IN THE CASE OF:	  

		BOARD DATE:	  1 August 2011

		DOCKET NUMBER:  AR20100028715 


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 13 December 2004 DA Form 199 (Physical Evaluation Board (PEB) Proceedings) as follows:

* Add Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5241 for cervical fusion
* Add VASRD code 5003 for degenerative arthritis
* Show a 60% combined total disability rating
* Payment of back pay and allowances from 5 February 2005 (date placed on the Temporary Disability Retired List (TDRL)) to the present

2.  The applicant states he was injured in Iraq while returning from Balad to Baghdad airport when a sniper began shooting at his convoy.  He jerked his head around and injured his neck.  He stayed in Iraq until January when the pain became unbearable.  He was medically evacuated to Brooke Army Medical Center (BAMC), Fort Sam Houston, TX.  He was ultimately placed on the TDRL in February 2005.  However, the PEB listed all his medical issues under fibromyalgia and awarded him a 40%, non-combat related, disability rating.  

3.  The applicant provides a binder that contains multiple enclosures as follows:

* Enclosures A through JJ for his neck condition
* Enclosures KK through ZZ for his knee condition



CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the U.S. Army Reserve as a second lieutenant and executed an oath of office on 25 May 1985.  He served in a variety of assignments and attained the rank of major (MAJ).

2.  He was ordered to active duty on 10 February 2003 and subsequently served in Kuwait/Iraq in support of Operation Iraqi Freedom.  

3.  His records contain multiple "Line of Duty (LD)" determinations for various issues related to hypertension, right knee meniscal tear, neck pain, lower back pain, migraine, and degenerative disc disease, some of which occurred during or were aggravated by his service in Iraq. 

4.  He was medically evacuated to BAMC, Fort Sam Houston, and subsequent to several medical evaluations, he was referred to the Army physical disability evaluation system (PDES).

5.  On 22 October 2004, a medical evaluation board (MEB) convened at Fort Sam Houston, TX, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of migraine, neck pain secondary to degenerative disc disease, right knee chondromalacia, lower back pain, and fibromyalgia.  The MEB recommended his referral to a PEB.  He agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

6.  On 13 December 2004, an informal PEB convened at Fort Sam Houston, TX. The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to fibromyalgia syndrome with diffuse pain, headaches, sleep disturbances and fatigue.  He was rated under the VASRD, assigned code 5025, and granted a 40% disability rating.  The PEB recommended he be placed on the TDRL with reexamination in July 2006.  He ultimately concurred with the PEB's finding and recommendation and waived his right to a formal hearing.  His DA Form 199 shows in:

	a.  Item 10a - "The Soldier's retirement is not based on disability for injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law." 

	b.  Item 10c - "The disability did not result from a combat related injury as defined in Title 26, U.S. Code (USC), section 104." 

7.  On 24 January 2005, Headquarters and U.S. Army Medical Department Center and School, Fort Sam Houston, TX, published Orders 024-0117 releasing him from active duty on 5 February 2005 and placing him on the TDRL with a 40% disability rating effective 6 February 2005, by reason of temporary disability. The orders show a "No" answer for the entries:

* Disability is based on injury or disease received in LOD as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law
* Disability resulted from a combat injury as defined by Title 26, USC, section 104

8.  He retired on 5 February 2005.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired in accordance with paragraph      4-24B(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of temporary disability. 

9.  On 11 March 2010, a TDRL PEB convened at Fort Lewis, WA.  The PEB found his TDRL evaluation had diagnosed him with cervical fusion and degenerative arthritis of the right knee in addition to his original fibromyalgia syndrome.  The PEB found his conditions had not improved to the extent that he was fit for duty.  However, his conditions had stabilized and assigned him:

* a 40% rating for VASRD code 5025 (fibromyalgia)
* a 20% rating for VASRD code 5241 (cervical fusion)
* a 10% rating for VASRD code 5003 (degenerative arthritis of right knee)

His combined rating equaled 60% and thus warranted his permanent retirement. He concurred with the findings and recommendation.

