IN THE CASE OF:	  

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20130020093 


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, addition of the following medical conditions to his unfitting conditions and an increase in his disability rating:

* wrist
* upper back
* neck
* shoulders
* sciatica

2.  The applicant states, in effect:

	a.  He requests ratings for unfitting conditions that were not rated and injuries not evaluated at the time of his separation.  These conditions/injuries include, but are not limited to, his wrist, upper back, neck, and shoulder areas.  Also, any condition, including sciatica, if such a condition warrants or should have warranted a separate rating.  Further, any condition for which he sought aid while in the service should have been evaluated; subsequent diagnosis of a condition should be considered as evidence for correction.

	b.  There are several reasons he believes the record to be in error and unjust.  The rating "lumped" together injuries that should have been separated.  The record does not reflect injuries he suffered while in the service, despite evidence he sought treatment, in his medical files.  Complaints of pain (upper back, neck, shoulders, etc.) were dismissed as sympathetic reaction associated with the lower back injury; evidence of injuries confirmed only after he convinced a Department of Veterans Affairs (VA) doctor to order a magnetic resonance imaging of these areas (1 year after his lower back surgery in May 2008).  Before separation he was never given a complete physical evaluation to identify and address the conditions.

	c.  He received misinformation during the medical evaluation board (MEB) process.  He was not given adequate representation, nor was the extent of his injuries properly evaluated.  The conditions evaluated at the time of separation were rated inaccurately and improperly lumped together.  Guided by misinformation and a lack of knowledge that avenues existed for him to correct the issues and fear of losing the benefits offered, he failed to pursue the matters further.

	d.  He had a claim pending with the Physical Disability Board of Review (PDBR).  They rejected part of his claim and informed him to file for correction with this Board.

	e.  During the MEB process the representative informed him separation was his only option – because of all his conditions and the severity, he would be medically retired with a rating of 50 percent.  Instead, he was rated as only 
20-percent disabled.  He was medically discharged and warned not to challenge the rating or risk losing the 20 percent.  He signed a waiver of VA examination while still enlisted and therefore no subsequent medical evaluations occurred until much later.

	f.  Some 18 months or more after separation, he was again given a 
20-percent rating based on records and no VA examination.  Though he never received notice of an appointment, the VA representative stated he had no grounds for appeal of the decision because he failed to report.  There was no admission of any wrongdoing on the part of the VA for failing to notify him; instead, the responsibility was placed on him with no recourse.

	g.  Some years later he filed a claim with the VA and his rating was increased to 50 percent, retroactive only to the claim filing date.

	h.  Conditions stemming from his service were denied by the VA for lack of "diagnosed or identifiable underlying malady or condition" in his MEB discharge rating.  In spite of his complaints, both in the Army and after separation, insufficient examinations were made to find the source of pains he experienced.  Only years later were his complaints investigated and conditions identified.

	i.  Even before his lower back conditions were fully diagnosed, he had been erroneously told his complaints of pain in his upper back, neck, and shoulders were merely sympathetic extensions of the lower back conditions.  Yet the pain continued after his lower back operation in May 2008.  Were these underlying conditions improperly diagnosed?  He and his primary care physician believe they were.  The pain was in fact not related to the lower back, but rather a symptom of other, separate injuries which should have been noted prior to his discharge.

	j.  His activities remain limited.  Debilitating pain can last days from just modest exertion.  Never really pain free, the level does subside and generally he can manage, provided it is with a minimal level of effort.  Consequently, he opted to take a lower paying position because his previous office job required regular bending and lifting which aggravated his conditions.  Even so, chronic pain negatively impacts his ability to perform suitably.

3.  The applicant provides 16 documents outlined on the last page of his statement.

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 24 February 2000 for a period of 6 years.  He completed his training and was awarded military occupational specialty 67U (CH-47 helicopter repairer).

3.  He provided service medical records, dated 2000 to 2002, which show he was treated for:

* left wrist pain – no injury noted
* low back pain
* neck pain
* shoulder pain

4.  On 20 September 2002, an MEB diagnosed him with low back pain with radiculopathy, herniated disk at L4/5 and L5/S1.  The MEB recommended his referral to a physical evaluation board (PEB).  The applicant agreed with the findings and recommendations of the MEB.

5.  On 30 September 2002, a PEB found him physically unfit due to low back pain with clinical assessment of L4/L5 and L5/S1 herniated nucleus pulposus with radiculopathy.  The PEB recommended a combined 20-percent disability rating and separation with severance pay.  On 16 October 2002, he concurred with the PEB findings and waived his right to a formal hearing.

6.  On 17 October 2002, the U.S. Army Physical Disability Agency approved the PEB's findings.

7.  On 24 January 2003, he was honorably discharged by reason of disability with severance pay.

8.  He provided VA documentation, dated June 2007, which shows he was granted service connection for the following conditions with an overall or combined rating of 50 percent:

* sciatica, left lower extremity (also claimed as nerve damage) – 10 percent
* herniated nucleus pulposus, L4-5 and L5-S1 – 40 percent
* De Quervain's tenosynovitis, nondominant left wrist – 10 percent

9.  On 18 June 2013, the PDBR reviewed the applicant's disability rating accompanying his medical separation.  The PDBR found his separation disability rating and his separation from the Army with severance pay to be accurate and recommended no recharacterization of his separation or modification of the disability rating previously assigned.  On 22 August 20013, the Acting Deputy Assistant Secretary of the Army for Army Review Boards accepted the PDBR'S recommendation and denied the applicant's request.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that after establishing the fact that a Soldier is unfit because of physical disability and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting compensable disability.  Percentage ratings reflect the severity of the Soldier's medical condition at the time of the rating.

11.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several lines of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

12.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

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 rating of at least 30 percent.

14.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the addition of wrist, upper back, neck, shoulders, and sciatica to his unfitting conditions.

2.  His MEB did not list wrist, upper back, neck, shoulders, or sciatica as medical conditions/defects.  There is no evidence to show he was issued a physical profile for these conditions.  He provides no evidence to show these conditions rendered him unfit to perform his military duties.  Therefore, there is insufficient evidence on which to find that these conditions were unfitting.

3.  The evidence shows the PEB found him physically unfit due to low back pain with clinical assessment of L4/L5 and L5/S1 herniated nucleus pulposus with radiculopathy.

5.  The evidence shows the applicant concurred with the PEB findings and recommendation on 16 October 2002.

6.  There is insufficient evidence to show his unfitting conditions were improperly rated by the PEB in 2002.  Therefore, there is no basis for granting the applicant's request to increase his disability rating.

7.  His contention that he was rated as 50-percent disabled by the VA was noted.  However, the rating action by the VA does not demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.

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 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)                                         AR20130020093



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ABCMR Record of Proceedings (cont)                                         AR20130020093



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