him to the point that those sleep problems caused him to be unable to perform his duties.  

26.  He was provided a copy of the advisory opinion to allow him to provide comments or a rebuttal.  However, he did not respond within the allotted timeframe.   



27.  References:  

   a.  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.  

   (1)  Paragraph 3-1 contains guidance on the standards of unfitness 
because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

   (2)  Paragraph 3-5 of the PDES regulation contains guidance on rating 
disabilities.  It states, in pertinent part, that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

   b.  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 rated at least 30 percent.

   c.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.
   
   d.  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 applicant’s contention that he was improperly medically discharged from the Army with a 20 percent disability rating and severance pay is acknowledged.  However, the evidence of record does not indicate his disability was improperly rated by the PEB, that the PEB failed to properly consider any other conditions, or that his separation with severance pay was not in compliance with the law and regulation.

2.  His medical documents show he consulted neurologists in November 1994, February 1995, and February 1998, for complaints of sleepiness, difficulty waking up in the morning, chronic fatigue, and excessive daytime somnolence.  Although he received a referral for a sleep study in February 1998 his service record is void of evidence which indicates he underwent a sleep study prior to his physical disability processing.  Due to the passage of time, it cannot be determined the basis for him not receiving a sleep study.  

3.  He was evaluated by an MEB on 18 April 2000.  The MEB evaluated all available clinical records, laboratory findings, and physical examinations to determine if he met the medical retention standards of Army Regulation 
40-501 (Standards of Medical Fitness), chapter 3.  He agreed with the findings of the MEB and indicated the narrative summaries were correct.  

4.  The evidence of record does not support his contention that the MEB physician failed to include critical test results which would have resulted in him receiving a medical retirement.

5.  His service record is void of evidence which indicates his sleep problems rendered him unfit to perform his duties.  During his tenure on active duty, he received excellent OERs.  

6.  An informal and formal PEB found him unfit for military service for chronic neck pain, status post cervical spine trauma with posttraumatic arthritis and degenerative disc disease, low back pain due to posttraumatic arthritis and degenerative disc disease rated as moderate/constant at a 20 percent combined disability rating.  He was discharged from active duty under the provisions of Army Regulation 635-40, paragraph 4-24b(3), due to disability with entitlement to severance pay.

7.  The evidence of record shows he did not undergo a sleep study test until 2007, which was 7 years after his MEB/PEB.  There is no evidence sleep apnea rendered him unfit to perform his duties.  

8.  The law provides for a retirement of a member who has at least 20 years of service or a disability rated at least 30 percent disabling.  Since he was given a 20 percent combined disability rating, he did not meet the requirements for a medical retirement.  

9.  He has not provided sufficient evidence which shows his disability processing was in error or unjust or that his conditions were improperly evaluated such as to warrant a rating higher than 20 percent.  Therefore, it has been determined that his discharge by reason of physical disability with entitlement to severance pay was proper and correct at the time and there is no basis to change his discharge to a medical retirement.

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 to amend the decision of the ABCMR set forth in Docket Number AR20040003038, dated 12 April 2005.  




      ___________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)                                         AR20100014079



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ABCMR Record of Proceedings (cont)                                         AR20100014079



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