IN THE CASE OF:	  

		BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140008431 


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, a review of his physical evaluation board (PEB) disability processing.  

2.  The applicant states:

	a.  On 13 October 2013, he received a letter from Fort Gordon stating that he was being removed from the temporary disability retired list (TDRL) and placed on permanent retirement.  At the time of signing the paper, he was going through a deep state of depression.  He had been evaluated at Fort Gordon two weeks prior to receiving this letter, and during his evaluation he was told that the injuries that he had did constitute him being released from active duty.  He tried to explain to the physician assistant (PA) that he had other issues besides his left ankle, back, and left hip.  However, the PA dismissed what he was saying and went on to wrap up the evaluation.  The numbness to his arms was never discussed or evaluated although this issue had been documented in 2009 and has gotten worse over the last 5 years.  He has lost 2 jobs because of his injuries which all occurred during his duties in the Army.

	b.  His records as it stands are incorrect, because all of his service-connected injuries are not recognized.  Actions that he had done while in combat under enemy fire have been recognized.  His mental diagnosis has been resolved.  It keeps changing.  He has placed documentation in his packet that shows the several improvised explosive device (IED) attacks he directly survived.  He is not certain if that has anything to do with his mental state of mind.  What he knows for certain is that he is not the same person, mentally or physically, who joined the military.

	c.  He strongly believes that if he could get a conclusive answer as to what is actually going on with him, then he could begin to get his life back together.  The error is due to his unconventional injuries.  His injuries are not visible from the outside but they are nonetheless real, and have caused major and dramatic life changes for his family and himself.  He loves the Army and he is proud that he served our country.  He has never left a fallen comrade behind and he is praying that the Army will not leave him and his family behind.  He is at the end of his rope and he is putting his pride aside and asking for help.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Permanent Order 057-01, Army Good Conduct Medal
* Diploma, Basic Noncommissioned Officer Course
* Two certificates of achievement
* U.S. Cavalry Trooper Certificate
* Army Physical Fitness Test Scorecard
* DA Form 638 (Recommendation for Award)
* DA Form 2823 (Sworn Statement)
* Enlisted Record Brief
* Letter of Congratulation
* Request for Special Duty Assignment
* Diploma for SERE High Risk 
* Certificate of completion of the Primary Leadership Development Course
* Certificate of completion of the Special Forces Qualification Evaluation and Selection 
* Radiological Consultation, dated 27 February 2014
* Magnetic Resonance Imaging (MRI) Report, dated 1 June 2009
* Statement in Support of Claim (Department of Veterans Affairs) 
* Medical Statement
* DA Form 199 Physical Evaluation Board ((PEB) Proceedings) 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 16 July 2002 and he held military occupational specialty (MOS) 13B (Cannon Crewmember).  He served in Iraq from March 2003 to March 2004 and Afghanistan from January 2007 to April 2008. 

2.  On 22 May 2009, he was seen at Womack Army Medical Center for the chief complaint of left ankle pain, left hip pain, knee pain, back pain, and depression.  He underwent a thorough medical evaluation that resulted in findings of certain conditions not meeting retention standards.  According to his Narrative Summary: 

	a.  He had a history of low back pain, left hip pain, bilateral knee pain, and left ankle pain beginning or exacerbated in 2006 (back, hip, and knees) and 2007 (left ankle).  His back, hip, knee (in conjunction with treatment for the left ankle pain), and ankle pain has persisted despite conservative therapy and he continues to experience Behavioral Health problems secondary to the effects of his Major Depression caused by his physical complaints and his work environment.  He can no longer perform the duties of his MOS or the duties of a Soldier secondary to the above conditions.  There are no indications for surgical intervention at this time.  

	b.  He states that he cannot do the duties of his MOS because they involve a lot of lifting and carrying heavy objects, prolonged standing, and repetitive bending and kneeling which he states he can no longer do secondary to his back, hip, knee, and ankle pain.  Also, he states that he cannot ruck-march or wear IBA because it increases the pain in his back, left hip, bilateral knees, and left ankle.  He continues to have difficulties from his symptoms of depression.  His mood disorder is sufficient to adversely impact his capacity to perform the duties of his MOS.  This would place him and others at risk in a combat environment.  He can do the activities of daily living.  However, he will have difficulty in obtaining and maintaining outside employment which would require more than light duty.  He has had difficulties in doing activities such as doing yard work and lifting/carrying heavy objects.  His diagnosis was as follows: 

