IN THE CASE OF: BOARD DATE: 2 December 2008 DOCKET NUMBER: AR20080012532 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 reconsideration of his earlier request that his disability rating be increased to at least 30 percent. 2. The applicant states that at the time the rating was rendered he did not have the emotional strength to challenge it as he was suffering extreme pain from his wounds. A higher rating would be in consonance with his Department of Veterans Affairs (VA) rating and thereby recognize the degree of his injuries and the level of pain he suffered when he went through the Army disability system. The 20 percent rating has worked an injustice upon him because he has not been properly compensated for his war wounds. A rating of at least 30 percent would entitle him to a military identification card and TriCare coverage. 3. The applicant provides, as new evidence, three bound booklets titled, “Medical Records from Central Texas Veteran’s Administration Health System,” “Medical Records from Emergency Room of Seton Northwest Hospital,” and “Medical Records from Dr. J. L___ H___; Pain Management Specialist”; nine photographs of him being treated for his wounds to include closeup photographs of his wounds. 4. In addition, on 31 July 2008, the applicant’s mother emailed the Secretary of the Army on the applicant’s behalf, indicating that the original decision of the Army Board for Correction of Military Records was unacceptable and insulting. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070007871 on 17 July 2008. 2. The applicant provides new evidence that will be considered by the Board. 3. The applicant enlisted in the Regular Army on 11 March 2003. He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Infantryman). 4. The applicant arrived in Kuwait/Iraq on 11 August 2004. 5. On 13 January 2005, the applicant sustained an injury from a grenade explosion, with multiple fragmentation wounds to both of his lower extremities and to his right lateral chest. He was evacuated from the theater on 11 February 2005 to Landstuhl Regional Medical Center, Germany. He was later medically evacuated from Landstuhl Army Medical Center, through Andrews Air Force Base, to Evans Army Community Hospital, Fort Carson, CO. 6. The applicant was promoted to Sergeant, E-5, on 1 August 2005. 7. A Medical Evaluation Board (MEB) consultation, dated 14 September 2005, noted that persistent problems the applicant had included numbness from the right distal leg in the saphenous nerve distribution from about mid medial wound location down distally over the medial ankle into the medial first ray of the foot. There was essentially no pain in the right lower extremity. In the left lower extremity, he had two wounds running obliquely across the anterior medial thigh, one was in the junction of the mid and proximal thigh; the other was distally in the thigh. He also had a small wound in the anterior left tibia with exposed bone, which healed up without a problem. He had persistent pain around the medial left knee. He was given a nerve block; however, after it wore off he ended up with hypersensitivity with pain at a light touch, to include wearing clothes. 8. On 19 December 2005, the applicant was given a spinal cord stimulator trial lead implantation in an attempt to control his chronic left lower extremity pain. 9. The applicant’s MEB Narrative Summary (NARSUM) indicated his chief complaint was “I have nerve damage in my legs.” The NARSUM noted that after physical therapy began, the applicant began to develop a painful condition in the area of his right suprapatellar area. He subsequently had surgery on 15 April 2005 to remove the retained shrapnel in that area, and he did get relief of pain after surgical recovery. Similarly, he developed pain at the lateral aspect of the right ankle and had a couple pieces of shrapnel removed from near the peroneal tendons on 30 June 2005. That procedure afforded him pain relief. 10. The NARSUM indicated that the applicant continued to have a burning, virtually constant pain located mainly in the left anteromedial thigh. The applicant reported that he could perform virtually none of the functions required of an infantryman due to his pain, particularly in the left thigh. Training for an Army physical fitness test was also affected because he could not comfortably run or do sit-ups or push-ups because of pain in his left thigh. He also reported some mild compensatory low back-type pain, which he felt was related to his altered gait. His current pain level overall was 3 to 5/10 and varied, primarily in the left distal thigh, medial knee, and medial calf region. 11. On 20 March 2006, in preparation for the applicant’s appearance before an MEB, the applicant’s commander stated the applicant suffered through multiple surgeries and many hours of physical therapy after being wounded by an enemy grenade attack. The applicant had a physical profile which was issued to him on 10 September 2005 that limited him from road marching and leading his Soldiers on them. The physical profile also limited him from bearing heavy weights, such as his load bearing equipment. He was still currently working as a rifleman in a scout platoon, but his physical profile and his ability to keep up with Soldiers in his unit had decreased. 12. On 10 May 2006, the applicant was issued a permanent physical profile due to an injury (chronic neurogenic pain due to lower extremity shrapnel wounds). 13. On 16 May 2006, an MEB referred the applicant to a Physical Evaluation Board (PEB) as a result of neurogenic pain due to explosive shrapnel injuries to his lower extremities. The applicant had indicated that he did not desire to continue on active duty. On 24 May 2006, the applicant agreed with the MEB’s findings and recommendation. 