IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130002769 


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 records to show he was medically retired instead of honorably discharged with entitlement to severance pay.

2.  The applicant states:

* his condition was reviewed by three doctors and his rating was recommended at 40 percent (%)
* he was recommended for disability retirement but when his orders came back, he was separated with severance pay instead
* the Board should review his disability processing

3.  The applicant provides his February 1996 DA Form 199 (Physical Evaluation Board (PEB) Proceedings).

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 11 May 1984 and he held military occupational specialty 27E (TOW Dragon Repairer).  He served through multiple reenlistments in a variety of stateside assignments, including Germany, and he attained the rank/grade of sergeant (SGT)/E-5. 

3.  On 9 June 1995, he complained of mid-back pain.  His narrative summary shows the following:

	a.  He slipped and fell while playing soccer in July 1994.  He was evaluated and diagnosed as having mid-thoracic spine compression fracture at T3 and T6.  He was treated with conservative measures and profiling but his symptoms continued.  He experienced decreased ability to sit for long periods of time, doing sit-ups, and running.  He was evaluated by Orthopedic Surgery on 14 March 1995 and it was the impression that his bony vertebral fractures were stable and healed.  He suffered from chronic pain, status post mid-vertebral compression fracture.

	b.  He was referred to physical medicine for a work-hardening program as a conservative trial to allow him to return to duty.  His cardiovascular fitness level improved; however, his capacity to tolerate pain did not improve.  He had to be brought from the field to the emergency room in one instance due to severe mid- back pain.  He was issued a permanent profile which upgraded a previously-issued profile for his knee.  

	c.  His physical examination revealed normal neurology but tender to palpation in the mid-T spine region.  There was no evidence of atrophy.  Straight leg raise was negative.  There was no shoulder or iliac wing asymmetry on stance.  His gait was normal with no antalgia.  There was no evidence of leg length asymmetry and there was no evidence of atrophy.  X-rays revealed evidence of a healed compression fracture.  His final diagnosis was: 

* Mild sensorimotor polyneuropathy involving the distal lower extremities, unknown etiology
* Chronic mid-back pain status post compression fracture of T3 and T6, now healed
* Degenerative joint disease right knee
* Mild bilateral focal ulnar neuropathies across the elbows
* Mild right carpal tunnel syndrome
* Essential hypertension
* Hypertriglyceridemia
* Chronic eczema of the right foot digit number 2

4.  On 7 August 1995, a medical evaluation board (MEB) convened, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the conditions of:

Condition
Date of origin
Incurred while entitled to basic pay
Permanently Aggravated by service
1.  Chronic mid-back pain status post compression fracture of T3 and T6, now healed
1994
Yes
Yes
2.  Degenerative joint disease, right knee
1989
Yes
Yes
3.  Mild bilateral focal ulnar neuropathies across the elbows
1994
Yes
No
4.  Mild right carpal tunnel syndrome
1994
Yes
No
5.  Mild sensorimotor polyneuropathy involving the distal lower extremities, unknown etiology
1994
Yes
No
6.  Chronic eczema of the right foot digit number 2
1994
Yes
No
7.  Essential hypertension
1994
Yes
No
8.  Hypertriglyceridemia
1995
Yes
No
The MEB recommended his referral to a PEB.  On 7 August 1995, he was counseled and agreed with the MEB's findings and recommendation.  He indicated he did not desire to continue on active duty.

5.  On 28 August 1995, an informal PEB convened and found the applicant's conditions prevented him from performing the duties required of his grade and military specialty.  The PEB determined he was physically unfit and rated his conditions under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) as follows:

VASRD Code(s)
Condition
Rating
5299/5295
Chronic mid-back pain status post compression fracture of T3 and T6, now healed
10%
5257/5003
Degenerative joint disease, right knee
10%
The PEB also considered his other conditions, listed on his MEB as diagnoses 3 through 8, but found these conditions not to be unfitting and therefore not ratable. The PEB recommended the applicant be separated with entitlement to severance pay if otherwise qualified.  Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of his rights.  On 5 September 1995, he elected not to concur and demanded a formal hearing of his case.  

6.  On 27 September 1995, he submitted a waiver of the formal PEB hearing that had been scheduled for 21 November 1995.  He indicated that he would accept the 20% disability rating that had been offered to him.  

7.  On 27 November 1995, he indicated that after further consideration, he wished to request a formal PEB hearing with personal appearance and counsel of his choice. 

8.  On 7 February 1996, a formal PEB convened with the applicant and his counsel present.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and military specialty.  The PEB determined he was physically unfit and rated his conditions under the VASRD as follows:

VASRD Code(s)
Condition
Rating
5295
Chronic mid-back pain status post compression fracture of T3 and T6, now healed
20%
5257/5003
Degenerative joint disease, right knee
20%
8524/8716
Mild bilateral focal ulnar neuropathies across the elbows
0%
The PEB also considered his other conditions, listed on his MEB as diagnoses 4 through 8, but found these conditions not to be unfitting and therefore not ratable.  The PEB recommended the applicant be permanently retired by reason of disability.  He was counseled by a PEBLO and informed of his rights.  On 7 February 1996, he concurred.  

