IN THE CASE OF:	

		BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20140021336 


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 records to show the disability rating he received from the physical evaluation board (PEB) on 2 July 2009 included a 10 percent (%) disability rating for his right shoulder and, as a result, he was granted a total disability rating of 70% vice 60%. 

2.  The applicant states:

	a.  He was medically retired from active duty on 15 December 2009 for migraine headaches, cervical spondylosis of the C-spine (neck), degenerative joint disease (DJD) of the lumbar spine (lower back), left shoulder rotator cuff tendinopathy, and DJD of the left knee.  He currently has a disability rating of 60%.  However, injuries he sustained to his right shoulder were not included in his disability rating.  He requests his right shoulder condition be included and his rating corrected to 70%.

	b.  All of his injuries are a result of an incident that occurred during combat in Iraq on 7 August 2003.  He was injured during a 2-hour firefight after they were ambushed by insurgents.  They were rescuing three Soldiers from a burning high mobility multipurpose wheeled vehicle that was targeted during the ambush.  The driver was trapped in such a way that in order to free him from the burning vehicle he actually had to pull hard enough that both of the driver's legs below the knees were pulled off and left wedged in the door.  The driver was conscious and screaming the whole time.  He got the driver to the side of the street, stabilized him, and applied tourniquets to both legs while returning fire and evacuating him from the kill zone.

	c.  It turned out that during the evacuation, he did significant damage to both his shoulders, his upper neck, lower back, and left knee.  He ended up having to have four surgeries to repair the structural damage, but he still has bulging disks in his neck and back and still suffers from a great deal of physical pain, limited mobility, and migraine headaches.  Although the injuries occurred in August 2003, it was not until early 2007 that the extent of the structural damage was diagnosed.

	d.  In 2006, he was referred to a medical evaluation board (MEB) and underwent a formal PEB.  They recommended a finding of unfit with a rating of 0% because at that point the doctors could not find anything physically wrong with him; even though his left shoulder was frequently subluxing and it was termed “myofascial pain” (emphasis added).  He requested and was approved for continuation on active duty (COAD).

	e.  In June 2007, his left shoulder again came out of the socket.  During the evaluation, the orthopedic surgeon wanted to scope his shoulder, and the surgery finally revealed the full extent of the damage.  He went through intensive physical therapy but was still experiencing subluxations.  In February 2008, he had to have a second surgery on his left shoulder.  The recovery required that he immobilize his shoulder in a sling for almost 2 months and because of the extensive recovery time he was assigned to the Warrior Transition Brigade (WTB), Walter Reed Army Medical Center (WRAMC), Washington, DC, in March 2008.

	f.  Soon after he arrived at the WTB, it was determined that he needed to go through the MEB/PEB process again as there was definite confirmation that his conditions did have physical causes.  He was placed in the Disability Evaluation System (DES) Department of Defense/Department of Veterans Affairs (DOD/VA) Pilot Program to be processed for separation from the Army.  It was also determined he needed knee surgery and this was done in September 2008.  He continued to move through the MEB/PEB process and rehabilitate from his injuries.  After the knee surgery, he started to get more stability in his left shoulder and noticed he was having the same instability problems, loss of mobility, and pain in his right shoulder.  He started treatment for his right shoulder. 

	g.  The problem with his right shoulder is documented in the Narrative Summary (NARSUM), dated 22 January 2009.  At the time the NARSUM was prepared, the extent of the problems with his right shoulder had not been diagnosed.  He received the MEB proceedings in February 2009 and his right shoulder was not listed as a medical condition/defect on the DA Form 3947 (MEB Proceedings), dated 4 February 2009.  The DA Form 199 (PEB Proceedings), dated 25 March 2009, does not list his right shoulder either.

	h.  In April 2009, after unsuccessfully trying physical therapy (PT) to correct his right shoulder problems, it was determined he needed to have surgery and it was scheduled for 5 May 2009.  He asked how the new surgery would affect his PEB processing and was advised that in order to have the right shoulder listed on his DA Form 199 he would need to start the entire MEB/PEB process over.  He would need a new MEB, be reevaluated by the VA, have a new NARSUM written, and the process could take about 1 year.  

	i.  He was not happy about the prospect of spending another year in the WTB as he had been dealing with the effects of his injuries for almost 6 years and recognized that his military career was over because of his injuries.  He made the decision to move on and continue serving as a civilian.  He was in the process of securing employment offers through the Operation Warfighter Program and did not want to negatively impact his chances of being placed as a civilian by delaying his transition by 1 year.