* Chronic Left Ankle Pain, status post sprain, medically disqualifying in accordance with Army Regulation 40-501 (Standards of Medical Fitness)
* Chronic Low Back Pain, secondary to degenerative disc disease, medically disqualifying 
* Chronic Left Hip, secondary to degenerative joint disease, medically disqualifying
* Chronic Bilateral Knee Pain, secondary to degenerative joint disease, medically disqualifying
* Major Depression Disorder, single episode, moderate, medically disqualifying
* Cubital Tunnel Syndrome, mild to moderate, right upper extremity, not medically disqualifying.
* Carpal Tunnel Syndrome, mild, right upper extremity, not medically disqualifying
	c.  His prognosis concerning each medical issue is as follows: 

		(1)  Chronic Left Ankle Pain:  Due to the chronic nature of degenerative joint disease which tends to worsen over time it is determined that this condition will persist for at least the next five years and could possible worsen with increase physical activity.

		(2)  Chronic Low Back Pain: Concerning the Chronic Left Ankle Pain:  Due to the chronic nature of degenerative disc disease which tends to worsen over time it is determined that this condition will persist for at least the next five years and could possible worsen with increase physical activity.

		(3)  Chronic Left Hip: Concerning the Chronic Left Ankle Pain: Due to the chronic nature of degenerative joint disease which tends to worsen over time it is determined that this condition will persist for at least the next five years and could possible worsen with increase physical activity.

		(4)  Chronic Bilateral Knee Pain: Concerning the Chronic Left Ankle Pain: Due to the chronic nature of degenerative joint disease which tends to worsen over time it is determined that this condition will persist for at least the next 5 years and could possible worsen with increase physical activity.

		(5)  Major Depression Disorder: Because he has been symptomatic for over one year, and even with treatment, his symptoms have not fully remitted and his prognosis is "fair" to "guarded" for improvement over the next five years.

	d.  He fails to meet retention criteria in accordance with Army Regulation 40-501.  He should be referred to a PEB for further adjudication and requires the duty limitations specified on the attached DA Form 3349 (Physical Profile). 

3.  On 27 August 2009, a medical evaluation board (MEB) convened and, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the below conditions and recommended his referral to a PEB.  

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Chronic Left Ankle pain, status post sprain

X
2.  Chronic Low Back Pain, secondary to degenerative disc disease

X
3.  Chronic Left Hip, secondary to degenerative joint disease

X
4.  Chronic Bilateral Knee Pain, secondary to degenerative joint disease, 

X
5.  Major Depression Disorder, single episode, moderate,

X
6.  Cubital Tunnel Syndrome, mild to moderate, right upper extremity
X

7.  Carpal Tunnel Syndrome, mild, right upper extremity
X

4.  On 10 September 2009, after having been counseled, the applicant indicated he reviewed the contents of the MEB and agreed it completely covered all his medical conditions.  He authenticated this form with his signature.  He acknowledged:

* he reviewed the contents of the MEB, physical profile, and narrative summary; he understood the PEB would only consider the conditions listed on his physical profile
* the physical profile included all his conditions and whether or not they meet retention standards; the conditions that did not meet retention standards were properly listed
* he provided all medical documents in his possession to be included in the MEB; he agreed that the MEB accurately covered his medical conditions at the time

5.  On 21 July 2011, an informal PEB convened and found his conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to below conditions. 

	a.  The PEB rated the applicant's medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD) as follows:

VASRD Code
Condition
Percentage
9434
Major Depressive Disorder
50 percent
5099/5003
Arthritis, Degenerative (left ankle pain)
10 percent
5099/5003
Arthritis, Degenerative (low back pain)
10 percent
5251
Thigh, limitation (left hip pain)
10 percent
	b.  The PEB also considered his other medical condition of bilateral knee pain due to degenerative joint disease but did not find it unfitting.  It also reviewed the two other conditions that did not fail retention standards (cubital tunnel syndrome, mild to moderate, right upper extremity and carpal tunnel syndrome, mild, right upper extremity) but found those conditions not to be unfitting and therefore not ratable.  
	c.  The PEB recommended a 60 percent combined disability rating and placement on the TDRL with future reexamination. 

	d.  Throughout the disability process, he was counseled by a PEB Liaison Officer (PEBLO) and informed of his rights at each step of the process.  His counseling culminated on 4 November 2009 when he was counseled by a PEBLO regarding his medical conditions, the findings of the MEB, the PEB process, and his rights under the law.  Subsequent to this counseling, the applicant concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

6.  On 3 February 2010, he retired from active duty by reason of temporary disability and on 4 February 2010, he was placed on the TDRL in his retired rank/grade of staff sergeant (SSG)/E-6, under the provisions Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4. The DD Form 214 he was issued shows he completed 7 years, 6 months, and 18 days of active service. 

