BOARD DATE:	  24 April 2014

		DOCKET NUMBER:  AR20130014357 


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 the Army Board for Correction of Military Records (ABCMR) direct a Formal Physical Evaluation Board (FPEB) be convened at Fort Belvoir, VA, to hear his case and, prior to the FPEB, he be assigned legal counsel to help him appeal his case.

2.  The applicant states:

	a.  Orders D342-17 are in error/unjust in regard to the statement "Percentage of disability:  20 percent (%)" and "Disability resulted from a combat-related injury as defined in Title 26 U.S. Code (USC) 104:  No."  His disability rating does not reflect the nature or extent of his disabilities as presented in his record.  Five of his disabilities and three of his unfitting disabilities are combat-related as defined in 26 USC 104.  He was unjustly denied an FPEB hearing to plead these matters.

	b.  His medically unacceptable disability is referred to as cauda equina syndrome (CES).  Medical authorities agree it is a rare condition, occurring in only a small portion of the military population and even less frequently in the population as a whole.  As such, CES is little understood and no specific Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code for it exists.  CES is the association of several clinically recognizable features and has a number of debilitating effects.  This requires the rating specialist to "build up" an analogous code with the last two digits as "99" to facilitate a close check of new and unlisted conditions and determine a rating for each disability.  In his case, analogous codes were utilized without the "99" identifier.
	c.  The Informal PEB (IPEB) was very specific with regard to the evidence of radiculopathy.  His sciatic nerve paralysis rated under VASRD code 8520 was rated bilaterally and in equal measure (mild pain).  This analysis finds support in the examination where saddle anesthesia and chronic pain radiating down both legs are repeatedly documented.  However, it does not recognize the additional discrete effects found in only the right leg.  Page 8 of the examination showed both the knee and ankle jerk were absent in the left but present in the right leg.  Page 10 noted decreased pin pricks over the lateral calf of right leg and absence of deep tendon reflex in the right Achilles.  Page 12 summarized numbness in right leg in "S-1 dermatomal distribution."  The rating treated the legs as equally impaired when they are not.

	d.  Paralysis is one of the chief effects of CES and failure to find all analogous disabilities attributable to it is inaccurate.  One possible resolution would be to recognize moderate paralysis in the right leg as compared to mild in the left leg.  Alternatively, it might be more accurate to maintain the equal bilateral paralysis of the sciatic nerve under VASRD code 8520 and attribute the further disabilities of the right leg to a code(s) corresponding to the specific nerves implicated (i.e., code 8523 - mild paralysis of the deep peroneal).  In either case, he is amenable to further examination if necessary.

	e.  The cumulative effect of the right leg's disability was also found on the examination.  While his gait was normal when unencumbered and for short distances during an examination, he experiences instability and falls under work conditions caused by the unequal capabilities of his two legs.  Flare-ups of radiating pain are also precipitated by the motions necessitated by the disparity in his two legs.  As yet, these instances have not caused a loss of employment but that is due to over accommodation by his current employer (emphasis added).  However, his employment contract expires in September 2013 and a future employer might not be as accommodating.  

   f.  His family life has also been affected.  He is unable to perform simple household chores that are beyond his budget to hire help for.  They have small children and he is often unable to care for them or hold them as he would like to.  He lives his life in a state of constant vigilance against re-injury that affects his happiness and quality of life.
   
   g.  His DA Form 199 (IPEB Proceedings) characterized his disabilities 1-3 as unfitting but not combat-related.  It stated "Soldier states approximate onset of condition he experienced acute back pain in June 2001.  On 23 August 2001, he states he jumped from a truck and landed awkwardly."  This analysis failed to consider the context of the injury as required by Department of Defense Instruction (DODI) 1332.38 which guides implementation of combat-related and includes injuries attributable to the special dangers associated with armed conflict or the preparation of training for armed conflict (emphasis added).  
   
   h.  The three disabilities were incurred during the Special Forces Detachment Officer Qualification Course, Fort Bragg, NC.  The training was hazardous service due to the performance of parachute duty and many other activities over the course of 6 months which had a cumulative effect.  As the medical record indicated, there were several episodes of back pain during this grueling period.  The injury culminated during the final phase of training and an extended field exercise that is considered one of the Army's most concerted efforts to conduct training under conditions simulating war (emphasis added).
   