9.  On 7 March 1996, the U.S. Army Physical Disability Agency (USAPDA) reviewed his PEB and modified the findings, rating, and disposition, in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-22c(3).  A DA Form 18 (Revised PEB Proceedings) shows the following rating: 

VASRD Code(s)
Condition
Rating
5295
Chronic mid-back pain status post compression fracture of T3 and T6, now healed
10%
5257/5003
Degenerative joint disease, right knee
10%
8524/8716
Mild bilateral focal ulnar neuropathies across the elbows
0%
The Revised PEB noted that based on a review of the evidence of record, the USAPDA concluded that his medical condition revealed no visible or palpable abnormalities of the back, no muscular atrophy, no spasms, and lower extremities show no atrophy.  Therefore, the USAPDA changed his disposition to separation with severance pay at 20%.  He did not agree.  

10.  On 2 April 1996, he submitted an appeal through his counsel.  Counsel argued that:

	a.  A rating of 30% should be assigned in cases where a knee brace is prescribed for a functional (as opposed to a protective) basis.  The applicant's records show he wore the prescribed knee brace for functional support due to lateral instability resulting from cartridge removal and severe tri-compartment degenerative joint disease of the right knee. 

	b.  The applicant suffered from compression fractures of T3 and T6 vertebrae in his back with chronic pain and spasm.  As a result, his back showed a flexion of 60 degrees, rotation to the left and right to 45 degrees, and abduction to the left and right to 35 degrees.  These maneuvers produce severe pain and palpation of this region produces severe pain. 

	c.  The applicant also suffered from hypertension, essential hypertriglyceridemia, right carpal tunnel syndrome, bilateral focal ulnar neuropathies across the elbows, mild left and severe right distal tibial neuropathies polyneuropathy, and mild bilateral sural neuropathies.  

11.  On 29 May 1996, the U.S. Army Physical Disability Appeal Board (APDAB) convened to consider the applicant's case.  After a careful review of all available information, the APDAB voted to affirm the decision of the PEB in finding the applicant unfit with a combined disability rating of 20% and that he should be separated with entitlement to severance pay.  The ADPAB also determined he received a full and a fair hearing and the evaluation proceedings conformed to current laws and regulations.  

12.  On 2 July 1996, a review of the applicant's disability separation was conducted at the Headquarters, Department of the Army (HQDA) level.  By message, HQDA ordered his separation by reason of disability, in the grade of SGT/E-5 with a 20% rating.  

13.  On 7 October 1996, the applicant was honorably discharged under the provisions Army Regulation 635-40, paragraph 4-24b(3), due to disability, severance pay.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 12 years, 4 months, and
27 days of creditable active service and he received severance pay in the amount of $39,621.60.

14.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition that 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.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0% to 100%, rising in increments of 10%.

16.  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%.

17.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.  


* VASRD Code 5295 (Lumbosacral strain) allowed a 10% rating for a strain with characteristic pain on motion and 20% for pain with muscle spasm on extrement forward bending, loss of lateral spine motion, unilateral - in standing position
* VASRD Code 5257 (Knee, other impairment of) allowed a 10% rating for slight recurrent subluxation or lateral instability; 20% for moderate; and 30% for severe
* VASRD 5003 (arthritis, degenerative) allowed a 10% rating for degenerative arthritis which in the absence of limitation of motion, with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 

DISCUSSION AND CONCLUSIONS:

1.  The applicant complained of mid-back pain after having suffered an injury while playing soccer that warranted his entrance into the PDES.  He underwent an MEB which recommended his referral to a PEB.  The PEB found his medical conditions prevented him from reasonably performing the duties required of his grade and military specialty. 

2.  The PEB determined he was physically unfit for further military service, rated him for chronic mid back pain status post compression fracture of T3 and T6, now healed, at 10%, and degenerative joint disease of right knee, also at 10%.  The PEB awarded a 20% combined rating and recommended separation with entitlement to severance pay.  The applicant did not concur.  

3.  A formal PEB considered his conditions of chronic mid-back pain status post compression fracture of T3 and T6, now healed, at 20%; degenerative joint disease of right knee, also at 20%; and added the condition of mild bilateral focal ulnar neuropathies across the elbows, at 0%.  The PEB awarded a 40% combined rating and recommended permanent retirement.  The applicant concurred. 

4.  The USAPDA reviewed his rating as required by Army Regulation 635-40 and revised the rating.  The revised PEB noted that based on a review of the evidence of record, USAPDA officials concluded that his medical condition revealed no visible or palpable abnormalities of the back, no muscular atrophy, no spasms, and lower extremities show no atrophy.  Therefore, the USAPDA changed his disposition to separation with severance pay at 20%.  He did not agree.  


5.  He submitted an appeal through his counsel.  The APDAB considered his appeal and after a careful review of all available information, the APDAB voted to affirm the decision of the PEB in finding the applicant unfit with a combined disability rating of 20% and that he should be separated with entitlement to severance pay.  The ADPAB also determined he received a full and a fair hearing and the evaluation proceedings conformed to current laws and regulations. 

6.  The applicant's chief complaint had been pain.  The available medical evidence revealed no visible or palpable abnormalities of the back, no muscular atrophy, no spasms, and his lower extremities showed no atrophy.  His stance and gait were normal and the lower extremity activity produced only mild pain.  

7.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant was properly rated at 10% for his chronic mid-back pain status post compression fracture and at 10% for his degenerative joint disease of right knee.  He does not provide any evidence to support a higher rating.  

8.  The applicant's physical disability evaluation was conducted in accordance with law and regulations.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  In view of foregoing, there is insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130002769





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ABCMR Record of Proceedings (cont)                                         AR20130002769



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