IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20100027521 


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 a re-evaluation of his medical evaluation board (MEB) and physical evaluation board (PEB) to show that they had properly considered all of his medical conditions.

2.  The applicant states he understands that the MEB and PEB procedures were performed with many deficiencies and without giving him proper counseling; therefore, his rights were violated.  He contends that all of his injuries were the direct result of an armed conflict.  He was forced to sign many papers while under medication that made him unaware of the time and place.  As a result, his Army career was ended and he lost his Department of Defense (DOD) job.  Only his depression disorder was considered.  Many of his medical conditions were not considered and he never received the optimum medical care needed.  Currently, some of his conditions are progressive, permanent, and require prolonged medical care.  He has been under heavy medication since 2006.  The errors surfaced a few months ago due to an Inspector General inquiry concerning the lost of his Reserve membership.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 July 2006
* a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 25 June 2004


* five DA Forms 2173, dated 6 June 2006
* a MEDCOM Form 688-R (Medical Record - Provider Orders), dated          6 December 2004
* Standard Form 522 (Request for Administration of Anesthesia and Performance of Operations and other Procedures), dated 6 December 2004
* DD Form 2770 (Abbreviated Medical Record), dated 14 December 2004
* Standard Form 509 (Progress Notes Medical Record), dated                   14 December 2004
* DA Form 199 (PEB Proceedings), dated 27 June 2006
* Department of Veterans Affairs (VA) Rating Decision, dated 29 December 2009

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.  At the time of his application, the applicant was a staff sergeant (SSG)/E-6, U.S. Army Retired Reserve.

3.  On 10 December 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  He served in a designated imminent danger pay area from 10 February 2004 to 3 February 2005.

4.  A DA Form 2173, dated 25 June 2004, reports that on 14 June 2004, at Camp Arifjan, Kuwait, the applicant tripped and fell backwards on the motor pool floor.  The metal flooring was cargo pallets.  His foot got caught in between the groove or connecting panel line, making him trip.  He sustained an acute low back strain.  His injury was found to be in the line of duty. 

5.  Five DA Forms 2173, each dated 6 June 2006 and signed by the same commanding officer, appear to have identical entries except for block 15 (Details of accident or history of disease).  This block shows the following five different entries:

* Soldier upon returning from Iraq has been treated for pain in the left hip after a fall
* Soldier while deployed to Kuwait had surgery to the left knee arthroscopy
* Soldier treated on several occasions upon returning for a mental condition and received the diagnosis of depressive disorder
* Soldier treated on several occasions for pain in both hands and was diagnosed with bilateral carpal tunnel syndrome
* Soldier treated on several occasions for the complaint of hearing loss;  audiogram done showed moderate to severe loss in right ear and mild/moderate in left ear

6.  A DA Form 199, dated 27 June 2006, reports that on that date, a PEB convened at Fort Sam Houston, TX to consider the applicant’s case.  

	a.  The PEB assigned a 10 percent (%) disability rating percentage under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 9434 for depressive disorder, not otherwise specified, that required psychotropic medication and outpatient treatment.  This condition was rated as mild social/industrial impairment.

	b.  The PEB assigned a 0% disability rating percentage under the VASRD codes 5099 and 5003 for left knee pain, status post-arthroscopy in February 2006, without neurologic abnormality.  Left knee range of motion zero degrees - 120 degrees, lachman's test negative, intermittent use of narcotic medication.  Pain rated as slight and intermittent.  

	c.  The PEB further indicated the applicant’s disability occurred while he was entitled to basic pay, was in the line of duty, and did not result from a combat-related injury.

	d.  The PEB determined the applicant’s medical and physical impairment prevented reasonable performance of his duties and concluded he was physically unfit for further service and recommended a combined disability rating of 10%.

	e.  The PEB indentified the applicant as a Soldier with less than a 30% disability rating who may have at least 20 qualifying years for Reserve retirement.  As such he was informed of his option of accepting disability severance pay and 


forfeiting his Reserve retirement pay, or requesting a transfer to an inactive Reserve status and to receive Reserve Retired pay at age 60. 

	f.  The available copy of the DA Form 199 is not signed or acknowledged by the applicant or counselor.

