IN THE CASE OF:	  

		BOARD DATE:  12 February 2014

		DOCKET NUMBER:  AR20130003400 


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:

The applicant's requests, statements and supporting documents are submitted by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for retirement by reason of permanent disability by increasing the percentage of disability awarded to the applicant to at least 30 percent or more.

2.  Counsel states, in effect, he disagrees with the Board's previous decision that there was insufficient evidence to show the applicant's thoracolumbar spine condition was unfitting.  He states Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-39J, recognizes that nonradicular pain involving the lumbosacral spine which fails to respond to adequate conservative treatment and necessitates significant limitation of physical activity does not meet retention standards.  The applicant's clinical records, dated from 31 January to 22 February 2005, reflect that "lumbosacral spine motion was abnormal" and "lumbosacral spine exhibited tenderness upon palpation" and, finally, "lumbosacral spine pain was elicited by motion flexion.  Pain scale 4/10, moderate, pain scale comments – lower back."  Lumboscral problems were confirmed by magnetic resonance imaging and range of motion studies revealed forward flexion of 65 degrees and total motion in all six planes of 215 degrees which represents, per se, the applicant's failure to meet medical standards and should have been considered by the physical evaluation board (PEB).  He also states the PEB improperly applied the range of motion studies by suggesting that they merely demonstrate a "condition."  However, the unfitting nature of the condition was the severe limitation of range of motion and tenderness to palpation as the applicant was a parachute rigger who was required to be a current and qualified parachutist and meet physical fitness standards for retention.  However, the applicant's low back condition prevented him from wearing a Kevlar helmet or wearing a parachute harness or pack.

3.  Counsel provides a four-page brief explaining his arguments, exhibits I through V consisting of six pages of clinical records, and statements from the applicant and his spouse.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110015711 on 21 February 2012.

2.  After serving in the U.S. Army Reserve as a combat engineer, the applicant enlisted in the Regular Army on 7 November 1995 for a period of 3 years and training as a parachute rigger.  

3.  In his original case, counsel for the applicant contended the applicant hurt his back in a parachute jump in July 2000.  The only record is an October 2000 clinic note where the applicant reported injuring his back 3 months previously.  He complained of pain with twisting, was found to have tender paraspinous muscles, was diagnosed with muscle strain, and was treated with anti-inflammatory medication.  At that same appointment he was referred to an orthopedist for evaluation of his knee.  The orthopedist was not asked to evaluate his back.  There is no further clinic record of back pain until his medical evaluation board (MEB) process.

4.  He was promoted to pay grade E-6 on 1 September 2001.  He served in Afghanistan during the period 22 June-1 August 2004.

3.  On 10 March 2005 while stationed at Fort Benning, Georgia, a PEB found the applicant unfit for further service based on the condition of "left/non-dominant shoulder abduction limited to 80 degrees following surgery with chondromalacia capsular contracture and rotator cuff tendonitis."  The PEB rated the applicant's condition under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5201 and assigned a 20-percent disability rating.  The PEB recommended the applicant's separation with severance pay.  The applicant concurred with the findings and recommendations of the PEB on 22 March 2005 and waived his right to a formal hearing.

6.  On 30 May 2005, the applicant was honorably discharged by reason of disability with severance pay.  He completed 9 years, 8 months, and 2 days of active service.

7.  A review of his noncommissioned officer evaluation reports shows he received all "Success" or higher ratings.

8.  The letters provided by the applicant and his spouse indicate the applicant began experiencing problems with his back in 2004 and he attempted to soldier on without others knowing of the pain he was in because he did not want to display weakness in front of his troops.  His spouse explains the difficulties he experienced at the time.

9.  The medical documents provided with his application, dated from 21 January to 22 February 2005, primarily address his back pain issues and refer him to orthopedics.  The only clinical note where he reports injuring his back 3 months prior is in October 2000.  In October 2000, he complained of pain twisting, was found to have tender paraspinous muscles, was diagnosed with muscle strain, and was treated with anti-inflammatory medication.  At the same appointment he was referred to an orthopedist for evaluation of his knee.  The orthopedist was not asked to evaluate his back.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) provides that disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service was interrupted and who could no longer continue to reasonably perform their duties because of a physical disability incurred or aggravated in service.  If a question arose regarding a Soldier's ability to perform his or her duties because of a physical disability, the Soldier's commander, Department of the Army Headquarters, or the attending physician could refer the Soldier for medical evaluation (paragraphs 4-6, 4-7, and 4-8).  The medical treatment facility commander conducts a medical examination.  If it appears that the Soldier is not medically qualified to perform his or her assigned duties, the medical treatment facility commander will refer the Soldier to a medical evaluation board (MEB) in accordance with paragraph 4-9.  

11.  Army Regulation 635-40 further states these retention standards and guidelines should not be interpreted to mean that possessing one or more of the 


listed conditions or physical defects signifies automatic disability retirement or separation from the Army.  The fact that the Soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for Soldiers in a different office, grade, rank, or rating, does not justify a determination of physical unfitness.  The overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered.  The effect will be considered from both the standpoint of how the disabilities affect the Soldier's performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments.

12.  Army Regulation 635-40, paragraph 3-5, contains guidance for rating disabilities.  It provides that 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.  The percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  Under the provisions of Title 10, U.S. Code, chapter 61, these ratings are assigned from the VASRD.   VASRD code 5201 (limitation of arm motion) rating guidance states to rate limitation of motion at the shoulder level as 20-percent disabling.

13.  The VASRD 10-percent and 20-percent ratings under code 5003 (arthritis) will not be combined with limitation of motion ratings.  Rating guidelines prohibit issuing two ratings for the same disability, known as "pyramiding."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his back condition should have been considered by the PEB and he should have been medically retired by reason of permanent disability has been noted and still appears to lack merit.

2.  The applicant contends that he injured his back in a parachute jump in July 2000; however, the only clinical note where he reports injuring his back 3 months prior is in October 2000.  In October 2000, he complained of pain twisting, was found to have tender paraspinous muscles, was diagnosed with muscle strain, and was treated with anti-inflammatory medication.  At the same appointment he was referred to an orthopedist for evaluation of his knee.  The orthopedist was not asked to evaluate his back.



3.  There is no further clinical record of back pain until it is mentioned 5 years later during the MEB process; therefore, it is reasonable to presume that the applicant was able to perform the duties of his military occupational specialty during this 5-year interlude, especially since he received evaluation reports that give no indication otherwise.

4.  While there is evidence to show he had degenerative changes in his back that are common to aging and he had intermittent pain that responded to medication, there is insufficient evidence to suggest he had low back pain that was unfitting at the time of his discharge.  This is further supported by the fact that the applicant concurred with the findings of the PEB and does not mention low back pain as a diagnosis.

5.  The evidence of record and independent evidence submitted by the applicant and his counsel fail to show any error or injustice related to the applicant's processing through the Army's Physical Disability Evaluation System process.  As a result, there is an insufficient evidentiary basis to support correcting or amending the determinations made by the PEB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AR20110015711, dated 21 February 2012.

2.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to the United States 


during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _  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)                                         AR20130003400



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ABCMR Record of Proceedings (cont)                                         AR20130003400



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