   i.  On 23 August 2001, as part of the training, he was taken by hostile insurgents, bound and blindfolded, driven miles in the back of an open truck, jostled, and compelled to jump off the truck where he landed awkwardly.  This was not an example of a clumsy and unrelated "slip and fall accident" but one in a chain during the training under conditions simulating war.  When considered in this context, the disabilities are clearly combat-related in accordance with DODI 1332.38.
   
   j.  His limited motion of the right ankle rated under VASRD code 5271 and anterior scar on his right ankle rated under VASRD code 7804 were incurred as the result of a broken leg suffered during Air Assault School, Fort Campbell, KY.  He was rappelling from a 32-foot tower and his leg got caught underneath him, twisting and breaking the bones near his right ankle.  This falls squarely within definition of hazardous duty in DODI 1332.38.
   
   k.  He disagreed with the Medical Evaluation Board (MEB) findings and recommendation and offered a general disagreement.  One diagnosis was determined to be medically unacceptable and he concurred with it.  However, the 16 diagnoses in section 13 (Diagnosis) of DA Form 3947 (MEB Proceedings) which relied on the VA examination gave no indication of how the data would be interpreted in defining and rating the disabilities derived from those diagnoses.  He did not specifically contest any of the methods or findings contained in the VA examination or the Narrative Summary (NARSUM) because he believes they are accurate.  If the findings were correctly interpreted they would produce an appropriate rating.  He does not have a neurologist familiar with his case and felt seeking an independent medical review would not improve the quality of the data.  He was advised by the MEB legal counsel his best course was to register a general disagreement.
   
   l.  He believes in one case the IPEB, relying on accurate medical diagnoses from the examination, incorrectly assigned the VASRD code and disability rating.  Additionally, several disabilities were not accurately identified as combat-related.  He requested an FPEB and VA reconsideration to address these deficiencies and requested to appear in person.  He elected the assistance of regularly appointed counsel whom he hoped would assist him in preparing the appeal.  He did not include his written appeal as allowed under Section IX (Soldier's Election) of the DA Form 199 because he had not yet been afforded the benefit of counsel and submission of a written appeal would have allowed the FPEB to dispose of his case without the personal appearance he specifically requested (emphasis added).
   
   m.  On 15 November 2012, he was informed by the lead PEB Liaison Officer (PEBLO), Fort Belvoir, that his requests were denied without notice.  The justification given was that he did not present any attachments to his request.  This denial violated his right to due process in three ways.  First, it stands in direct contradiction to the permissible elections on the DA Form 199.  Second, it denied him effective access to counsel by demanding presentation of arguments, law, and fact before granting access to assigned counsel.  Finally, it ignored the FPEB "de novo" review requiring no new material submission at all.
   
   n.  Therefore, he requests the ABCMR remand his case to the PEB, Fort Belvoir and direct an FPEB after assigning him counsel to help him prepare his appeal.

3.  The applicant provides:

* two letters, one undated and one dated 21 May 2013
* VA Rating Decision, dated 10 May 2013
* two orders, dated 7 December 2012 and 5 February 2013
* Integrated Disability Evaluation System (IDES) Abbreviated NARSUM, undated
* DA Form 199, dated 2 July 2012
* VA DES Proposed Rating, dated 7 June 2012
* memorandum, dated 10 May 2012
* DA Form 3947, dated 9 April 2012
* three-page In Patient Report, dated 18 September 2001
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 12 August 2001
* Optional Form 275 (Medical Record Report), dated 20 December 1990

CONSIDERATION OF EVIDENCE:

1.  Having had prior Reserve enlisted service and commissioned service in the Regular Army, the applicant was commissioned a Reserve captain in the Army National Guard (ARNG) on 6 May 1997.  He was honorably released from the ARNG on 9 January 2003 and he transferred to the U.S. Army Reserve (USAR).  He served in staff and leadership positions and he was promoted to the rank/grade of lieutenant colonel (LTC)/O-5 in the USAR on 16 December 2008.

2.  His records contain the results of a Periodic Health Assessment (PHA), dated 9 December 2009, wherein he was found to be physically fit for retention.