7.  On 31 July 2006, the applicant was released from active duty and he was transferred to the 65th Regional Readiness Command (RRC), located at Fort Buchanan, Puerto Rico.

8.  Item 18 (Remarks) of the applicant's DD Form 214 states:

	a.  he was found unfit by reason of physical disability;

	b.  he was granted a continuance in the Active Reserve to achieve 20 years of qualifying service for a Reserve retirement; and

	c.  severance pay was not authorized.

9.  A VA Rating Decision provided by the applicant, dated 29 December 2009, indicates that the VA awarded him a combined 90% disability rating percentage for his service-connected conditions.  The following VASRD conditions were listed as being subject to compensation:

* 9434:  Depression Disorder at 30% from 1 September 2009
* 5243:  Left paracentral disc herniation at 20% from 20 June 2007
* 5003-5201:  Degenerative joint disease right shoulder at 20% from
1 September 2009
* 5003-5201:  Degenerative joint disease left shoulder at 20% from
1 September 2009
* 5242-5003:  Degenerative changes thoracic and lumbar vertebrae at 10% from 1 August 2006
* 5260-5014:  Right knee patellofemoral syndrome at 10% from 1 August 2006
* 5251-5019:  Left hip trochantereric bursitis at 10% from 1 August 2006
* 5257:  Left knee meniscus tear at 10% from 1 August 2006
* 6260:  Tinnitus with insomnia at 10% from 1 August 2006
* 8599-8515:  Carpal tunnel syndrome, left hand at 10% from 1 August 2006
* 8599-8515:  Carpal tunnel syndrome, right hand at 10% from 1 August 2006


* 5003:  Degenerative joint disease, both shoulders at 10% from
6 September 2006 to 1 September 2009
* 8100:  Headaches (also claimed as migraines) associated with history of malaria, resolved at 0% from 6 September 2002
* 6034:  Right eye nasal pterygium at 0% from 1 August 2006
* 6304:  History of malaria, resolved at 0% from 1 August 2006
* 6100:  Bilateral hearing loss at 0% from 1 September 2009

10.  This VA Rating Decision shows that his combined 90% disability rating percentage from 1 September 2009 was derived based on a combined evaluation for compensation of diagnostic codes 5201, 5201, 8515, 8515, 5257, 5014, and 5019.

11.  The VA Rating Decision further lists the following VASRD conditions as not service-connected and not subject to compensation.

* 6210:  Bilateral chronic otitis externa
* 6299-6260:  Insomnia
* 6399-6304:  Dizziness
* 6699-6604:  Respiratory condition, claimed
* 7399-7307:  Gastroesophageal reflux disease claimed as blood in stools
* 7599-7522:  Erectile dysfunction associated with left paracentral disc herniation with bulging analus
* 7899-7806:  Skin condition, claimed
* 9413:  Anxiety disorders not otherwise specified with depression, claimed as nervous condition and loss of memory associated with history of malaria, resolved

12.  In the processing of this case, on 25 March 2011, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA), Washington, DC.  The advisory official stated:

	a.  the applicant's MEB was completed on 3 May 2006;

	b.  he did not meet medical retention standards due to left knee pain and depressive disorder;

	c.  the following medical conditions were evaluated as meeting retention standards:
	
* Bilateral hearing loss
* Low back pain


* Bilateral knee pain
* Bilateral hand pain (carpal tunnel syndrome)
* Headaches

	d.  the applicant's PEB (informal) was completed on 27 June 2006;

	e.  he was found unfit due to his depressive disorders rated at 10%;

	f.  his left knee pain was rated at 0% based on slight pain;

	g.  he was fully counseled by the PEB liaison officer (PEBLO) on all of his rights concerning his disability findings and initialed and signed his counseling checklist;

	h.  he concurred with the PEB's findings and recommendation and waived a formal hearing;

	i.  he waived severance pay and opted to accept Reserve retirement at age 60; and

	j.  he requested to continue on Reserve status and that he would be able to perform his assigned duties within the limits of his physical disabilities.

