IN THE CASE OF:	   

		BOARD DATE:	  4 February 2015

		DOCKET NUMBER:  AR20140008778 


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 record to show he received a 40 percent (%) disability rating and was retired for permanent disability.  He also requests, in effect, correction of his record to show an injury to his right shoulder was caused by an instrumentality of war under conditions simulating war while engaged in hazardous duty.  

2.  He states he believes the Physical Evaluation Board (PEB) based its decision and rating of 20% on just one shoulder injury instead of injuries to both shoulders.  He feels his rating should have been 40%, which would have made him eligible for a medical retirement.  He also states the injury to his right shoulder was caused by an instrumentality of war under conditions simulating war while engaged in hazardous duty.  The injury was caused by a pallet while preparing for airborne operations in Panama.  

3.  He provides excerpts of his service medical records.  

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.  With prior service in the Regular Army (RA) and U.S. Army Reserve, on 24 July 1987, the applicant enlisted in the RA.  His records show he served in military occupational specialty (MOS) 93P (Flight Operations Coordinator) throughout his Army service.  

3.  On 31 March 1992, he was given a permanent rating of "3" for physical profile serial rating factor "U" (upper extremities) due to bilateral shoulder instability.  

4.  His records contain two DA Forms 2173 (Statement of Medical Examination and Duty Status), dated 3 June 1992, showing he was examined by medical personnel at Gorgas Army Community Hospital, Fort Clayton, Panama, following two injuries which were determined to have been in the line of duty.

	a.  On 21 January 1992, he was diagnosed with subluxation of his left shoulder.  The injury was incurred on 12 January 1992 while he was exercising in preparation for a physical fitness test.  

	b.  On 26 March 1992, he was diagnosed with muscle strain of his right upper arm.  The injury was incurred on 19 March 1992 while loading an Air Force pallet onto a truck.  The pallet dropped causing the full weight to be applied to his right shoulder.  

5.  A Medical Evaluation Board (MEB) Narrative Summary (NARSUM), dated 6 May 1992, shows he was found to have multi-directional instability of both shoulders.  He was not a surgical candidate because of the nature of the condition, and he was unable to perform minimal military requirements.  Attempts to modify his activities were done with a physical profile; however, an MOS/Medical Retention Board recommended referral to a PEB.  The MEB also recommended referral to a PEB, and the recommendation was approved.  

6.  A DA Form 199 (PEB Proceedings) shows a PEB convened on 17 June 1992 to consider the applicant's condition.  The PEB found him physically unfit based on his diagnosis of bilateral shoulder multi-instability patterns.  The PEB recommended a combined disability rating of 20% and separation with severance pay.  His condition was rated as analogous to degenerative arthritis (code 5003 in the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD)).  

7.  The PEB made the recommended findings that, if retired because of disability, his retirement would not be based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law.

8.  On 25 June 1992, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case.  

9.  On 11 August 1992, he was discharged for physical disability with severance pay.  

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  Separation or retirement by reason of disability requires processing through the PDES.  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.  To be permanently retired for physical disability, a Soldier's disabling condition must have been incurred or aggravated while entitled to basic pay and the condition must be rated as 30% disabling or more.

11.  The VASRD provides the guidelines for the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  It lists potentially disabling conditions and provides the criteria for assigning a rating to those conditions.  It states:

	a.  When a condition that has not been assigned a diagnostic code is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  

	b.  Code 5003 is used to designate a diagnosis of degenerative arthritis.  Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10% is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, rate as below:

* with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations rate at 20%
* With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups rate at 10%

12.  The VASRD does not list a diagnostic code for shoulder multi-instability patterns.  

13.  Department of Defense Instruction Number 1332.18, subject:  Disability Evaluation System, establishes policy, assigns responsibilities, and provides procedures for referral, evaluation, return to duty, separation, or retirement of Service members for disability.  It states, in part, that the PEB renders a final decision on whether an injury or disease that makes the Service member unfit or that contributes to unfitness was incurred in combat with an enemy of the United States, was the result of armed conflict, or was caused by an instrumentality of war during war.  It provides, in pertinent part, the definitions listed below:

	a.  While Engaged in Hazardous Service.  Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty.

	b.  Under Conditions Simulating War.  In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, and leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling; and negotiation of combat confidence and obstacle courses.  It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports.

	c.  Caused by an Instrumentality of War.  The criteria are met if a disability was incurred during any period of service as a result of wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material.  However, there must be a direct causal relationship between the instrumentality of war and the disability.  




DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for correction of his record to show he received a 40% disability rating and was retired for permanent disability.  

2.  The PEB rated his bilateral shoulder multi-instability patterns as analogous to degenerative arthritis under the VASRD diagnostic code 5003.  Under this diagnostic code, a 20% rating is appropriate with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations.  There is no evidence of error in the PEB's determination that his bilateral shoulder condition effectively met these criteria.  In the absence of evidence showing an error in the PEB's determination, there is no basis for correcting his record to show he received a higher disability rating.  

3.  He contends that the injury to his right shoulder was caused by an instrumentality of war under conditions simulating war while engaged in hazardous duty.  The injury to his right shoulder was caused by a falling pallet, which does not meet the criteria for any of the categories he has identified.  The evidence supports the PEB's finding that, if retired because of disability, his retirement would not be based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law.  

4.  In view of the foregoing, there is an insufficient basis upon which 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)                                         AR20140008778





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ABCMR Record of Proceedings (cont)                                         AR20140008778



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