14. On 2 June 2006, an informal PEB found the applicant to be unfit (under the VA Schedule for Rating Disabilities (VASRD) code 8626) due to chronic neuritis in his left leg, including wounds to the left proximal (upper) medial (inside) thigh. The PEB noted that the applicant continued to have a constant burning pain of his left anteromedial thigh which was unresponsive to injections, neuromodulator medication, and trial of a spinal cord stimulator. At the time, he was being treated with nonopioid medications. Examination had disclosed painful hypersensitivity and decreased sensation in his medial left leg from his mid-thigh to his distal calf, with normal motor strength. No muscle atrophy or loss of reflexes had been noted. 15. The informal PEB recommended the applicant be discharged with severance pay with a 20 percent disability rating. 16. On 22 June 2006, the applicant was honorably discharged due to physical disability, with severance pay. He had completed 3 years, 3 months, and 12 days of creditable active service. 17. On or about 19 December 2006, the applicant visited the VA for the first time to establish his care and get medication refills. He complained of ongoing back and knee pain of a 5 on a scale of 0 - 10. He was ambulatory with a steady gait. On a depression screen, he indicated that over the last two weeks he had not been bothered by having little interest or pleasure in doing things or in feeling down, depressed, or hopeless. A post-traumatic stress disorder (PTSD) screen indicated that he had no signs of PTSD over the past month. It was noted he had healed scars in the legs and thighs, where he had hyperesthesia (sensitivity to touch); his knees were cool with tender skin, mottled skin over knees, full range of motion (ROM), stable, and not inflamed. Diagnoses included a localized area of traumatic neuropathy in his right lower leg (right lower leg neuritis was not found) and lumbosacral strain and bulged disc with residuals, now with progressive low back pain and with neuropathic pain. He was able to lift weights. 18. On 14 March 2007, the VA awarded the applicant service-connected compensation for status post shrapnel wound, left leg (40 percent); residual, deep scars, right leg (20 percent); residual, deep scars, left leg (20 percent); status post shrapnel wound, right knee and lower leg (20 percent); status post shrapnel wound, right elbow (10 percent); lumbosacral strain and bulging disc (10 percent); status post shrapnel wound, right ankle (10 percent); superficial scar, right elbow (10 percent); status post shrapnel wound with removal of shrapnel and residual, superficial scar, right hand (10 percent); residual, superficial scars, right chest (10 percent); and gastroesophageal reflux disease (10 percent). He was awarded a combined rating of 90 percent. 19. On 27 March 2007, the VA developed a physical therapy discipline for the applicant regarding his knee pain. The Consult Request noted that the applicant currently swam three to four times a week and also ran twice a week and lifted weights, to include leg press and hip adduction/abduction. The Consult Request noted that he currently was working in a car dealership as a driver. Examination of his knees revealed no swelling, no effusion, negative Lachman, negative drawer, and negative McMurray. There was no instability of varus or valgus stress. X-rays revealed some small metallic densities in the soft tissue surrounding the knee. He was diagnosed with early degenerative joint disease. 20. On 13 May 2007, the applicant was treated in the emergency room for right elbow pain that started that day. He provided evidence to show he has been on almost continuous treatment for pain management. 21. In the processing of the case, an advisory opinion was obtained from the U. S. Army Physical Disability Agency (PDA). The PDA noted that the applicant’s MEB was completed with one diagnosis of neurogenic pain due to shrapnel injuries. His several wounds were treated. All of his wounds and fasiotomy incisions healed properly, but he continued to complain of remaining pain located in the left anteromedial thigh and also with complaints of occasional pain in his knees and lower back. The physical examination form indicated he could touch his toes and had full range of motion of his knees, and the physician’s report did not find that those conditions were such a problem that they did not meet medical retention standards. He was given a physical profile limiting his military function only as they related to his left thigh pain. A detailed medical examination for all bodily areas was “unremarkable except for the neurogenic pain” and obvious scars. The applicant reported that he could not perform his duties because of the pain in his thigh. The PEB found him unfit for his one diagnosis, and the applicant concurred with the findings and waived his right to a formal hearing. 