IN THE CASE OF:	  

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110005610 


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, in effect, that asthma be added to his unfitting conditions and his disability rating be increased.  

2.  The applicant states, in effect:

* He was rated 20% disabled by the Physical Evaluation Board (PEB) for lumbar spine which he finds "unjust and not fair"
* He was also rated as having a mild lung defect which was not rated and he finds this to be "unjust and not fair" as well
* The Department of Veterans Affairs (DVA) rated his mild lung defect as asthma and he received a 30% rating which would have placed him on the Temporary Disability Retired List
* He received an overall rating of 50% from the DVA, he was awarded 30% for asthma, 10% for left hip degenerative joint disease, 10% for lumbar spine degenerative disk disease with lumbar radiculopathy, and 10% for tinnitus
* Upon receiving his PEB findings he was not given clear instructions on the appeals process
* His medical board went on for about a year and he was tired and disgusted with the entire Medical Evaluation Board (MEB) process
* He is suffering as a result of the decision that he made
* He believes the Army just wanted to get rid of him with the least amount of effort
* As a result of this injustice he has endured many hardships

3.  The applicant provides 10 enclosures outlined in the Addendum provided with his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 January 2000.  He completed his training and was awarded military occupational specialty (MOS) 21W (Carpentry/Masonry Specialist) and later MOS 21H (Construction Engineer Supervisor).  He served in Iraq from 22 October 2005 to 12 October 2006.

2.  A DA Form 7652 (Physical Disability Evaluation System Commander's Performance and Functional Statement), dated 23 April 2009, shows the applicant's commander indicated he was fully capable of performing all of his assigned duties and he should remain in the military.   

3.  On 12 November 2009, an MEB diagnosed the applicant with low back pain secondary to a disk bulge at the level of L5-S1.  The following diagnoses met retention standards:

* Right plantar	fasciitis
* Allergic rhinitis
* Left nondominant shoulder pain
* Right ankle pain
* Restless leg syndrome
* Essential thrombocytosis
* Genital herpes
* Mild obstructive lung defect
* History of formaldehyde exposure 

4.   The MEB recommended referral to a PEB.  He agreed with the MEB findings.  

5.  On 6 January 2010, a PEB found the applicant physically unfit due to   degenerative arthritis of the spine, DVA Schedule for Rating Disabilities (VASRD) Code 5242, 20%.  The disability description on the DA Form 199 (PEB Proceedings) states the applicant reported onset of low back pain in 2008 while running.  A Magnetic Resonance Imaging (MRI) showed evidence of degenerative disc disease at L5-S1.  He was treated with physical therapy, medications and restricted duty.  He is unfit for continued military service as a construction engineering supervisor due to inability to climb in and around construction equipment, inability to lift and carry over 30 pounds, and inability to wear protective gear.  There is tenderness in the spinous process and paraspinal muscles L5-S1.  Forward flexion measured at 90 degrees with functional loss of motion due to pain at 55 degrees.  Rated 20% for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  Rated in accordance with the General Rating Formula for Diseases and Injuries of the Spine with consideration given to 4.10 and 4.40.  

6.  The MEB diagnoses of right plantar fasciitis, allergic rhinitis, left nondominant shoulder pain, right ankle pain, restless leg syndrome, essential thrombocytosis, genital herpes, mild obstructive lung defect, and history of formaldehyde exposure were determined to meet retention standards, and they were not unfitting, not rated.

7.  The PEB recommended a combined rating of 20% and that the applicant be separated with severance pay.  On 7 January 2010, he concurred with the PEB's findings and waived a formal hearing.  