	j.  He was told by the PEB liaison officer (PEBLO) that his other option was to continue on with his PEB without his right shoulder being listed as an unfitting condition, have the surgery, and then wait and see if the VA assigned him a rating for his right shoulder as an independent medical condition.  He was told if the VA assigned him a rating then the Army Physical Disability Review Board (APDRB) would amend his records to include his right shoulder condition on his DA Form 199.  He was advised that going forward with his PEB would allow him to transition out of the Army and still protect his ability to have his right shoulder condition included in his Army physical disability rating without having to wait a year to redo the PEB.

	k.  On 5 May 2009, he had right shoulder surgery.  The damage was not as bad as his left shoulder but it still took a lot to recover from it.  The surgeon that performed the surgery remarked that he was surprised that he was able to function as well as he had for almost 6 years with the injuries that he suffered.

	l.  On 22 May 2009, his DA Form 199 was finalized; he was found unfit and assigned a combined rating of 50%.  He appealed the ratings that were assigned and, consistent with the VA rating determination, his combined rating was changed to 64% which was rounded down to 60%.  On 2 July 2009, his new DA Form 199 was issued and recommended a permanent disability retirement with a rating of 60%.

	m.  In order to maximize his recovery from his right shoulder surgery, his retirement date was set for 15 December 2009.  On 29 November 2009, he started in a civilian position with the U.S. Army in Italy.  On 29 December 2009, the VA sent him a copy of his rating decision that was effective 17 December 2009 but his right shoulder was not listed in the rating decision.  In January 2010, he received a notice that he was scheduled for a VA examination in Washington, DC, on 11 January 2010 to evaluate his right shoulder.  He contacted the VA, told them he was living in Italy, and asked to have the evaluation done there.  He was told there were no facilities there and that the doctors had read his surgery reports and his PT reports from WRAMC after the surgery, and would evaluate his condition based on those reports.

	n.  On 17 February 2010, the VA sent him a revised rating decision.  The rating decision was issued on 2 February 2010 and found a service connection for his right shoulder labrum tear and impingement and granted an evaluation of 10% effective 16 December 2009 (emphasis added).  This is new evidence that he could not have presented prior to the effective date of his retirement and is evidence that his disability rating should be increased.  Given the nature of the injury and the repair, it is clear that this condition would have been found to be unfitting at the MEB stage and would have been included on the DA Form 199 if he had spent the year going back through the entire process.  Therefore, his DA Form 199 should be amended to include a sixth disability for his right shoulder labrum tear and impingement with a 10% disability rating and his combined disability rating should be raised to 70% retroactive to 16 December 2009.

3.  The applicant provides a NARSUM, DA Form 3947, three DA Forms 199, 10 pages of medical records, and two VA Rating Decisions. 

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’s record shows he entered active duty on 4 June 2002 in the rank of first lieutenant.  In July 2002, he was assigned to Headquarters and Headquarters Company, 1st Armored Division, Germany.  On 10 December 2002, he was promoted to captain (CPT)/O-3 in the Regular Army. He served in Iraq with his assigned unit from 5 May to 26 August 2003.  

3.  While in Iraq, he sustained an injury after a firefight when he rescued an injured Soldier from a burning vehicle by dragging/carrying him to safety.  He was treated at the troop medical clinic with medication and rest.  He continued to suffer from pain and he was medically evacuated from Iraq to Landstuhl Regional Medical Center (LRMC), Germany.  He was evaluated and treated with medication, rest, and PT.  On or about 2 September 2003, he was medically evacuated to WRAMC. 

4.  On 2 September 2003, an x-ray of the spine showed mild straightening of the expected cervical lordosis likely secondary to spasm.  He was evaluated by orthopedics who recommended further conservative management and he underwent intense PT for almost 2 months.  He was released from WRAMC as improved and in November 2003, he returned to his unit in Germany.

5.  In January 2005, he was returned to WRAMC for further medical management and he was assigned to Headquarters, WRAMC, in the Office of the Staff Judge Advocate.  He was treated at WRAMC with conservative treatment and was subsequently returned to his assigned unit.  In 2006, an MEB found he had several unfitting conditions and he was referred to a PEB.  In June 2006, the PEB found him unfit for duty.  These MEB/PEBs are not available for review with this case.  He nonconcurred with the findings of the PEB and applied for COAD; his request was subsequently approved.  