22. The PDA also noted that the VA provided additional ratings for scars from his shrapnel wounds and a lumbosacral strain. On the same date, Doctor H___ reported that the applicant’s chief complaint was his pain in the left medial thigh, also reporting low back pain and bilateral knee pain. Physical findings confirmed numerous scars, but only his left thigh was tender or painful. The PDA noted that the PEB is a performance-based board which only compensates for conditions that render a Soldier unfit for duty. The fact the VA subsequently rated all his scars was not evidence of any PEB error as the VA standards regarding the compensability of conditions is different from those of the military. Issues concerning treatment of the wounds and how the pain affects him on a daily basis are all important and germane to the applicant, but they are not relevant or material to the subsequent disability rating provided by the PEB. 23. A copy of the advisory opinion was provided to the applicant for comment or rebuttal. The applicant found the advisory opinion to be a slap in his face. It grossly minimized his disability and he objected to the entire tenor of the document. He questioned how it can be irrelevant if pain is crippling and prohibits the use of his legs. He knows it is extremely relevant because he cannot function on a daily basis and therefore is no longer an infantryman. He stated it is true that he did not fight the findings of the MEB. However, he was in great physical pain from his combat wounds. He was beaten down, disgusted, and lacked any faith or confidence that fighting the MEB would make any difference. He was depressed. Although out of pride he never claimed PTSD, he suffered from it and still does. He states that these statements are not written to ask that a judgment be included regarding PTSD, or to shock, but to bring to the Board’s attention the reality of war and the grave injustices bestowed upon himself and countless numbers of his colleagues. 24. The applicant continued that he emphatically contested the MEB’s “one diagnosis of neurogenic pain.” Pain may be difficult to quantify; nevertheless, it is very real and very debilitating and his nerve damage is irreversible. The records also show that he has a bulging disc. His x-rays show that he has shrapnel imbedded in the bone where the impact of the grenade fractured his tibia, and also show that shrapnel is peppered throughout his body. To dismiss this (x-ray evidence) as not a source of disability is to be flippant about the impact of surviving a grenade explosion three feet from one’s legs and how it feels to have foreign matter throughout the body, particularly in the ankle, calves, and knees. The scars and scar tissue are very tender and sensitive and another source of constant pain. Although the wound openings healed, his legs are permanently damaged and are not the legs of the Soldier he was prior to his injuries. 25. 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. 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. 26. Army Regulation 635-40 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. 27. The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition. 28. The VASRD states that the evaluation of the same disability under various diagnoses (i.e., pyramiding) is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. The evaluation of the same manifestation under different diagnoses is to be avoided. 29. The VASRD states that neuritis (cranial or peripheral) characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis (and to see the nerve involved for the diagnostic code number and rating.) The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate (or with sciatic nerve involvement, for moderately severe) incomplete paralysis. 30. The VASRD relates code 8626 (neuritis) to code 8526 (anterior crural (femoral) nerve). It gives this code a 20 percent rating when paralysis is moderately incomplete. 31. The VASRD gives code 8520 (sciatic nerve) a 40 percent rating when paralysis is incomplete and moderately severe; and a 60 percent rating when paralysis is incomplete and severe, with marked muscular atrophy. 32. The VASRD gives code 8521 (external popliteal nerve (common peroneal)) a 20 percent rating when paralysis is moderately incomplete; code 8552 (musculocutaneous nerve (superficial peroneal) a 20 percent rating when paralysis is moderately incomplete; code 8523 (anterior tibial nerve (deep peroneal) a 10 percent rating when paralysis is moderately incomplete; code 8524 (internal popliteal nerve (tibial)) a 20 percent rating when paralysis is moderately incomplete; code 8526 (posterior tibial nerve) a 10 percent rating when paralysis is moderately incomplete; code 8527 (internal saphenous nerve) a zero percent rating when paralysis is moderately incomplete; code 8528 (obturator nerve) a zero percent rating when paralysis is moderately incomplete; code 8529 (external cutaneous nerve of thigh) a zero percent rating when paralysis is moderately incomplete; and code 8530 (ilio-inguinal nerve) a zero percent rating when paralysis is moderately incomplete. 33. Title 10, U. S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent. Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay. 34. Title 10, U. S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. 35. Title 38, U. S. Code, sections 1110 and 1131, permits 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. 36. Army Regulation 600-8-14 (Identification Cards, Tags, and Badges) states that honorably discharged veterans who are rated as 100 percent disabled from a service-connected injury or disease are entitled to a military identification card and commissary, exchange, and MWR (morale, welfare, and recreation) benefits. Medical benefits are received through the VA. DISCUSSION AND CONCLUSIONS: 1. The contentions the applicant made in his application and with his rebuttal to the advisory opinion have been carefully considered. The sentiments expressed by his mother in her email to the Secretary of the Army have also been carefully considered. 2. The applicant suffered significant injuries while serving his nation, and any misunderstanding generated by the original ABCMR decision in his case was not intended. The records in this case bear out the applicant’s contention that he was never treated at Walter Reed Army Medical Center but that he was medically evacuated from Germany through Andrews Air Force Base and ultimately to Evans Army Community Hospital at Fort Carson, CO, where his wounds were surgically closed. 