IN THE CASE OF:	   

		BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20140017035 


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 his separation for disability with severance pay be changed to a physical disability retirement.

2.  The applicant states, in effect:

* he feels, when he was medically discharged on 17 January 1998, the disability rating he received from the Army was low and his conditions were not fully diagnosed
* he was discharged after serving 16 years when other service members were being offered 15 year retirements
* through the years, his medical conditions have just gotten worse
* when he received a 10 percent disability rating, the rating was too low and his condition had not been fully diagnosed 
* he feels he should have been placed on the Temporary Disability Retired List (TDRL) with subsequent placement on the Permanent Disability Retired List
* he currently has a 90 percent disability rating from the Department of Veterans Affairs (VA) 
* his medical conditions prevented him from fulfilling his military duties and reaching full retirement

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings) with eleven pages of associated documents
* DA Form 2173 (Statement of Medical Examination and Duty Status) with four pages of associated documents
* Standard Form (SF) 88 (Report of Medical Examination), undated, showing results of a medical evaluation board/separation physical examination
* clinical notes, undated, by the Chief, Neurosurgical Services, Wright-Patterson Air Force Base
* DA Form 1506 (Statement of Service - For Computation of Service for Pay Purposes)
* letter, dated 17 November 1997, addressed to the applicant from VA with four pages of associated documents
* VA Compensation and Pension (C&P) Examinations, dated January 1998, for general medical, hearing, and psychiatric
* VA Rating Decision, dated 28 January 1998 (letter to applicant dated 3 February 1998), showing a 20 percent disability rating for mechanical low back pain and 10 percent for mood disorder due to mechanical back pain; combined rating of 30 percent
* VA Rating Decision, dated 9 August 2008, showing no change for the disability rating for mechanical low back pain and an increase from 10 percent to 30 percent for mood disorder due to mechanical back pain
* VA Rating Decision, dated 19 November 2009, showing an increase in disability rating for mechanical low back pain from 20 percent to 40 percent, and an increase from 30 percent to 70 percent for mood disorder due to mechanical back pain; additionally the applicant is shown as entitled to individual unemployability
* letter from VA, dated 4 November 2013, informing the applicant he is rated at 90 percent disability and is paid at the 100 percent rate for individual unemployability
* a listing of the applicant's medications, printed 10 September 2014
* two front pages of DA Forms 2166-7 (Noncommissioned Officer (NCO) Evaluation Report)
* one DA Form 1059 (Service School Academic Evaluation Report)
* 190 pages of extracted military medical records dating from 1979 to 1991
* 168 pages of extracted military medical records dating from 1993 to 1997
* 177 pages of VA medical records and Progress Notes with associated documents from the applicant's VA medical file ranging in dates from 2007 to 2013
* 70 pages of miscellaneous documents associated with VA claims



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.  Having prior service in the U.S. Marine Corps, the applicant enlisted in the U.S. Army Reserve (USAR) on 17 September 1993 at the rank/grade of sergeant/E-5.

3.  The applicant applied and was accepted for Active Guard Reserve (AGR) status as a Retention NCO.  He was ordered to active duty in November 1993 for a period of 3 years; this period was later extended to 6 years.

4.  On 11 November 1996, the applicant hurt his back while attempting to catch his father-in-law as he fell.  On 9 September 1997, this injury was determined to have been in the line of duty.

5.  As a result of this injury, he was given a physical profile of a permanent level 3 (P3) (equates to significant limitation) for "U" (upper extremities) and "L" (lower extremities).  The identified medical condition was mechanical low back pain.  He was referred to a medical evaluation board (MEB).

	a.  The narrative summary (NARSUM) prepared by the MEB physician essentially noted:

* the applicant had a 9-month history of mechanical back pain which was not resolved by conservative treatment
* examination did not reveal any spinal deformity
* his forward flexion was "to the knees only" (emphasis added, no readings showing the degree of forward flexion were provided)
* x-rays were unremarkable, as was a magnetic resonance imaging (MRI) scan that was done
* a bone scan indicated the possibility of an inflammation of the T12 vertebra, but the corresponding computed tomography (CT) scan showed no destruction of bone
* his strength is 5 out of 5 but he continued to complain of pain in the upper and lower back

	b.  A psychiatric addendum addressed the applicant's behavioral health.

* the applicant had been referred for evaluation as part of the MEB process
* he showed depressive symptoms which were seen as typical for patients suffering from spinal injuries
* the diagnosis was mood disorder due to mechanical back pain with mixed depressive and anxious features

	c.  On 11 October 1997, the MEB found his chronic mechanical back pain with associated mood disorder failed medical retention standards.  His case was referred to a PEB for a fitness determination.

6.  On 27 October 1997, a PEB found the applicant to be unfit for continued military service.  The PEB recommended a disability rating of 10 percent and separation with severance pay.  The Veterans Administration Schedule for Rating Disabilities (VASRD (used by VA as part of the process for adjudicating disability claims and determining ratings)) diagnostic code applied was 5299-5295 and the disability description was mechanical low back pain with associated depression.  The applicant concurred with the PEB's findings on 6 November 1997 and waived his right to a formal hearing.