6.  In May 2008, he was assigned to the WTB, WRAMC.  His available record is void of the physical profile he was issued that resulted in additional MEB/PEB proceedings being conducted.

7.  The applicant provides a DES DOD/VA Pilot Program, WRAMC Consolidated NARSUM, dated 22 January 2009, wherein it stated, in part, the applicant’s chief complaints were left shoulder capsulitis, left knee instability, C-spine degeneration, migraines with associated twitching of the left eye, fatty liver, myofascial [muscle] pain, anal fissures, hemorrhoids, post-traumatic stress disorder (PTSD), asthma, and insomnia.  

	a.  Back and neck pain - his back and neck pain was initially noted in 2003 after he rescued a Soldier from a burning vehicle in Iraq.  He was medically evacuated to LRMC and then WRAMC.  He was treated with conservative treatments and underwent intensive PT for 2 months and was subsequently returned to his unit in Germany.  In January 2005, he was returned to WRAMC and was treated with medication, steroid injections, TENS unit, chiropractic treatments, and epidural injections which provided brief, partial relief.  In June 2006, a PEB found him unfit for duty; however, he requested and was granted COAD orders for 2 years.  Currently, he continued to suffer from both neck and back pain.

	b.  Left shoulder capsulitis - his left shoulder pain was initially noted in 2003 from the same event mentioned above while deployed to Iraq.  The pain gradually and progressively increased and was managed with medication, PT, and cortisone injections which provided partial relief.  After 4 years of conservative management, exploratory arthroscopy was done in June 2007.  He continued to suffer pain in his left shoulder and he underwent a second surgery in February 2008 in a private facility.  He continued to suffer from residual pain that was more noticeable when rolling on the shoulder, lifting, and overhead movement.  He was also experiencing pain in his right shoulder.  He had significant limitation of movement with his left shoulder associated with pain.

	c.  Left knee pain - during the incident in Iraq in 2003, he experienced left knee pain that was relatively less compared to either the neck, back, or left shoulder pain.  He underwent left knee surgery in September 2008 at Sibley Memorial Hospital, Washington, DC.  There was significant improvement of pain; however, he continued to have constant pain with associated tightness and sometimes swelling.  He was unable to stand or sit for long periods.  He had limitation of movement associated with pain.

	d.  Migraine headaches - since the incident in Iraq in 2003, he experienced severe headaches; however, the pain medication he took for his other pains tended to help as did staying in a dark room.  The headaches were associated with both photo and phonophobia, and twitching of the left eye.

	e.  The fatty liver was a finding noted by an ultrasound on 1 October 2007.  Both conditions of hemorrhoids and anal fissures occasionally flared up, either separately or together.  He had a history of asthma; review of notes from 2005 revealed a single episode of shortness of breath in October 2008.  Insomnia was usually related to his pains and the left eye twitching was associated with migraine headaches.

8.  The applicant provides a DA Form 3947, dated 4 February 2009, wherein it shows an MEB convened on that date and, after consideration of clinical records, laboratory findings, and physical examination found:
	a.  He had been diagnosed with chronic neck pain with radiculpathy due to degenerative disc disease (DDD); chronic low back pain due to DDD; left shoulder capsulitis with left shoulder pain following surgery; chronic left knee pain following surgery, and migraine headaches that were medically unacceptable under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  

	b.  The MEB also found he had fatty liver, hemorrhoids, anal fissures, asthma, insomnia, and left eye twitching that were medically acceptable.  The MEB recommended he be referred to a PEB.  On 18 February 2009, the applicant concurred with the MEB findings and recommendation. 

9.  The applicant provides a DA Form 199, dated 25 March 2009, wherein it shows an informal PEB convened on that date and confirmed his unfitting disabilities of chronic neck pain with radiculpathy due to DDD; chronic low back pain due to DDD; left shoulder capsulitis, status post left shoulder surgery; chronic left knee pain, status post knee surgery; and migraine headaches.  The PEB stated these conditions were unfitting and stable for rating; however, no ratings were assigned.  Additional conditions met retention standards and were not listed as unfitting on his profile.  On 27 March 2009, the applicant elected to request a copy of the VA disability ratings before he made a decision to concur/noncur with the PEB findings.

