MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            15 April 2003     
	DOCKET NUMBER:    AR2003084604

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Ms. Yolanda Maldonado		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his physical disability rating be increased.

APPLICANT STATES:  That after the Physical Evaluation Board (PEB) recommended his permanent disability retirement with a 40 percent disability rating, an addendum to the Medical Evaluation Board (MEB) was prepared.  The physicians who initiated the MEB noted there was an incorrect connection made between having an intracerebral hemorrhage and having a cryptogenic polyneuropathy (peripheral nerve damage of an unascertainable origin which initially starts in both feet and may progress to involve the calves and hands/fingers).  According to his physicians, the intracerebral hemorrhage and cryptogenic polyneuropathy are completely unrelated neurological conditions that are independent of one another.  They also noted that the PEB failed to include moderately severe left carpal tunnel syndrome as a diagnosis.  The PEB also listed the cubital tunnel syndrome (ulnar nerve compression at the elbow) as left when in fact the cubital tunnel syndrome was bilateral and surgery was done on both left and right elbows.  Based on the addendum, he was not given the right medical (neurological) diagnoses or disability rating.

EVIDENCE OF RECORD:  The applicant's military records show:

After having had prior service, he entered active duty as a warrant officer on     23 May 1997.

On or about 19 November 1998, the applicant apparently had surgery scheduled for repair of a degenerative right elbow joint or possibly both elbows.  

According to a Department of Veterans Affairs (VA) Rating Decision, the applicant was granted service connection (by the VA) for his left arm and hand numbness because he first developed symptoms in service in early 2001 and was found on nerve conduction studies to have ulnar and median nerve neuropathy.  Treatment for this complaint could not be located in the available service medical records.  His MEB proceedings noted the approximate date of origin of this condition as July 2001.

In early July 2001, the applicant suffered a right caudate hypertensive hemorrhage (stroke) while flying on an airplane.  

The applicant was referred to an MEB for complaints of headaches, left-sided sensory disturbances/pain, and lightheadedness.  The Medical Board Summary noted that in a neurological evaluation performed on 8 May 2002, the applicant reported left arm numbness/weakness and left leg numbness and pain.  He felt a pulling or cramping in the left face and left eyelids.  He indicated the symptoms became more chronic over the past 1 to 2 months.  He noticed the left leg numbness could worsen with prolonged standing and he had pain traveling down the left leg.
The neurologic examination noted no obvious cognitive dysfunction.  Visual fields, fundoscopy, ocular motility, and pupillary testing were all normal.  Facial strength was normal.  Motor examination revealed 5/5 strength in all extremities with normal tone and bulk.  DTRs (deep tendon reflexes) were 2/4 throughout with flexor plantar reflexes.  Sensory examination revealed decreased pinprick and light touch over the left face, arm, and leg.  Otherwise, sensation over the right side and to other modalities was normal.  Coordination and gait were normal.

The applicant's most recent MRI (magnetic resonance imaging) was normal.  All laboratory testing was unremarkable.  An EMG (electromyography) performed on 10 April 2002 showed a chronic, mild, distal, symmetrical, motor/sensory, demyelinating polyneuropathy (damage to the myelin sheath of the peripheral nerves), and superimposed left grade II carpal tunnel syndrome.

An Orthopedic Addendum to the Medical Board Summary was based on an examination performed on the applicant on 14 May 2002 for his complaint of bilateral elbow pain and left greater than right hand numbness.  It was noted he had pain which was 8/10 in severity at its worst on a daily basis and was associated with heavy activities involving the arms.  He was able to perform approximately 15 push-ups without significant pain.  He denied specific functional disability related to his loss of elbow motion.  He was able to lift any weight up to 225 pounds but was unable to hold any significant weight for longer than one minute due to elbow pain.  He also complained of bilateral hand paresthesia (abnormal burning or prickling sensation) involving primarily the small finger, ring finger, and ulnar aspect of the middle finger, worse on the left side.  In addition, he had residual effects of his stroke on the left side involving the upper and lower extremities.