7.  On 17 July 2013, he underwent a TDRL examination that determined he still failed retention standards for the same conditions.  The examining doctor referred his case to a PEB for adjudication of his case.  

8.  On 26 September 2013, a TDRL PEB convened and found the applicant's condition had not improved to the extent that he was considered fit for duty and he remained unfit.  His current condition was sufficiently stable from a disability prospective for final adjudication.  

	a.  The PEB rated his medically-unacceptable conditions under the VASRD as follows:

VASRD Code
Condition
Percentage
9434
Major Depressive Disorder
30 percent
5242
Lumbar Degenerative Arthritis (low back)
20 percent
5099/5003
Left Ankle Degenerative Arthritis 
10 percent
5099/5003
Left Hip Degenerative Joint Disease
10 percent
	b.  The TDRL PEB recommended a 60 percent combined disability rating and permanent retirement.  After having been advised of the findings and recommendations of the TDRL PEB and after receiving a full explanation of the results of the findings, on 8 October 2013 he concurred with the TDRL PEB's finding and recommendation and waived his right to a formal hearing.
9.  On 16 October 2013, the U.S. Army Physical Disability Agency published Orders D289-11 removing him from the TDRL effective 16 October 2013 and permanently retiring him at the rate of 60 percent in the rank/grade of SSG/E-6. 

10.  He provides: 

	a.  Multiple awards, decorations, certificates, and diplomas. 

	b.  Radiological consultation, dated 17 march 2014.  It shows he underwent   x-rays on 27 February 2014 for ankle, hip, and spine.

	c.  MRI report, dated 1 June 2009, regarding multiple ailments including numbness of the right hand.  This report was part of his Narrative Summary. 

	d.  Medical statement, dated 4 December 2008, regarding (then) untreated ankle fracture. 

11.  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 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.

12.  Army Regulation 635-40 states the mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

13.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained various injuries and/or illnesses that warranted his entry in the PDES.  He underwent an MEB which recommended his referral to a PEB.  The PEB found those medical conditions that failed retention standards (depressive disorder, left ankle, low back, and left hip) prevented him from reasonably performing the duties required of his grade and military specialty.  He was determined to be physically unfit for further military service.

2.  The PEB also considered his other medical conditions despite their having been determined to have met retention standards and found those other conditions to be not unfitting and therefore not ratable.  The PEB rated his disabilities at 60 percent and recommended his placement on the TDRL.  He was counseled and agreed with the findings and recommendations and waived his right to a formal hearing.

3.  He underwent a TDRL examination that recommended his referral to a TDRL PEB for adjudication.  A TDRL PEB convened and found he remained unfit and his current condition was sufficiently stable from a disability prospective for final adjudication.  The TDRL PEB rated his unfitting conditions (depressive disorder, low back, left ankle, and left hip) at a combined 60 percent disability rating and recommended his permanent retirement.  He was again counseled and concurred. 

4.  He contends that the numbness to his arms was never discussed or evaluated although this issue had been documented in 2009 and has gotten worse over the last 5 years.  

	a.  During his MEB examination in July 2009, he was diagnosed with cubital tunnel syndrome (mild to moderate) of the right upper extremity and carpal tunnel syndrome (mild) of the right upper extremity but neither condition failed retention standards or was found medically disqualifying.  In his Narrative Summary he noted that he could not perform his duties due to his lower extremities conditions and his depression.  He made no comment that upper extremities condition prevented him from performing his duties.  He then underwent a TDRL examination in July 2013 and nothing was found in relation to his arms.  

	b.  He does not provide medical evidence to support a diagnosis of any other condition that failed retention standards and/or was unfitting at the time of his separation.  
5.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation.  The applicant was properly rated 60 percent disabled for his conditions.  There is no evidence to support rating any other medical condition.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated him 60 percent disabled for his conditions.  

6.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  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 his case.  In view of the circumstances in this case, there is insufficient evidence to grant the 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)                                         AR20140008431





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ABCMR Record of Proceedings (cont)                                         AR20140008431



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