8.  On 8 January 2010, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings and recommendations.

9.  On 8 April 2010, he was honorably discharged by reason of disability, severance pay, non-combat related.

10.  He provided DVA documentation which shows he was granted service connection for:

* asthma (30%)
* left hip degenerative joint disease (10%)
* lumbar spine degenerative disk disease with lumbar radiculopathy (10%)
* tinnitus (10%)
* bilateral plantar fasciitis (0%)
* status post left little finger spiral fracture (0%)
* left knee sprain (0%)
* allergic rhinitis (0%)
* gastroesophageal reflux disease with irritable bowel syndrome (0%)
* thrombocytosis (0%)
* head and facial scars (0%)
* actinic keratosis with focal ulceration dermatitis (0%)
* headaches (0%) 

11.  His overall or combined DVA rating is 50%.

12.  In the processing of this case, a staff advisory opinion was obtained from the Agency Legal Advisor, USAPDA, who recommends no changes to the applicant's military records.  The advisory opinion points out:

	a.  the applicant states his disability rating from the Army was "unjust and not fair."  He claims his 20% back rating was too low and he attached the 10% rating the DVA provided for his back as supporting evidence of the unfairness.  The applicant also requested a 30% rating for asthma based on the DVA's 30% rating provided subsequent to separation with disability severance pay.

	b.  the applicant's MEB was completed on 12 November 2009.  The only condition that did not meet medical retention standards was low back pain.  All other conditions, including mild obstructive lung defect (asthma), met medical standards.  Only the low back pain was listed on his physical profile as requiring some duty limitations.  On 23 April 2009, the applicant's commander indicated the applicant was fully capable of performing all of his assigned duties and he should remain in the military.  The applicant concurred with his MEB findings.    

	c.  on 6 January 2010, an informal PEB found the applicant unfit for low back pain and rated him 20% disabled based on restricted forward flexion of 
55 degrees (VASRD rating of 20% with flexion between 30 and 60 degrees).  All other conditions, to include asthma, were not found to have restricted the applicant's ability to perform his assigned duties and were not unfitting or compensable.  After being counseled on his legal rights and options the applicant concurred with the PEB's findings of separation with disability severance pay and waived his right to a formal hearing.

	d.  only conditions that are determined to restrict duty performance can be found to be unfitting and only unfitting conditions are compensable in the military disability system.

	e.  the applicant has provided no evidence of any errors in his disability processing.  The PEB's findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  A policy statement on how to properly rate asthma only applies if the condition is found to be unfitting.

13.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  The applicant did not respond within the given timeframe.

14.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that, after establishing the fact that a Soldier is unfit because of physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of rating.
15.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

16.  The VASRD states that VASRD Code 5242 (Degenerative arthritis of the spine) 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 is rated at:

	a.  10% when forward flexion of the thoracolumbar spine is 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, a combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined ROM 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;

	b.  20% when forward flexion of the thoracolumbar spine is greater than
30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined ROM of the thoracolumbar spine not greater than 120 degrees; or, the combined ROM 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;

	c.  30% when forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine;

	d.  40% when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine;

	e.  50% when there is unfavorable ankylosis of the entire thoracolumbar spine; and

	f.  100% when there is unfavorable ankylosis of the entire spine.


17.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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.

DISCUSSION AND CONCLUSIONS:

1.  He requests asthma be added to his unfitting conditions.  However, he provides no evidence to show asthma rendered him unfit to perform his military duties.  Since his mild obstructive lung defect (asthma) met medical retention standards, there is insufficient evidence on which to add asthma as an unfitting condition and thus is not ratable.   

2.  He contends his 20% PEB disability rating for lumbar spine is "unjust and not fair."  However, he concurred with the findings and recommendation of the PEB on 7 January 2010.  In addition, the evidence he provided shows he was only rated at 10% for his lumbar spine by the DVA.

3.  The available evidence does not show his degenerative arthritis of the spine met the criteria for a higher rating.  Since there is insufficient evidence to show his disability was improperly rated by the PEB in 2010, there is no basis for granting the applicant's request to increase his disability rating.

4.  His contention the DVA rated him 30% for asthma was carefully considered.  However, a rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  

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)                                         AR20110005610



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ABCMR Record of Proceedings (cont)                                         AR20110005610



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