The Orthopedic Addendum noted that an examination of the applicant's left elbow revealed a range of motion of 15 degrees to 130 degrees.  Right elbow motion was 22 degrees to 115 degrees.  Maximum elbow flexion elicited ulnar hand paresthesia most prominent on the left side involving the small,ring, and ulnar aspect of the middle finger.  X-rays of both elbows demonstrated moderate degenerative changes of the ulnohumeral joint.  X-rays of both wrists were normal.  It was noted that although he had nerve conduction studies which were possibly consistent with carpal tunnel syndrome, his clinical picture was more typical for left cubital tunnel syndrome involving the ulnar nerve on the left side.  He was diagnosed with bilateral elbow degenerative arthritis, status post 1998 bilateral arthroscopoic elbow debridement, and left cubital tunnel syndrome.

On 5 September 2002, the MEB diagnosed the applicant with (1) hypertensive intracerebral hemorrhage; (2) cryptogenic polyneuropathy; (3) carpal tunnel syndrome/left cubital tunnel syndrome; (4) chronic tension-type headaches secondary to diagnosis number 1; and (5) bilateral elbow degenerative arthritis status post bilateral arthroscopic elbow debridement.  He was referred to a PEB.
On 10 September 2002, the applicant agreed with the MEB's findings and recommendation.

On 4 November 2002, an informal PEB found the applicant to be physically unfit for service due to bilateral degenerative arthritis (VA Schedule of Rating Disabilities (VASRD) code 5003), 20 percent; status post hypertensive intracerebral hemorrhage with cryptogenic polyneuropathy, manifested by parethesias and pain and rated as mild (VASRD codes 8009 and 8105),              10 percent; tension headaches, rated as moderate (VASRD code 5399 and 5323), 10 percent; and left cubital tunnel syndrome, rated as mild (VASRD code 8616) 10 percent.  The PEB recommended he be permanently retired due to disabilities rated at 40 percent.  On 6 November 2002, the applicant concurred in the findings and recommendation and waived a formal hearing.

On 13 November 2002, the applicant expressed his desire to change his PEB election from concur to nonconcur and to request a formal hearing.

On 20 November 2002, the applicant withdrew his request for a formal hearing on 10 December 2002 and agreed with the PEB's findings.

On 4 December 2002, an Addendum to the Medical Board was prepared by Major W___, Neurology and Major S___, Internal Medicine.  The Addendum noted that the DA Form 199 appeared to make an incorrect connection between the applicant having an intracerebral hemorrhage and having a cryptogenic polyneuropathy and also failed to include moderately severe left carpal tunnel syndrome as a diagnosis.  The cryptogenic polyneuropathy and intracerebral hemorrhage diagnoses were completely unrelated neurological conditions that were independent of one another.  The applicant's intracerebral hemorrhage likely contributed to his chronic headaches and possibly to his left-sided sensory dysfunction/pain.  The diagnosis of polyneuropathy related to an injury of the peripheral nervous system and likely caused him to have bilateral numbness/paresthesias.  

The Addendum further noted that the applicant was diagnosed with cubital tunnel syndrome bilaterally but his latest EMG study also revealed the presence of left carpal tunnel syndrome as well, of moderate severity, for which conservative therapy had failed.  The Addendum suggested correction of the DA Form 199 to reflect the above-mentioned neurological disorders.

On 18 December 2002, the U. S. Army Physical Disability Agency (USAPDA) reviewed the December 2002 Addendum along with the applicant's entire case and determined that no change was warranted.  

On 1 February 2003, the applicant was retired due to permanent disability.