3.  On 6 August 2010, he was notified by the U.S. Army Human Resources Command (HRC) that a review of his medical records revealed he did not meet retentions standards in the USAR for a chronic back condition.  He was given the option to elect:

* discharge from the USAR
* transfer to the Retired Reserve, if eligible
* consideration by an Non-Duty Related (NDR) PEB, limited to fitness determination
* consideration by an MEB, limited to conditions/injuries that occurred/were aggravated while on active duty orders

4.  This notification stated if he elected to undergo an NDR PEB or MEB, he was responsible for assembling copies of all documents for the board to consider and for any professional or administrative fees involved.  He subsequently elected consideration by an MEB.

5.  On 27 October 2011, HRC issued him a 20-year letter.  This letter notified him he had completed the required years of service and he would be eligible for retired pay upon application at age 60.  He was subsequently transferred to the Retired Reserve.

6.  On 7 February 2012, the applicant filed a VA/DOD Joint Disability Evaluation claim and on 27 February 2012, he was issued a notice of all the evidence needed to support his claim. 

7.  He underwent a Compensation and Pension (C&P) general medical examination at the VA or by its contracted physicians on 8, 10, and 13 March 2012.  

8.  On 9 April 2012, an MEB convened at Fort Belvoir and diagnosed him with the unfitting condition of "history of CES s/p L5-S1 laminectomy and discectomy with spinal stenosis and residual S-1 radiculopathy."  The MEB also found 15 other medical conditions did meet retention standards and were medically acceptable (emphasis added).  The MEB recommended referral to an IPEB.
9.  On 25 April 2012, after being counseled as to the findings and recommendations of the MEB and his rights and options, he disagreed with the MEB findings and recommendations and attached a statement that stated "I do not agree with the board's findings and recommendations."

10.  On 7 June 2012, under the IDES rating, the VA submitted a "Disability Evaluation System Proposed Rating."  The VA proposed a combined 20% rating for his unfitting disabilities as follows:

	a.  Unfitting disability of left lumbar radiculopathy (also referred as history of CES s/p L5-S1 laminectomy and discectomy with spinal stenosis and residual   S-1 radiculopathy and also claimed as bilateral leg weakness) the VA proposed a 10% rating.

   b.  Unfitting disability of right lumbar radiculopathy (also referred as history of CES s/p L5-S1 laminectomy and discectomy with spinal stenosis and residual   S-1 radiculopathy) the VA proposed a 10% rating.

   c.  Unfitting disability of CES s/p L5-S1 laminectomy and right S1 foramotomy with residual sleep difficulties (also referred as history of CES s/p L5-S1 laminectomy and discectomy with spinal stenosis and residual) the VA proposed a 0% rating.  

   d.  For his service-connected medical conditions, the VA proposed the following ratings:  

* slight limited motion, right ankle, 10%
* tinnitus, 10%
* chronic prostatitis with sexual dysfunctions and hyposensitization of the glans penis, 10%
* scar, right anterior ankle, 10%
* degenerative joint disease (DJD) of right hand, 0%
* cervical strain, 0%
* scars, right medial ankle, mild lower back, and right distal palmar middle finger and right distal palmar index finger, 0%
* onychomoycoisis toenails, left 1, 3, and 5, 0%
* onychomoycoisis toenails, right 1, 4, and 5, 0%

   e.  The following conditions were not rated and determined not to be related to his military service: 

* rheumatoid arthritis, multiple joints, cracking of joints, evidence did not show a current diagnosed disability 
* bilateral vision conditions, condition was considered a congenital or developmental defect, unrelated to military service and not aggravated by it
* bilateral hearing loss, evidence did not show a current diagnosed disability
* dental, gum condition, evidence did not show a current diagnosed disability

11.  On 2 July 2012, his case was adjudicated as part of the IDES under the     19 December 2011 Policy and Procedure Directive-Type Memorandum (DTM) 11-015.  His IPEB shows his unfitting disabilities were rated as follows:

* left lumbar radiculopathy (listed as history of CES s/p L5-S1 laminectomy and discectomy with spinal stenosis and residual S-1 radiculopathy) under VASRD code 8520 and assigned a 10% disability rating
* right lumbar radiculopathy (listed as history of CES s/p LS-S1 laminectomy and discectomy with spinal stenosis and residual S-1 radiculopathy) under VASRD code 8520 and assigned a 10% disability rating
* CES s/p L5-S1 laminectomy and right S1 foramotomy with residual sleep difficulties (listed as history of CES s/p L5-S1 laminectomy and discectomy with spinal stenosis and residual S-1 radiculopathy) under VASRD codes 5237 and 5243 and assigned a 0% disability rating

12.  The IPEB found the unfitting disabilities were incurred or aggravated in the line of duty but were not based on disease/injury incurred in the line of duty in combat or caused by an instrumentality of war and incurred during a period of war.  The board found he was not physically fit and recommended he be retired based on permanent disability with a combined disability rating of 20%. 