10.  The applicant provides a Sibley Memorial Hospital Operative Summary,
dated 5 May 2009, wherein it shows that he underwent outpatient surgery on that date for an internal derangement of the right shoulder.  The report shows the attending surgeon, in part, stated:

	a.  The applicant was an otherwise healthy 32-year old man with symptomatic internal derangement of his right shoulder.  He was admitted for diagnostic arthroscopy and surgery as needed to include repair of any labral pathology as well as possible decompression. Examination revealed the same overhead reproducible click noted on physical examination in the office. He had no instability pattern, a full range of motion, and no other evidence of internal derangement.

	b.  A full-thickness labra tear involving the biceps origin was noted to be torn away from the glenoid.  It was easily retracted into the joint as well as superiorly exposing the glenoid neck.  No articular surface abnormalities were noted on the glenoid or on the humerus.  The supraspinatus and infraspinatus, as well as teres minor, were felt to be normal.  No pathology was noted in the axillary recess.  An anterolateral portal was developed and the superior aspect of the neck of the glenoid was burred with a small round burr to remove scar tissue and fibril cartilage.

	c.  He tolerated the procedure well and was transferred to the recovery area in stable condition.  He was discharged from the hospital that day with instructions to limit his activity for the remainder of the day and follow the advice of his surgeon on resuming physical activity.

11.  The applicant provides a DA Form 199, dated 22 May 2009, wherein it shows an informal PEB convened on that date and confirmed his unfitting disabilities of:

* migraine headaches - rated at 30%
* cervical spondylosis with right C6-7 cervical radiculopathy (also claimed as spine DDD) - rated at 10%
* DJD, lumbar spine (also claimed as low back pain) - rated at 10%
* left shoulder rotator cuff tendonopathy, with recurrent subluxation (also claimed as capsulitis and limited use of left arm) - rated at 10%
* DJD, left knee (also claimed as left knee instability) - rated at 10%. 

12.  This DA Form 199 stated additional conditions met retention standards and were not unfitting.  The PEB recommended the applicant be permanently retired due to disability with a combined rating of 50%.  The block on this form for the applicant's election and signature is blank.

13.  The applicant provides and his record contains a DA Form 199, dated 2 July 2009, wherein it shows an informal PEB convened on that date and confirmed his unfitting disabilities of:

* migraine headaches - rated at 30%
* cervical spondylosis with right C6-7 cervical radiculopathy (also claimed as spine DDD) - rated at 20%
* DJD, lumbar spine (also claimed as low back pain) - rated 10%
* left shoulder rotator cuff tendonopathy, with recurrent subluxation (also claimed as capsulitis and limited use of left arm) - rated at 10%
* DJD, left knee (also claimed as left knee instability) - rated at 10%

14.  This DA Form 199 stated additional conditions met retention standards and were not unfitting.  The PEB recommended the applicant be permanently retired due to disability with a combined rating of 60%.  The applicant subsequently concurred with the PEB findings and recommendation and waived his right to a formal hearing.  He elected not to request reconsideration of his VA ratings.  On 21 July 2009, the PEB was approved by the Secretary of the Army.
15.  He was honorably retired from active duty on 15 December 2009 in the rank of CPT at WRAMC and he was placed on the permanent disability retirement list (PDRL) on 16 December 2009.

16.  He provides a VA Rating Decision, dated 17 December 2009, wherein it shows, in part, that effective 16 December 2009 he was granted service­connected disability for:

* PTSD (also claimed as insomnia) - rated at 30%
* migraine headaches - rated at 30
* cervical spondylosis, with right C6-7 cervical radiculopathy - rated at 20%
* DJD lumber spine - rated at 20%
* DJD left knee - rated at 10%
* left shoulder rotator cuff tendonopathy, with recurrent subluxation - rated at 10%
* left ankle sprain (claimed as left ankle instability) - rated at 10%
* hemorrhoids with anal fissures - rated at 0%

17.  This VA Rating Decision also showed he was denied service connected disability for fatty liver, left eye twitch, and asthma.

18.  He also provides a VA Rating Decision, dated 2 February 2010, wherein it shows that effective 16 December 2009 he was granted service-connected disability for right shoulder labrum tear and impingement rated at 10% and he was denied service-connection for a left toe ingrown toenail.  In part, it stated a higher evaluation was not warranted unless evidence showed arm motion was limited at the shoulder level.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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 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.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.   


20.  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 an error or injustice in the Army rating.  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.  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.  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.

