IN THE CASE OF:	  

		BOARD DATE:	  2 July 2013

		DOCKET NUMBER:  AR20120015742 


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 his discharge be voided and that he be retired by reason of physical disability. 

2.  The applicant states, in effect, that his injuries occurred while on active duty between 1995 and 1999 which was verified by a line of duty investigation and the findings of the Medical Evaluation Board (MEB).  However, the Physical Evaluation Board (PEB) opined that his injuries were not service-connected because there was only evidence of one visit for medical attention.  He goes on to state that the determination was made in error because his medical records document five visits to medical facilities while on active duty for the same problem.   

3.  The applicant provides copies of his MEB and PEB proceedings and his medical treatment records.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records, though somewhat incomplete, show that he was commissioned as a U.S. Army Reserve (USAR) second lieutenant on 3 June 1995 and was ordered to active duty for 4 years.  He was promoted to the rank of captain (CPT) on 1 June 1999.  He was released from active duty on or about    30 November 1999 and transferred to the USAR.

2.  The applicant was serving as a USAR CPT on 2 April 2009 when an MEB was convened at Keller Army Community Hospital, West Point, New York to evaluate the applicant’s diagnosed medical conditions of:

* Chronic neck pain
* Multiple level cervical intervertebral disc bulges/herniation
* Cervical degenerative disc disease
* Lumbago
* Lumbar degenerative disc disease
* Bilateral shoulder pain
* Degenerative joint disease of left shoulder
* Bilateral hip pain second to degenerative joint disease
* Bilateral knee pain status post bilateral arthoscopies
* Carpal tunnel syndrome

3.  The MEB found that all diagnosed conditions did not meet medical retention standards except the diagnosis of carpal tunnel syndrome and recommended that he be referred to a PEB.  The applicant concurred with the findings and recommendations of the MEB.

4.  On 25 October 2011, a PEB was convened at the National Capital Region PEB in Arlington, Virginia to re-evaluate the applicant’s conditions as determined by a PEB conducted at Walter Reed Army Medical Center, Washington D.C,
on 4 January 2011, which is not contained in the available records.  The PEB determined that the applicant was entitled to a 10% disability rating for arthritis, degenerative (listed as bilateral shoulder pain) and 10% for arthritis, degenerative (listed as bilateral shoulder pain and degenerative joint disease of the left shoulder.  The PEB opined that he was not entitled to compensation for cervical intervertebral disc bulges/herniation, degenerative disc disease and pain (listed as chronic neck pain, multiple level; cervical intervertebral disc bulges/herniation and degenerative disc disease) because there was only a record of one visit to medical facilities on 10 July 1996 and his separation physical made no mention of the condition.  The PEB determined that service-connection had not been established and that the condition was not ratable.  The PEB determined that the applicant was unfit and recommended that he be given a combined disability rating of 20% and separated with severance pay.  There is no indication of the applicant’s response to the PEB findings and recommendations in the available records.

5.  U.S. Army Physical Disability Orders D343-09, dated 9 December 2011, show the applicant was honorably discharged from the USAR with a 20% disability rating and disability severance pay, effective 13 January 2012. 

6.  In the processing of this case a staff advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) which opines, in effect, that the PEB’s determination at the time was correct based on the available evidence; however, based on the additional evidence provided by the applicant it appears the applicant’s cervical condition did originate during a period of active duty and should be compensable.  The USAPDA further opined that his condition of cervical intervertebral disc bulges/herniation (5243) should be rated as 20% unfitting and that the applicant should receive a 40% combined disability rating and permanent disability retirement.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.

7.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states disability compensation is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides for Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings.

9.  Title 38, U. S. Code, Pensions, Bonuses, and Veteran’s Relief, Chapter 1, Department of Veterans Affairs, Part 4-Schedule for Rating Disabilities, provides, in effect, that when the forward cervical flexion causes pain at 30 degrees forward flexion the condition is rated at 20% under VASRD code 5243. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted and found to have merit.  The available evidence suggests that the applicant was not properly evaluated regarding his cervical condition due to a lack of evidence in the records that was made available to the PEB at the time of its evaluation.

2.  Therefore, given the opinion of the USAPDA after a re-evaluation of the applicant’s case, it appears it would be in the interest of justice to void his          13 January 2012 discharge by reason of disability with severance pay and show he was retired by reason of permanent disability with a 40% disability rating effective 13 January 2012, with entitlement to all back retired pay that flow from that change.

3.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

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:

   a.  voiding Orders D343-09, dated 9 December 2011, showing he was discharged by reason of disability with severance pay and a 20% disability rating, effective 13 January 2012;

   b.  issuing him new orders, effective 13 January 2012, showing he was retired due to permanent disability with a 40% disability rating; and

   c.  paying him all back retired pay flows from that change.




      _______ _   _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)                                         AR20120015742



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ABCMR Record of Proceedings (cont)                                         AR20120015742



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