13.  Section IV (Medical Conditions Determined Not to Be Unfitting) of the DA Form 199 stated, in part, [other disabilities listed by the MEB] the MEB determined that they meet medical retention standards; they are not listed on the physical profile as limiting any of the Soldier's functional activities; they are not commented upon by the commander as hindering his performance of assigned duties; continued service does not put the Soldier's health at risk from them; and the conditions individually or in combination with his other conditions does [sic] not put an undue burden on the military to protect the Soldier in performance of their [sic] duties (emphasis added).

14.  Section V (Administrative Determinations) stated the IPEB made the following findings:
	a.  The disability disposition was not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war (5 USC 8332, 3502, and 6303).  (This determination is made for all compensable cases but pertains to potential benefits for retirees employed under Federal Civil Service.)

	b.  Evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or Reserve thereof, or the NOAA or the USPHS on 24 September 1975.

	c.  The disability did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10218.

	d.  The disability severance pay was not awarded for disability incurred in a combat  zone or incurred while performing combat-related operations as designated by the Secretary of Defense (10 USC 1212).

15.  On 9 August 2012, after being counseled as to the findings and recommendations of the IPEB and his rights and options, he checked the blocks of Section IX of the DA Form 199 to indicate he did not concur and demanded an FPEB hearing, his written appeal was not attached, and he requested a personal appearance and a regularly appointed counsel.

16.  He also checked the block to indicate he requested VA reconsider his disability rating.  This block also stated "My written request for VA reconsideration is attached.  I understand VA will only reconsider ratings if new medical evidence is received or I am able to provide sufficient justification to warrant reconsideration (emphasis added).  I also understand this is a one-time request for reconsideration of the ratings(s)…for the conditions the PEB determined to be unfitting.  I also understand that counsel is available to represent me with my request for VA reconsideration and if I request a formal hearing, my request for reconsideration of my VA rating will be processed after the formal hearing is conducted" (emphasis added).

17.  The available records do not contain any evidence that shows the applicant subsequently pursued his request for an FPEB hearing by submitting new medical evidence to support his appeal of the IPEB findings and recommendations within the allotted timeframe.

18.  On 26 November 2012, the IPEB proceedings were approved. 

19.  Orders D342-17, dated 7 December 2012, issued by the U.S. Army Physical Disability Agency (USAPDA), released him from assignment and duty because of physical disability that permitted his retirement for permanent physical disability and placed him on the Retired List effective 11 January 2013 in the rank of LTC with a 20% disability rating. 

20.  The applicant provides a letter from the VA, dated 13 March 2013, wherein it stated:

	a.  The following conditions were determined to be related to his military service and effective 24 February 2012 service-connected and he had been granted a combined disability rating of 40% as follows for:

* left lumbar radiculopathy, 10% 
* right lumbar radiculopathy, 10% 
* CES s/p L5-S1 laminectomy and right S1 foramotomy with residual sleep difficulties, 0%
* slight limited motion, right ankle, 0%
* tinnitus, 10%
* scar, right anterior ankle, 10%
* chronic prostatitis with sexual dysfunction and hyposensitization of the glans penis, 0% 
* scar, right medial ankle, mild lower back and right distal palmar middle finger and right distal palmar index finger, 0% 

   b.  The following conditions were determined not to be related to his military service: 

* rheumatoid arthritis, multiple joints, cracking of joints, evidence did not show a current diagnosed disability 
* DJD of right hand, evidence did not show an event, disease or injury in service
* cervical strain, evidence did not show an event, disease or injury in service
* bilateral vision condition, considered a congenital or developmental defect, unrelated to military service and not aggravated by it
* bilateral hearing loss, evidence did not show audiometric findings that met the criteria for a grant of service-connected
* onychomoycoisis toenails, left 1, 3, and 5, evidence did not show an event, disease or injury in service 
* onychomoycoisis toenails, right 1, 4, and 5, evidence did not show an event, disease or injury in service
* dental, gum condition, evidence did not show a current diagnosed disability

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  It states, in part:

	a.  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 mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  

	b.  The PEB-appointed counsel advises the Soldier of the IPEB findings and recommendations and ensures the Soldier knows and understands their rights.  The Soldier records his or her election to the IPEB on the DA Form 199 and has 10 calendar days from the date of receiving the IPEB determination to make the election, submit a rebuttal, or he may request an extension.  If the Soldier non-concurs with the findings without submitting a rebuttal, the PEB will approve the proceedings for the Secretary of the Army (emphasis added).