7.  The applicant was honorably discharged on 17 January 1998.

	a.  His DD Form 214 shows he completed 4 years and 6 months of net active  service for that period, with 12 years and 28 days of prior active service and 
2 years, 5 months, and 24 days of inactive service.

	b.  The separation authority was Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) (separation for physical disability with severance pay).

	c.  The narrative reason for separation was shown as disability, severance pay.  Item 18 (Remarks) indicated the amount of severance pay was $50,328.

8.  In an advisory opinion, dated 11 June 2015, as supplemented by a memorandum dated 7 July 2015, the U.S. Army Physical Disability Agency (USAPDA) recommended denial of the applicant's request, essentially stating:

   a.  The MEB listed two diagnoses:  mechanical back pain and mood disorder due to back pain.  The examination was completed by a physician, and reviewed and approved by two other physicians.  The physical examination revealed very little in the way of physical findings to support his complaint of back pain.
   
* no specific range of motion (ROM) readings were given; but it was noted the applicant could touch his knees
* the applicant indicated he had some pain on the left with a straight leg raise; he had full strength with normal reflexes and no atrophy was noted
* plain film (x-ray), bone scan, MRI, and CT showed no significant abnormalities
* his mental health examination revealed mood disorder as a result of frustration and pain associated with his back; he was anxious and uncertain about his future

   b.  The applicant's physical profile only listed physical restrictions based upon his back pain.  Additionally, the commander's statement only mentioned the applicant's back pain being a hindrance to the applicant's ability to perform his assigned military duties.

	c.  On 15 October 1997, the applicant concurred with the results of the MEB and offered no contrary evidence.

	d.  Medical records completed within the same timeframe revealed two other occasions in which forward back flexion ROMs were entered.  Neither report shows how the ROM readings were taken, or whether the readings were performed in accordance with the standard criteria of three separate ROM measurements in each plane of ROM.  Additionally, there was no indication as to whether a goniometer (an instrument used for measuring angles and ROM) was used.

	e.  In 1997, ROM was not part of the VA's rating criteria and, thus, was not normally documented with the clarity now seen.  The VASRD changed in 2003 with regard to the use of ROM in the rating criteria for back conditions.

	f.  In the applicant's case, there was no documented evidence of back spasms (one of the criteria for a rating higher than 10 percent).

	g.  The informal PEB found the applicant unfit for his back condition, with associated depression, giving him a disability rating of 10 percent analogous to VASRD diagnostic code 5295 (lumbosacral strain).

* in the 1997 version of the VASRD, a 10 percent rating was for "characteristic pain on motion"
* ratings were not provided for ROM limitations at the time the applicant was separated
* to receive a higher rating the examination would have had to document "muscle spasm(s) on extreme forward bending, loss of lateral spine motion unilateral, in standing position" 
* at the time of separation, the applicant did not have the additional physical findings to support a higher rating

   h.  The PEB did not find the mood disorder separately unfitting.  A review of the entire case supports that the mood disorder would not have been found to be independently unfitting.  This is because neither the applicant's command, nor his physical profile, indicated he was unable to perform his military duties as a result of the mood disorder.  The mere presence of an impairment does not, of itself, justify a finding of unfitness (as noted in Army Regulation 635-40, in effect at the time).

	i.  The applicant received a VA examination on 5 January 1998 and was separated on 17 January 1998.  The rating which resulted from that examination awarded the applicant 20 percent for his back and 10 percent for his mood disorder.

* the mild rating of the mood disorder supports the PEB's finding that the mood disorder had little to no effect on the applicant's normal military duties prior to his discharge
* even if the PEB had given the applicant a rating of 10 percent for his mood disorder, that rating, when combined with the 10 percent rating for his back, would have only been 20 percent, the result of which would have meant no change to his benefits, compensation, or level of disability
* the VA examination noted a limitation of lumbar motion and thus gave a rating of 20 percent for a moderate limitation of motion
* even if the PEB had increased the rating to 20 percent, a rating of less than 30 percent would not have changed his outcome
* placement on the TDRL and/or permanent disability retirement requires a disability rating of 30 percent or higher

   j.  The fact the applicant's disabilities have gotten worse over the last 17 years is not a basis for correcting his military disability records.  The PEB properly rated the applicant's conditions in accordance with the standards and criteria in effect at the time.  Additionally, the PEB's findings were supported by the preponderance of evidence, were not arbitrary or capricious, and did not violate statute, directives, or regulations.

9.  The applicant was provided a copy of the advisory opinion for review and comment.  He did not respond in the time allotted.

