IN THE CASE OF:	  

		BOARD DATE:	  23 July 2015

		DOCKET NUMBER:  AR20140017026 


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:

* hypertension with left ventricular hypertrophy
* sleep apnea
* post-traumatic stress disorder (PTSD)
* chronic fatigue syndrome
* bilateral knee chondromalacia
* bilateral shoulder disorders
* tinnitus
* bilateral carotid stenosis
* bilateral plantar fasciitis
* gastroesophageal reflux and irritable bowel syndrome
* migraines/headaches
* right and left radiculopathy associated with cervical spine degenerative disc disease (DDD)
* degenerative joint disease
* traumatic brain injury (TBI)

2.  The applicant states:

* he wants all of his other short-comings, injuries, and disabilities rated before his discharge
* everything wasn't reviewed and rated before his discharge

3.  The applicant provides:

* Department of Veterans Affairs (VA) Rating Decision
* DA Form 3349 (Physical Profile)
* letter to the physical evaluation board (PEB)
* service medical records
* VA 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.  The applicant enlisted in the Army National Guard (ARNG) on 17 February 1989.  He was promoted to the rank of sergeant effective 6 June 1994.  He was ordered to active duty on 11 February 2003 in support of Operation Enduring Freedom.  He served in Iraq from 15 to 28 August 2003.

3.  He provided a neuropsychological report, dated 24 November 2003, which shows he was diagnosed with status post-mild TBI.  The report states he sustained a mild TBI on 15 August 2003 while playing recreational flag football during deployment in Iraq.  His diagnostic impression was cognitive disorder (not otherwise specified) due to head trauma and concussion.

4.  He provided an orthopedics consult, dated 24 December 2003, wherein the health care provider stated the impression as rule out DDD with nerve root impingement, cervical/lumbar spine.

5.  He provided a DA Form 3349, dated 2 June 2004, which shows he was issued a permanent physical profile rating of 3 in the upper extremities factor for cervical spine DDD.

6.  On 13 July 2004, a medical evaluation board (MEB) diagnosed him with neck pain with cervical DDD and bilateral radiculopathy.  The MEB recommended his referral to a PEB.

7.  Item 30 (Continuation) of his DA Form 3947 (MEB Proceedings) states, "I CERTIFY THAT THIS MEDICAL BOARD ACCURATELY COVERS ALL OF MY MEDICAL CONDITIONS, THAT ALL HEALTH RECORDS PERTAINING TO MY CASE HAVE BEEN TURNED [IN] TO THE PROPER AUTHORITIES, AND THAT I HAVE BEEN COUNSELED IN ACCORDANCE WITH APPENDIX C-6, AR [ARMY REGULATION] 635-40."

8.  On 22 July 2004, he did not concur with the MEB findings and recommendation and submitted an appeal.  In summary, he stated he wanted the following conditions which were related to his injuries and for which he had been diagnosed with treated added to his DA Form 3947:

* mild TBI
* memory, attention, and mental processing impairment
* migrainosus/headaches treated with prednisone burst
* occipital neuralgia
* chronic multi-joint pain
* cervicalgia
* bilateral shoulder impingement
* cervical spondylosis
* anxiety and panic attacks treated with Ativan (lorazepam), Effexor (venlafaxine), and Robaxin (methocarbamol)
* atrophy of the trapezius muscle
* chronic lower back pain
* cervical spine nerve root impingement
* paracervical region muscle spasms
* lumbar spine nerve root impingement
* paralumbar region muscle spasms
* knees, ankles, and feet strains

9.  On 28 July 2004, his appeal was considered; however, the original MEB findings and recommendation were confirmed.

10.  He provided a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 29 July 2004, which states he was tackled on or about 15 August 2003 while playing flag football in Iraq, causing head, shoulder, and spine injuries resulting in diagnoses of paralumbar muscle spasm and chronic back pain.