21.  The governing directive-type memorandum established the DOD guidance for the overall implementation and management of the DES Pilot Program.  The DES Pilot will, for a limited period of time, test a new DOD and VA disability system.  The DES Pilot will be a service member-centric initiative designed to eliminate the duplicative, time-consuming, and often confusing elements of the two current disability processes of the Departments.  Key features of the DES Pilot include one medical examination and a single-sourced disability rating.  The DOD administered, comprehensive, VA protocol-based, general medical and specialty medical examinations will serve the needs of the Military Department PEBs in determining a service member’s fitness for continued military service and will serve the needs of the VA Rating Board in determining the appropriate disability rating to be awarded a service member for military unfitting and member claimed medical conditions incurred or aggravated as the result of military service.  The disability rating awarded by the VA Rating Board, specifically for the military unfitting medical condition(s), will serve as the basis for determining a DES Pilot participant’s final disposition.  The VA Rating Board’s combined disability award, for all medical conditions rated, shall be the basis for determining disability compensation payments and benefits administered by the VA.  

	a.  Paragraph 6.3.3.3 states service members who accept the informal PEB unfit determination may request reconsideration of their VA disability rating(s) by notifying their PEBLO, in writing, within 5 calendar days of receiving the VA disability rating from the PEBLO.

	b.  Paragraph 6.3.9 states upon separation from military service for medical disability, veterans may request correction of their military records through their respective BCMR if new information on their case is made available that may result in a different disposition.  For example, post-separation appeal of a VA disability rating may warrant a change in the Military Department's disability disposition from separation to disability retirement or may change retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant sustained injuries that warranted his entry into the DES.  He underwent an MEB that recommended his referral to a PEB.  He elected to be medically evaluated and rated by the VA under the DOD/VA Joint Disability Evaluation System.  A PEB convened on 22 May 2009 and listed his unfitting conditions as migraine headaches, cervical spondylosis with right C6-7 cervical radiculopathy, DJD of the lumbar spine, left shoulder rotator cuff tendonopathy, and DJD of the left knee with a combined rating of 50%.  No other unfitting conditions were listed.  He apparently requested reconsideration of the 10% rating for his cervical spondylosis and the VA subsequently reviewed his request and increased his rating for this condition to 20%.  

2.  On 2 July 2009, an informal PEB convened and listed his unfitting conditions as migraine headaches, cervical spondylosis with right C6-7 cervical radiculopathy, DJD of the lumbar spine, left shoulder rotator cuff tendonopathy, and DJD of the left knee.  No other unfitting conditions were listed.  The PEB recommended he be permanently retired due to disability with a combined rating of 60%.  He concurred with the PEB findings and recommendation and waived his right to a formal hearing.  On 21 July 2009, it was approved by the Secretary of the Army.  Once approved, he was retired on 15 December 2009 and placed on the PDRL on 16 December 2009.

3.  While it is recognized the applicant underwent surgery on his right shoulder on 5 May 2009, the evidence of record does not show, and he has not provided any evidence that shows he was found, or should have been found, unfit for duty due to a right shoulder condition while serving on active duty.

4.  The record shows he had been found unfit due to left shoulder rotator cuff tendonopathy rated at 10% due to significant limitation of movement of his left shoulder associated with pain.  While it is recognized he may have experienced some pain in his right shoulder while serving on active duty, the operative report he provided, dated 5 May 2009, stated an examination on that date revealed the same overhead reproducible click noted on a physical examination in the office but he did not have an instability pattern and he did have a full range of motion.  No other evidence of internal derangement was noted.  He has not provided any 


evidence that shows once he healed from the right shoulder surgery, and while he was serving on active duty, he did not have a full range of motion with his right arm or that any residual pain would have been so severe that he would he would have been found unfitting for a right shoulder condition prior to his retirement.

5.  Only the unfitting conditions and those which contribute to unfitness while an individual is serving on active duty are considered in arriving at the rated degree of incapacity warranting retirement for disability.  The fact the VA rated his right shoulder condition at 10% disabling after he was retired from active duty is noted, as is the fact the VA also granted him service-connected disability for additional conditions that had also not been found to be unfitting while he was serving on active duty.  However, after separation the VA may award ratings because of a service-connected disability that affects the individual's civilian employability but was not determined to be unfitting while the service member was serving on active duty.  

6.  His physical disability evaluation was conducted in accordance with law and regulations and he concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in his case.  Nor has he submitted substantiating evidence or an argument that would show an error or injustice occurred in his case.  He only submitted evidence that shows he was granted service-connected disability for a condition that was not found unfitting at the time of his PEB in July 2009 or prior to his retirement on 15 December 2009.  It does not meet the criteria for an additional rating for his right shoulder.  

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)                                         AR20140021336





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