10.  On 16 March 2010, the U.S. Army Physical Disability Agency (USAPDA), Washington, DC, published Orders D075-18, administratively removing him from the TDRL, effective 5 February 2010, and permanently retiring him for disability with a combined rating of 60%.  The orders show a "Yes" answer for the entries:

* Disability is based on injury or disease received in LOD as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law
* Disability resulted from a combat injury as defined by Title 26, USC, section 104
11.  On 4 May 2011, the USAPDA reconsidered his original PEB (13 December 2004) and made administrative corrections to the original DA Form 199, as follows:

* added a 20% rating for VASRD code 5241 (cervical fusion), effective 13 December 2004
* added a 10% rating for VASRD code 5003 (degenerative arthritis of right knee), effective 13 December 2004
* revised the combined rating from 40% to 60%
* changed the entry in item 10a (Soldier's retirement is not based on disability for injury or disease received in LOD as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law) from "No" to "Yes" 
* changed the entry in item 10c (the disability did not result from a combat related injury as defined in Title 10, USC, section 104) 

12.  Additionally, Headquarters, U.S. Army North (Fifth Army), Fort Sam Houston, TX, published:

	a.  Orders 178-0114, on 27 June 2011, amending Orders 024-0117, issued by Headquarters and U.S. Army Medical Department Center and School, Fort Sam Houston, TX, on 24 January 2005, as amended by Orders 025-0107, issued by the same headquarters on 26 January 2005, to change the applicant's percentage of disability from "40%" to "60%."

	b.  Orders 193-0105, on 12 July 2011, amending Orders 024-0117, issued by Headquarters and U.S. Army Medical Department Center and School, Fort Sam Houston, TX, to change from "No" to "Yes" the answers to the entries:

* Disability is based on injury or disease received in LOD as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law
* Disability resulted from a combat injury as defined by Title 26, USC, section 104

13.  Army Regulation 635-40 establishes the Army 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 office, grade, rank, or rating.  It states 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.  

14.  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%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained various injuries or medical conditions that warranted his entry into the PDES.  He underwent an MEB which recommended his referral to a PEB.  The PEB appears to have combined all his conditions under one code and awarded him a 40% disability rating for fibromyalgia.  Accordingly, he retired on 5 February 2005 by reason of temporary disability.

2.  In March 2010, he underwent a TDRL PEB that found he had been diagnosed with cervical fusion and degenerative arthritis of the right knee in addition to his original fibromyalgia syndrome.  The TDRL PEB assigned him a 40% rating for fibromyalgia, a 20% rating for cervical fusion, and a 10% rating for degenerative arthritis of right knee, for a combined rating of 60%, and his permanently retired him. 

3.  Accordingly, the USAPDA published official orders administratively removing him from the TDRL, effective 5 February 2010, and permanently retiring him for disability with a combined rating of 60%.  The orders also show his disability is based on injury or disease received in LOD as a direct result of armed conflict and resulted from a combat injury as defined by the law. 

4.  In May 2011, the USAPDA reconsidered his original PEB and made administrative corrections by adding a 20% rating for his cervical fusion and a 10% rating for degenerative arthritis of right knee, and revised his rating from 40% to 60%.  Additionally, it changed the entry in item 10a and 10b as related to his injury/disease being received in LOD as a direct result of armed conflict and/or result from a combat related injury as defined by law.  

5.  Additionally, his 2005 retirement TDRL orders were also amended to change the applicant's percentage of disability from "40%" to "60%" and change the entries related to his injury/disease being received in LOD as a direct result of armed conflict and/or result from a combat related injury as defined by law.  

6.  His entitlement to retired pay while on the TDRL at a higher percentage (60%) was not addressed.  He should be entitled to all back pay and allowances, from  5 February 2005 (the date placed on the TDRL) to 5 February 2010 (the date removed from the TDRL) based on a 60% disability rating.

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:

* showing the U.S. Army Physical Disability Agency amended all of his TDRL orders and PEB documents to reflect the increased disability rating and change in armed conflict/combat injury status in a timely manner
* having the Defense Finance and Accounting Service - Cleveland, OH, audit his retired pay records
* paying him retired pay at the disability percentage rate of 60% instead of 40% from 5 February 2005 through 5 February 2010



      _______ _   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)                                         AR20100028715



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ABCMR Record of Proceedings (cont)                                         AR20100028715



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