F
		IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20100024672 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request to increase his disability rating percentage for his cervical spine injury from 20 to 30 percent (%) and his combined rating from 40 to 50%.

2.  Counsel states the medical evidence provided shows the applicant meets a 30% evaluation for his cervical spine pain and limitation of motion.  The formal Physical Evaluation Board (PEB) inadvertently overlooked the significance of the range of motion figures and he did not rate him at the higher level.

3.  Counsel provides copies of the applicant's PEB, Northeastern Montana Orthopedics Progress Note, and a statement from the applicant's physician which were part of the prior decisional documentation.

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 AR20080017169, on 8 October 2009.

2.  Counsel's modification of this request to specifically address the applicant's range of motion in his neck is new argument which warrants consideration by the Board.

3.  The applicant, a Reserve Corps of Engineers lieutenant colonel, was ordered to active duty in support of Operation Iraqi Freedom on 13 June 2004.  He served in Iraq/Kuwait as a Deputy (Engineer) District Commander - Forward from 25 June 2004 through 22 April 2005, when he was medically evacuated to Fort Bliss, TX for medical evaluation and treatment.

4.  On 21 June 2005, a Medical Evaluation Board (MEB) convened at William Beaumont Army Medical Center in El Paso, TX to evaluate the applicant’s diagnosed conditions of cervical spondylosis with myelopathy; lumbar spondylosis; chrondromalacia patellae, left knee; osteoarthritis (ankle and midfoot, bilateral); hallux limitus, right foot; flexible hammertoes, bilaterally, and peroneal tendinitis, left foot (found to meet retention standards).  The MEB shows forward flexion of 35 degrees.  The MEB recommended the applicant's referral to a PEB.

5.  On 3 August 2005, an informal PEB considered the applicant’s diagnosed conditions of chronic radiating neck pain with symptoms pre-dating recent activation but becoming worse after activation.  Imaging shows degenerative disc disease at several levels with herniated disc at C5/C6 and C6/C7.  The exam showed decreased motion [no range of motion study in evidence], paraspinal tenderness, and no clinical signs of radiculapathy.  The PEB recommended a 20% disability rating percentage for this condition.  The PEB also rated the applicant for bilateral hammertoes 2 through 5 and recommended a 10% disability rating percentage.  The PEB recommended 0% for the remainder of his diagnosed conditions, including low back pain.  The PEB recommended the applicant be retired by reason of permanent disability with a 30% disability rating percentage. 

6.  A Standard Form (SF) Form 600 (Chronological Record of Medical Care), dated 26 August 2005, afforded the applicant the diagnoses of cervical intervertebral disc degeneration and cervical spondylosis with myelopathy.

7.  In a 15 September 2005 Northeastern Montana Orthopedics Progress Note, Dr. M------ J. F-- states both he and a physical therapist measured the applicant's range of motion.  The applicant's cervical flexion was 15 degrees with an extension of 25 degrees (due both to a mechanical block as well as pain).  This examination also evaluated his thoracolumbar spine.  Dr. F-- notes the reason for the examination was for the applicant's possible increase in his disability evaluation.
8.  On 20 September 2005, a formal PEB was convened at Fort Lewis.  It afforded the applicant an increased evaluation on his chronic low back pain with notation of Dr. F--'s findings of flexion of 35 degrees.  It continued the 20% evaluation for chronic radiating neck pain stating he had a range of flexion of
30 degrees.  It does not indicate that the same private medical evidence was considered in determining the applicant's cervical spine problems.  

9.  On 30 September 2005, the applicant nonconcurred and appealed the findings of this PEB.

10.  On 5 October 2005, a second formal PEB found the applicant was physically unfit and recommended his retirement for permanent disability with a combined 40% disability rating percentage.  This PEB recommended the applicant receive a 20% disability rating percentage for chronic radiating low back pain and degenerative disc disease, a 20% disability rating percentage for radiating neck pain, and a 10% disability rating percentage for osteoarthritis of the ankles and feet (including hammertoes).

11.  The applicant non-concurred with the findings and recommendations and submitted a rebuttal to the PEB findings on 17 October 2005.  He contended that the PEB had not given him a fair and just hearing.  It had erroneously combined his hammertoe disability with osteoarthritis of the ankles and feet for a 10% rating percentage and had determined his injuries were not an instrumentality of war.  He requested that the PEB’s findings be changed to reflect a 50% disability rating percentage due to injuries caused by an instrumentality of war.

12.  On 18 October 2005, the PEB responded to the applicant’s appeal to the effect that the board believed his case had been properly evaluated in accordance with Army Regulations and policies and assured the applicant that the members had considered all relevant evidence and arguments submitted in his case.  He was further advised that his case and rebuttal were being forwarded to the U.S. Army Physical Disability Agency (USAPDA) for further review and processing and that he should forward any additional evidence he acquired for consideration by that agency.

13.  On 1 November 2005, the applicant was medically retired by reason of permanent physical disability under the provisions of Army Regulation 635-40, paragraph 4-24B(1) with a 40% disability rating percentage.

14.  The prior ABCMR review denied the applicant's request for an increased evaluation for his hammertoes and that his injuries were caused by an instrumentality of war.

15.  Title 38, Code of Federal Regulations (CFR), book C, section 4.71, provides that injuries of the spine (for diagnostic codes 5235 to 5243), with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease are rated as follows:

unfavorable ankylosis of the entire cervical spine
40%
forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine
30%
forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis
20%
forward flexion of the cervical spine greater than 30 degrees but not greater than 40 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
10%
16.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Counsel states the medical evidence provided shows the applicant meets a 30% disability rating percentage evaluation for his cervical spine pain and limitation of motion.  The formal PEB inadvertently overlooked the significance of the range of motion figures and did not rate him at the higher level.

2.  The applicant nonconcurred with several aspects and disability levels as set forth in his informal and his first formal PEB, providing additional medical documentation for an additional review.

3.  The second formal PEB shows that they utilized the lumbar range of motion finding from the applicant's private doctor (Dr. F--) to afford the applicant an increased percentage from 0% to a 20% evaluation.  However, the PEB decisional document does not indicate that this private medical examination was also considered in regard to the applicant's cervical spine range of motion.  The PEB had not originally considered his lumbar spine condition; it had considered his cervical spine condition.

4.  Dr. F--'s range of motion findings for the applicant's neck show 15 degrees of flexion due to both a mechanical block as well as pain.  The MEB's findings, three months prior, indicates 35 degrees of flexion.  

5.  The significant difference in the degree of cervical flexion between the later private examination (Dr. F--'s) and the MEB findings is not addressed in the final formal PEB.  However, in the absence of any reason for the significant degradation in function between the two exams, the MEB exam should be considered less biased and accepted as the more accurate.

6.  Without any secondary evidence to determine which findings are correct, the presumption of regularity must be invoked.  Therefore, there is an insufficient basis for granting the applicant's requested relief.

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 AR20080017169, on 8 October 2009.



      __________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)                                         AR20100024672



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ABCMR Record of Proceedings (cont)                                         AR20100024672



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