On or about 21 March 2003, the VA awarded the applicant disability compensation for cryptogenic neuropathy, left upper extremity, with superimposed carpal tunnel syndrome and cubital tunnel syndrome (20 percent); status post intracerebral hemorrhage with left lower extremity weakness           and numbness (10 percent); hypertension (10 percent); degenerative joint disease, left elbow (10 percent) degenerative joint disease, right elbow             (10 percent); chronic lumbosacral strain syndrome (10 percent); status post intracerebral hemorrhage with left hemiparesis and left upper extremity weakness (10 percent); cryptogenic neuropathy, right upper extremity, with superimposed carpal tunnel syndrome (10 percent); chronic tension headaches (0 percent); exertional compartment syndrome, left leg (0 percent); and exertional compartment syndrome, right leg (0 percent).

In the processing of the case, an advisory opinion was obtained from the USAPDA.  The USAPDA noted that the MEB diagnosis of hypertensive intracerebral hemorrhage was not a proper diagnosis as it related to a past condition which actually left residual conditions.  The residual conditions should have been the actual listed diagnosis.  There might have been some residuals from that event such as the headaches and claimed weakness on the left but the PEB could not actually rate the applicant for the hemorrhage event.  The medical evidence revealed claims of weakness and numbness on the applicant's left side but those claims were generally not supported by any significant physical findings.  There was little evidence in the case file to support a finding of unfit for such claimed residuals.  Nevertheless, accepting the PEB's findings of unfitness, the applicant's left side sensations of weakness and numbness were mild and properly rated at 10 percent.  Even if the cryptogenic polyneuropathy was independent of any of the identifiable residuals of the hemorrhage, and were independently unfitting, it affected the same area or system of the body and could not be rated separately (pyramiding).

The USAPDA noted that the PEB did not rate the applicant's carpal tunnel syndrome (left or right) as the PEB did not find sufficient evidence to support a finding of unfit.  Although there were some EMG findings to support the diagnosis of left carpal tunnel syndrome, there was little physical or performance evidence to warrant a finding of unfitness for carpal tunnel syndrome.  The ability to accomplish 15 push-ups without significant pain and to lift up to 225 pounds indicated the applicant had little "specific functional disability" related to the carpal and cubital tunnel syndromes. 

The USAPDA noted that the PEB found a 10 percent rating for the left cubital tunnel syndrome was separate from the rating of 20 percent for the bilateral degenerative arthritis of the elbows.  The separate ratings were in error as both diagnoses and bodily functions related directly to the elbows and rating both separately was in violation of the rule against pyramiding.  A recomputation of the rating would still have provided a 40 percent rating for the applicant after correction of the error.

The USAPDA concluded by stating there were no errors or injustices in the PEB's adjudication of the applicant's case which would result in any increase to the applicant's disability rating.  The PEB's error in rating the applicant twice for elbow diagnoses did not improperly increase his overall disability rating.  The PEB's findings were supported by substantial evidence.  The USAPDA opined that the applicant's records remain unchanged.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He responded by stating that rating different areas of a disability has nothing to do with pyramiding.  If cryptogenic polyneuropathy and intracerebral hemorrhage diagnoses are completely unrelated neurological conditions and independent of each other, they must be rated separately.  He also questions how carpal tunnel syndrome of moderate severity could not be rated and how cubital tunnel syndrome could be rated as mild.  He takes offense to the statement that his being able to do 15 push-ups without significant pain and could lift up to 225 pounds indicated that he had little "specific functional disability" related to carpal and cubital tunnel syndromes.  He was feeling great and scoring 300 on the physical fitness test when he had a stroke.  That statement should have no bearing in this matter and should not have been mentioned.  Left cubital tunnel syndrome was separate from the 20 percent rating for bilateral degenerative arthritis because they do not relate.  He questions what arthritis has to do with cubital tunnel syndrome of the ulnar nerve.  The answer is nothing.  The VA rated him at 70 percent for the same conditions the PEB evaluated.  Both are governed by the same VASRD. 

Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, appointment, retention, and separation.  Paragraph     3-30f states that a stroke, when residuals affect performance of duty, is a cause for referral to an MEB.  

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.   The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states that the mere presence of an 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 soldier reasonably may be expected to perform because of his or her office and rank.