10.  The applicant provides:

	a.  An undated SF 88 (Report of Medical Examination), showing results of a separation physical examination conducted at Fort Knox, KY by a physician assistant.  While the date of examination is not given, it does contain a handwritten note referring to a C&P examination dated 5 January 1998.  It records a forward flexion reading of 10 degrees with pain.

	b.  Clinical notes, undated, by the Chief, Neurosurgical Services, Wright-Patterson Air Force Base which note a forward flexion of 20 degrees.  Although undated, the report refers to an MRI date January 1997.

	c.  General Medical C&P Examination, dated 5 January 1998, with a forward flexion reading of 50 percent.

	d.  Psychiatric C&P Examination, date 8 January 1998, which included the following findings:

* the applicant showed no behavioral problems, anger, irritability, or hostility
* he described his mood as depressed
* there was no evidence of suicidal or homicidal thoughts
* he did not appear to have any kind of cognitive impairment; there was no evidence of impaired impulse control; memory and concentration were good
* he was diagnosed with mood disorder secondary to a general medical condition (mechanical back pain)
* his Global Assessment of Functioning (GAF) indicated mild to moderate symptoms of having difficulty in social, occupational, or other functioning
* he was being given anti-depressant medication and participated in group and individual therapy

	e.  A VA Rating Decision, dated 3 February 1998, which was based on C&P examinations conducted while the applicant was still on active duty in January 1998.  It states the applicant was awarded the following disability ratings:

* 20 percent disability rating for his mechanical back pain
* mood disorder, as a separate condition, received a disability rating of 10 percent

11.  Army Regulation 635-40, in effect at the time, establishes the Army PDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  Chapter 3 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

	b.  The TDRL is used in the nature of a "pending list."  Soldiers are placed on the TDRL, for a period of no more than 5 years, when they have been found to be:

* unfit for continued military service
* are eligible for permanent disability retirement as a result of a disability rating of 30 percent or more, or have 20 years of active military service
* their conditions are considered to either be temporary or instable in nature

	c.  The VASRD will be used to determine the disability rating percentage assigned to a condition.

12.  Army Regulation 40-501 (Standards of Medical Fitness) provides medical retention standards and is used by MEBs to determine which medical conditions will be referred to a PEB.  Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40.  The PEB will make the determination of fitness or unfitness.

	a.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his/her duties; may compromise or aggravate the Soldier's health or well-being if the Soldier were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual Soldier were to remain in the military service.

	b.  Chapter 7 provides guidance for the physical profile serial system  The profile is based on the function of body systems and their relation to military duties.  There are six factors, designated as:

* "P" for physical capacity or stamina
* "U" for upper extremities
* "L" for lower extremities
* "H" for hearing
* "E" for eyes
* "S" for psychiatric

	c.  Each factor is assigned a numerical designation from 1 to 4.

* "1" represents a high level of medical fitness
* "2" means there are some activity limitations
* "3" equates to significant limitation
* "4" indicates defects of such severity military duty performance is -drastically limited

	d.  The DA Form 3349 is used to record both permanent and temporary profiles.  A profile with a permanent 3 rating for any category requires approval by a physician designated by the military treatment facility commander.  All permanent 3 or 4 profiles are reviewed by a MEB physician or physician approval authority (emphasis added).

13.  Department of Defense Instruction (DoDI) Number 1332.39 (Application of the VASRD), in effect at the time, implemented Department of Defense policy requiring the Secretaries of the Military Departments (to include the Army) to apply the VASRD in the evaluation of disabilities within the physical disability evaluation system.  It stated, in pertinent part, once a Service member was determined to be physically unfit for further military service, the VASRD percentages were to be applied to the unfitting conditions.

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.

	a.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.

	b.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge to compensate the individual for loss of civilian employability.

	c.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

	d.  The VASRD contains a Combined Ratings Table which shows how individual disability ratings are combined for a total disability percentage.  When a condition with a rating of 40 percent, for example, is combined with one at 10 percent, the result is shown in the table as 46.  The VASRD further states when a combined rating results in a number of less than 4, it will be rounded down (i.e. 44 percent become 40 percent), where a number of 5 or more is rounded up (i.e. 46 percent becomes 50 percent).

DISCUSSION AND CONCLUSIONS:

1.  The applicant asserts he incorrectly received a disability rating of 10 percent and severance pay.  Instead of severance pay, he contends he should have been placed on the TDRL and ultimately awarded a permanent disability retirement.  In support of his contention, he asserts he has received VA disability ratings which show his medical conditions have gotten progressively worse over time.  

2.  In an advisory opinion, the USAPDA recommended disapproval of the applicant's request, noting:

* while the applicant's medical records indicate limitations in his ROM, and although current VA criteria for rating back conditions includes the measurement of ROM, ROM was not among the VASRD criteria for rating back conditions in 1997
* his complaints of back pain were not supported by other medical evidence, such as plain film (x-ray), bone scan, MRI, and CT scan
* the available medical evidence showed the applicant's mood disorder resulted from and was associated with his back condition
* the fact the applicant's disabilities have gotten worse over the last 17 years is not a basis for correcting his military disability records
* the preponderance of evidence supports the rating provided by the PEB

3.  Based upon the foregoing, there is 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 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)                                         AR20140017035





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ABCMR Record of Proceedings (cont)                                         AR20140017035



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