11.  On 8 September 2004, a formal PEB found him physically unfit due to chronic neck pain due to cervical DDD without significant neurological abnormality, cervical range of motion limited by pain, tenderness to palpation.  The PEB recommended a 10-percent disability rating and separation with severance pay.  On 17 September 2004, he did not concur with the findings and recommendation of the PEB.

12.  On 16 October 2004, he was honorably discharged from active duty by reason of disability with severance pay.

13.  On 17 October 2004, he was further honorably discharged from the ARNG.

14.  He provided a VA Rating Decision, dated 14 February 2006, which shows he was granted service connection for:

* lumbar spine DDD (20 percent)
* right L5-S1 dermatome radiculopathy (10 percent)
* left L5-S1 dermatome radiculopathy (10 percent)
* hypertension with left ventricular hypertrophy (60 percent)
* bilateral carotid stenosis (0 percent)
* headaches

15.  He provided additional VA documentation, dated 15 July 2011, which shows he was granted service connection for:

* sleep apnea (50 percent)
* chronic fatigue syndrome associated with arthralgias (10 percent)
* gastroesophageal reflux and irritable bowel syndrome (10 percent)
* lumbar spine DDD (20 percent)
* right L5-S1 dermatome radiculopathy (10 percent)
* left L5-S1 dermatome radiculopathy (10 percent)
* bilateral carotid stenosis (0 percent)
* left ventricular hypertrophy (60 percent)

16.  His overall or combined VA disability rating is 100 percent.

17.  He also provided 439 pages of VA medical records, progress notes, radiology reports, and lab results.  These records show he was evaluated/treated for:

* neck pain
* lower back pain
* foot pain
* headaches
* sleep problems
* weight management
* high blood pressure
* high cholesterol

18.  The VA medical records also show his rated disabilities were:

* hypertensive heart disease
* sleep apnea syndromes
* PTSD
* intervertebral disc syndrome
* chronic fatigue syndrome
* paralysis of sciatic nerve
* tendon inflammation
* tinnitus
* paralysis of sciatic nerve
* paralysis of median nerve
* bursitis
* migraine headaches
* flat foot condition
* hiatal hernia
* cerebral arteriosclerosis

19.  In February 2014, the Physical Disability Board of Review (PDBR) reviewed the applicant's disability rating and recommended no recharacterization of separation or modification of the disability rating previously assigned.  The board's scope of review was limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the applicant.  Any conditions or contentions not requested in the application or otherwise outside the board's defined scope of review remained eligible for future consideration by the ABCMR.

20.  On 14 August 2014, the Deputy Assistant Secretary (Army Review Boards) accepted the PDBR's recommendation and denied the applicant's petition to the PDBR.

21.  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 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.

22.  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 or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

23.  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.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

24.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests addition of the following medical conditions to his unfitting conditions and an increase in his disability rating:

* hypertension with left ventricular hypertrophy
* sleep apnea
* PTSD
* chronic fatigue syndrome
* bilateral knee chondromalacia
* bilateral shoulder disorders
* tinnitus
* bilateral carotid stenosis
* bilateral plantar fasciitis
* gastroesophageal reflux and irritable bowel syndrome
* migrants/headaches
* right and left radiculopathy associated with cervical spine 
* degenerative joint disease
* TBI

2.  His MEB did not list these conditions as medical conditions/defects and he agreed that the MEB accurately listed all of his medical conditions.  He provided no evidence to show these conditions rendered him unfit to perform his military duties.  Therefore, there is insufficient evidence with which to add these medical conditions as unfitting conditions.

3.  The evidence shows a formal PEB found him physically unfit due to chronic neck pain due to cervical DDD without significant neurological abnormality, cervical range of motion limited by pain, tenderness to palpation.

4.  There is insufficient evidence to show his unfitting condition was improperly rated by the PEB in 2004.  In 2014, the PDBR recommended no modification of the disability rating previously assigned.  Therefore, there is no basis for granting the applicant's request to increase his disability rating.

5.  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)                                         AR20140017026



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ABCMR Record of Proceedings (cont)                                         AR20140017026



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