22.  DTM 11-015 explains the IDES.  It states: 

	a.  The IDES is the joint DOD-VA process by which DOD determines whether wounded, ill, or injured service members are fit for continued military service and by which DOD and VA determine appropriate benefits for service members who are separated or retired for a service-connected disability.  The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments.  Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment.

	b.  Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures requirements promulgated in DODI 1332.18 and the Under Secretary of Defense for Personnel and Readiness memoranda.  All newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the service member due to special circumstances.  Service members whose cases were initiated under the legacy DES process will not enter the IDES.

	c.  IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA C&P standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. 

	d.  Upon separation from military service for medical disability and consistent with BCMR procedures of the Military Department concerned, the former service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition.  For example, a veteran appeals VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process.  If VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the service member may request correction of his or her military records through his or her respective Military Department BCMR.

	e.  If, after separation from service and attaining veteran status, the former service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends an FPEB should be convened at Fort Belvoir to hear his case and he should be assigned legal counsel prior to the FPEB to help him appeal his case.

2.  The evidence of record confirms that on 9 April 2012 an MEB convened at Fort Belvoir and diagnosed him with the unfitting condition of history of CES s/p L5-S1 laminectomy and discectomy with spinal stenosis and residual S-1 radiculopathy.  The MEB also found that 15 other medical conditions did meet retention standards and were medically acceptable.  The MEB recommended his referral to an IPEB.  Although he indicated he did not agree with the MEB findings and recommendations, he did not provide a rebuttal to the MEB.
3.  His case was processed under the IDES.  This means he underwent a C&P examination by the VA and upon completion, the VA proposed a disability rating for the unfitting conditions to the military department and a proposed disability rating for other service-connected disabling conditions to the member, if applicable.  Only unfitting conditions as they are at that time are considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  

4.  The VA proposed a combined rating of 20%.  The IPEB accepted and adopted this rating for his left lumbar radiculopathy under VASRD code 8520, 10%; right lumbar radiculopathy under VASRD code 8520, 10%; and his CES s/p L5-S1 laminectomy and right S1 foramotomy with residual sleep difficulties under VASRD codes 5237 and 5243, 0%.  The board recommended he be placed on the permanent disability Retired List with a 20% disability rating.  On 11 January 2013, he was placed on Retired List in the rank of LTC with a 20% disability rating. 

5.  On 9 August 2012, the applicant, a senior officer, was counseled as to his rights and options and, although he checked the blocks to indicate he did not concur and requested a formal hearing and VA reconsideration, the evidence of record does not show, and the applicant himself stated, he did not provide any new evidence to support his requests.  In addition, he was informed that counsel was available to represent him if he requested an FPEB hearing.  

6.  The IPEB proceedings were approved on 26 November 2012, well over 3 months after he was counseled on his rights and options which was sufficient time for him to submit a rebuttal and provide new evidence to warrant referral to an FPEB.  As he did not do so, he effectively gave up his right to have his case heard by an FPEB.  

7.  Furthermore, notwithstanding his contention that his unfitting conditions resulted from a combat-related injury, the evidence of record clearly shows the IPEB determined that his disabilities did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10218.  In the absent of conclusive evidence to the contrary, it is presumed what the Army did in his case was correct and there was insufficient evidence in his records that supported his contention. 

8.  His integrated disability evaluation was conducted in accordance with law and regulations and there does not appear to be an error or an injustice in his case.  He has not submitted substantiating evidence or an argument that would show an error or injustice occurred.  In addition, the 21 May 2013 VA letter he provided confirms the disability ratings he was subsequently granted by the VA were consistent with the ratings approved by the IPEB for his unfitting conditions. 

9.  In view of the foregoing, there is an 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)                                         AR20130014357





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ABCMR Record of Proceedings (cont)                                         AR20130014357



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