Army Regulation 635-40 states the fact that a soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the soldier unable to perform the duties of his or her office or rank in such a way as to reasonably fulfill the purpose of his or her employment on active duty.  There is no legal requirement 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.  

Army Regulation 635-40, Appendix B, prohibits pyramiding.  Pyramiding is the term used to describe the application of more than one rating on any area or system of the body when the total functional impairment of that area or system can be reflected under a single code.  All diagnoses that contribute to total functional impairment of any area or system of the body will be merged with the principal diagnosis for rating purposes.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level.

3.  The Army is required to rate only unfitting conditions.  To take an extreme example of the different principles involved, the VASRD provides, and the VA could award, a disability rating of 10 percent for the removal of one testicle.  Yet, the removal of one testicle would not make a soldier unfit for duty and so would not be rated. 

4.  Regarding a stroke, Army Regulation 40-501 provides that only the residuals which affect performance of duty (not the actual stroke itself) are cause for referral to an MEB.  Therefore, it appears the USAPDA is correct when it states the applicant's stroke (intracerebral hemorrhage) was incorrectly listed as an unfitting condition.  According to the December 2002 Addendum, his headaches and possibly his left sided sensory dysfunction/pain were residuals of his stroke.  His headaches were rated as unfitting.  His left sided sensory dysfunction/pain was rated as unfitting (as bilateral numbness/paresthesias).

5.  The same principle applies to the applicant's cryptogenic polyneuropathy.  The condition itself cannot be rated, only the residuals from that condition.  According to the December 2002 Addendum, the applicant's bilateral numbness/paresthesias were residuals of this condition.  These residuals were rated as unfitting.

6.  While the PEB, on the DA Form 199, may have erred by not listing the residuals from the applicant's stroke and cryptogenic polyneuropathy separately, the ratings themselves would not change.  Therefore, the error is not detrimental to the applicant.

7.  Regarding the applicant's carpal tunnel syndrome, the USAPDA properly noted that the applicant was able to do 15 push-ups and could lift up to 225 pounds.  These findings were part of his MEB evaluation and were an indicator of how the condition affected his ability to perform his duties.  

8.  As outlined in Army Regulation 635-40, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  The fact that a soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  It was necessary to compare the nature and degree of physical disability present with the requirements of the duties the applicant reasonably could be expected to perform.  

9.  The applicant was a warrant officer.  A warrant officer's duties are primarily supervisory.  Although some physical work to include heavy lifting may be required at times, such work would not constitute his primary functions.  It appears to the Board that this is the reason the USAPDA noted that the applicant's carpal tunnel syndrome (and cubital tunnel syndrome) had little "specific functional disability" related to those conditions.  It appears to the Board to have been a proper presumption.

10.  Nevertheless, the PEB rated the applicant's left cubital tunnel syndrome.  The USAPDA noted that this condition should not have been rated as it constituted pyramiding with his rated condition of bilateral degenerative arthritis (in the elbows).  The Board agrees with the USAPDA's opinion regarding the error in rating the applicant's cubital tunnel syndrome.
11.  Pyramiding is the term used to describe the application of more than one rating on any area of the body when the total functional impairment of that area can be reflected under a single code.  All diagnoses that contribute to total functional impairment of any area of the body will be merged with the principal diagnosis for rating purposes.

12.  The applicant's left cubital tunnel syndrome pertained to his elbow.  His bilateral degenerative arthritis pertained to his elbows.  Since only one area of his body was impaired, only one rating should have been applied.  

13.  The Board is cognizant that errors were made on the applicant's DA Form 199.  However, as the USAPDA noted, correction of the errors would not affect the total disability rating awarded to him.  Therefore, correction of the DA Form 199 is not warranted.

14.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jhl___  __rtd___  __ym____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2003084604	
SUFFIX		
RECON		
DATE BOARDED	20030415	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.01	
2.	108.02	
3.		
4.		
5.		
6.