BOARD DATE:	  9 October 2012 

		DOCKET NUMBER:  AR20120001804 


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 his physical disability rating of 10 percent (%) be increased to allow him to receive a medical retirement.  

2.  He states:

* there was a lot of chaos at Walter Reed Army Medical Center (WRAMC) and there were poor ratings, poor living conditions, and poor treatment
* he wanted to retire from the Army, but he was unfairly separated from the Army 
* he's a father of two children and he wants to provide for his family
* he has tried to get back into the service, but he was denied because of his conditions and medications
* he was evaluated at the Department of Veterans Affairs (VA) in Denver and was rated at 60% 

3.  He provides a self-authored statement, medical reports listing his medications, and a letter from the VA.  

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.  The applicant enlisted in the Regular Army on 23 January 1998.  At the completion of initial entry training, he was awarded military occupational specialty 13M (Multiple Launch Rocket System Crewmember).  He served in Peru from    20 November 2000 to 16 April 2001, Korea from 15 January 2002 to 15 January 2003, Iraq from 9 April to 29 July 2003, and in Korea again from 1 October 2004 to 20 December 2005. 

3.  On 12 January 2007, he was evaluated by a Medical Evaluation Board (MEB) and he was diagnosed as having chronic neck pain (VA Schedule for Rating Disabilities (VASRD) code of 5237).  He was referred to a Physical Evaluation Board (PEB).  During the processing of his MEB, he indicated he did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He agreed with the findings and recommendation of the MEB.  He acknowledged he understood the PEB would consider and review only those conditions listed on the DA Form 3947 (MEB Proceedings).  

4.  On 2 February 2007, an informal PEB found the applicant unfit for his chronic neck pain and rated him at 10% in accordance with VASRD 5237.  The applicant didn't concur with the PEB findings and demanded a formal hearing.  

5.  On 12 March 2007, a formal PEB agreed with the informal PEB findings and recommended the applicant be separated with severance pay.  

6.  He was honorably discharged on 10 May 2007 under the provisions of Army Regulation 635-40, by reason of physical disability with severance pay.  He completed 9 years, 3 months, and 18 days of total active service.

7.  In an 18 June 2010 letter, the VA informed the applicant he was rated at 60% for a service-connected disability.  



8.  In the processing of this case, an advisory opinion was obtained from the Legal Advisor, U.S. Army Physical Disability Agency (USAPDA).  This office recommended there be no changes made to the applicant's military records.  The advisory opinion stated:

	a.  the applicant's 20 June 2006 physical profile listed chronic neck pain as the sole limiting condition; the 10 August 2006 medical examination cleared all conditions as normal/acceptable except for the neck; and the 6 November 2006 range of motion (ROM) measurements revealed neck flexion of 30 degrees active and 35 degrees passive.

   b.  the applicant's MEB was completed on 12 January 2007 and listed only one diagnosis of chronic neck pain.  The physical examination revealed full ROM with slight/constant complaints of neck pain.  The applicant complained of some occasional headaches, which were believed to have been caused by his neck pain, but the complaints of headaches were reviewed and he was released without limitations regarding his headaches.  On 19 January 2007, the applicant concurred with the contents of the MEB findings.

	c.  on 2 February 2007, an informal PEB found the applicant unfit for his chronic neck pain and rated him at 10% in accordance with VASRD 5237.  The applicant nonconcurred with the informal findings on 14 February 2007 and he demanded a formal hearing.  On 12 March 2007, a formal PEB agreed with the informal PEB findings and recommended separation with severance pay.  On 20 March 2007, the applicant concurred with the formal PEB findings.  

	d.  to be rated at 20% for his cervical condition, the applicant's cervical flexion ROM would have to be reduced to between 15 and 29 degrees flexion.  A 20% rating would have resulted in no changes to the applicant's final compensation or disposition (Title 10 U.S. Code, section 1203).

	e.  only conditions that are determined to be unfitting are compensable in the military disability system (see Army Regulation 635-40, paragraph 3-1 and Department of Defense Instruction 1332.38 (Physical Disability Evaluation)).  

   f.  there is no evidence in the case file or provided by the applicant which indicates there were other medical conditions that would not have met medical retention standards in accordance with Army Regulation 40-400 (Patient Administration), chapter 3; required limiting protections in a physical profile; were 


considered to be hindering his performance of duty according to any command reports; and would have been found to be unfitting in accordance with a preponderance of the evidence.  VA ratings that may have been higher or different than those provided by the PEB, are not evidence of any error or injustice by the MEB/PEB.  

9.  A copy of the advisory opinion was forwarded to the applicant to allow him to provide comments or a rebuttal.  As of 24 May 2012, no response had been received from the applicant.  

10.  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 or her office, grade, rank, or rating.  PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

11.  Army Regulation 635-40, appendix B, states 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.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating.  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.

12.  Ratings under VASRD Code 5237 are shown below:

Condition
Percent
Unfavorable ankylosis of the entire spine
100
Unfavorable ankylosis of the entire thoracolumbar spine
50
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
40
Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine
30
Forward flexion of the thoracolumbar spine 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 range of motion of the thoracolumbar spine not greater than 120 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 thoracolumbar spine 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, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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% or more of the height
10
13.  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%.

14.  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 rated at less than 30%.  Section 1212 provides that a member separated under section 1203 is entitled to disability severance pay.

15.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was not given a fair physical disability rating because there was a lot of chaos at WRAMC during his evaluation.  However, his service record is void of evidence to support his claim.  



2.  On 12 January 2007, he was evaluated by an MEB which found he had chronic neck pain under VASRD code 5237.  His service record is void of evidence which indicates he had any additional unfitting medical conditions.  

3.  A 2 February 2007 informal PEB found him unfit for military service for chronic neck pain with a 10% disability rating.  He didn't concur with the informal PEB findings and demanded a formal hearing.  

4.  A 12 March 2007 formal PEB agreed with the informal PEB findings and recommended the applicant be separated with severance pay.  As a result he was discharged from active duty under the provisions of Army Regulation 635-40 by reason of disability with severance pay.

5.  VASRD code 5237 requires forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees to qualify for a 20% disability rating or forward flexion of the cervical spine 15 degrees or less or, favorable ankylosis of the entire cervical spine to qualify for a 30% disability rating.  

6.  The USAPDA advisory opinion states the applicant's 6 November 2006 ROM measurements revealed neck flexion of 30 degrees active and 35 degrees passive.  It also states to be rated at 20% for his cervical condition, the applicant's cervical flexion ROM would have to be reduced to between 15 and 29 degrees flexion.  A 20% rating would have resulted in no changes to the applicant's final compensation or disposition.  A 30% disability rating would have required his cervical flexion ROM to have been 15 degrees or less.  

7.  The law provides for retirement of a member who has at least 20 years of service or a disability rated at least 30%.  Since there is insufficient evidence to show he should have been given a rating greater than 10% he did not meet the requirements for 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 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)                                         AR20120001804





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ABCMR Record of Proceedings (cont)                                         AR20120001804



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