13.  The advisory official further stated that the applicant was properly rated for his left knee pain in 2006; however, in 2008, due to changes in the rating guidance, he would have then been found to have a 10% disability rating percentage for this condition.  Such a finding in 2006 would not have resulted in any change in the severance pay computations.  Furthermore, because the applicant waived his disability findings to accept his Reserve retirement, any changes to the rating that does not result in any change to the award of severance pay would not result in any change to the applicant's ultimate release from active duty and accepting Reserve retirement.

14.  The advisory official concluded that the applicant had not provided any evidence of error or injustice regarding his MEB and PEB findings.  Subsequent VA ratings and progression of military unfitting conditions are not supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  The USAPDA recommended denial of the applicant's request for a re-evaluation of his MEB and PEB.

15.  On 28 March 2011, the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his response he stated:
	a.  He agreed with the content of the advisory opinion.

	b.  He understood that subsequent disability ratings were not evidence of any error by the MEB or PEB.

	c.  He explained that there had been three turnovers of PEBLOs.  The major who worked his case was very rude and had no experience or training as a PEBLO.  He had asked many times for signed copies but never received anything other than a DD Form 214. 

	d.  He was treated by four different doctors which broke continuity of his treatment.  There was a practice of providing treatment for only one condition at a time, resulting in his not receiving evaluation or treatment for two of his conditions until after the final summary of his MEB.

	e.  He contends that his low back pain and headaches were not made a part of the MEB because of the lack of interest and insensitivity by the medical treatment representatives.

	f.  After he received proper medical care he was diagnosed with degenerative changes to the thoracic and lumbar vertebrae, left paracentral disc herniation with bulging analus, degenerative shoulder joint disease (both left and right), and migraines.  These conditions should have been evaluated by the MEB and PEB. 

	g.  He attaches additional medical documentation dated between December 2004 and June 2006.   Of these documents, only one sheet, dated 2 June 2006, was written after 3 May 2006, the date his MEB was completed.  That sheet does not indicate any findings or diagnoses mentioned in paragraph 12f above.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph
4-17 provides guidance for PEB's.  Specifically, it states that PEB's are established to evaluate all cases of physical disability equitably for the Soldier and the Army.

17.  The VASRD guidance on code 5003 further states inasmuch as there are no objective medical laboratory testing procedures used to detect the existence of or measure the intensity of subjective complaints of pain, a disability retirement cannot be awarded solely on the basis of pain.  Rating by analogy to degenerative arthritis as an exception to analogous rating policies may be assigned in unusual cases with a 20% ceiling, either for a single diagnosed condition or for a combination of diagnosed conditions each rated essentially for a pain value.

18.  The 2008 National Defense Authorization Act (NDAA), section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the VA.

19.  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.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army Physical Disability Evaluation System (PDES).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his MEB and PEB should be re-evaluated because they had not properly considered all of his medical conditions.

2.  The USAPDA advisory opinion clearly states that the MEB and PEB determined the applicant did not meet medical retention standards due to left knee pain and depressive disorder.  They were rated at the time as 10% disabling.  The subsequent change to the VASRD resulting in his knee pain now being ratable at 10% disabling does not provide any meaningful relief because of his option to waive severance pay and elect a Reserve retirement.

3.  There is no available medical evidence showing that the following conditions were or should have been found as unfitting at the time of his MEB/PEB:
	
* Bilateral hearing loss
* Low back pain
* Bilateral knee pain
* Bilateral hand pain (carpal tunnel syndrome)
* Headaches

4.  The VA may rate any service-connected impairment, thus compensating for loss of civilian employment.  It may also award compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  It can also evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

5.  An award or change in the disability rating granted by the VA would not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES based on the medical evidence and the severity of a condition as it existed at the time.  As a result, absent any evidence the disability ratings assigned the applicant by the PEB were not properly based on the VASRD, it is concluded the applicant was properly assigned a disability rating from the Army based on the unfitting diagnosed conditions at the time of his discharge.

6.  In view of the above, there is no basis for granting the applicant's request.

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 for correction of the records of the individual concerned.



      __________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)                                         AR20100027521



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ABCMR Record of Proceedings (cont)                                         AR20100027521



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