3. No one is making light of his injuries and no one doubts that he is suffering great pain from the residuals of his injuries. 4. Nevertheless, it appears that his injuries were correctly evaluated and rated by the PEB. 5. The VA awarded the applicant service-connected compensation for several right leg conditions (residual, deep scars, right leg; status post shrapnel wound, right knee and lower leg; and status post shrapnel wound, right ankle), but there is no evidence to show that the applicant was unfit to perform his duties as a result of a problem with his right leg/knee/ankle. 6. The NARSUM noted that after physical therapy began, the applicant began to develop a painful condition in the area of his right suprapatellar area, but after surgery to remove the retained shrapnel in that area he got pain relief. The NARSUM noted that he developed pain at the lateral aspect of the right ankle, but after having a couple pieces of shrapnel removed from near the peroneal tendons he obtained pain relief. 7. The VA awarded the applicant service-connected compensation for several upper extremity conditions (status post shrapnel wound, right elbow; superficial scar, right elbow; and status post shrapnel wound with removal of shrapnel and residual, superficial scar, right hand), but there is no evidence to show that the applicant was unfit to perform his duties as a result of a problem with his upper extremities. 8. The VA awarded the applicant service-connected compensation for scars, right chest and gastroesophageal reflux disease. Again, there is no evidence to show that he was unfit to perform his duties as a result of these conditions. 9. The VA awarded the applicant service-connected compensation for lumbosacral strain and bulging disc. The NARSUM indicated that the applicant reported some mild compensatory low back-type pain, which he felt was related to his altered gait. However, the NARSUM also indicated that the applicant’s primary complaint was virtually constant pain located mainly in the left anteromedial thigh and that he could perform virtually none of the functions required of an infantryman due to his pain, particularly in the left thigh. He indicated that he could not train for the Army physical fitness test because he could not comfortably run or do sit-ups or push-ups because of pain in his left thigh. There is no evidence in the available records to show that he was unfit to perform his duties as a result of his back condition. 10. 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. The available evidence shows that the only condition that rendered the applicant unable to perform his duties was the pain in his left leg. 11. It is acknowledged that the applicant’s nerve damage is irreversible, that he has a bulging disc, that he has shrapnel imbedded in the bone where the impact of the grenade fractured his tibia, and that shrapnel is peppered throughout his body. It is acknowledged that his current condition may get worse over time, or that the shrapnel in his body may cause new conditions to develop. However, the Army’s rating is dependent on the severity of a Soldier’s condition at the time of separation. The VA has the responsibility and jurisdiction to recognize any changes in that condition, or to recognize and compensate for newly-developed conditions, over time by adjusting the Soldier’s disability rating. 12. In addition, 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. That is why the VA can rate the applicant for having medical conditions even though those same conditions did not make him unfit to perform his military duties. 13. The VA awarded the applicant service-connected compensation for status post shrapnel wound, left leg (40 percent) and for residual, deep scars, left leg (20 percent). 14. The PEB found the applicant to be unfit under VASRD code 8626 due to chronic neuritis in his left leg, including wounds to the left proximal medial thigh, and recommended he be discharged with severance pay with a 20 percent disability rating. 15. The PEB had noted that the applicant’s left leg had normal motor strength with no muscle atrophy or loss of reflexes. There was no evidence to show he had any of the organic changes referred to in the VASRD (aside from the pain, which could not be objectively measured or observed) for rating neuritis. Therefore, under the guidelines of the VASRD itself, the maximum rating he could have received was 20 percent (i.e., for moderately incomplete paralysis). 16. The 27 March 2007 VA document indicated that the applicant swam three to four times a week and also ran twice a week and lifted weights, indicating (but admittedly not confirming) that he did not have any organic changes at that time, either. It is not known under which VASRD code the VA rated his status post shrapnel wound, left leg. The 40 percent rating granted to him indicates the VA rated him for sciatic nerve involvement. However, it cannot be determined where a sciatic nerve involvement could have come from. The MEB consultation, dated 14 September 2005, indicated the applicant’s injuries involved the saphenous nerve (the VASRD’s standard for saphenous nerve involvement would have been a zero percent rating). The PEB rated him for anterior crural (femoral) nerve involvement. Again, for involvement of this nerve he was properly given a 20 percent rating. 17. The VA also awarded the applicant service-connected compensation for residual, deep scars, left leg (20 percent). It is not known under which VASRD code the VA rated him for this condition. It appears that such a rating may have been the result of pyramiding, which is prohibited by the VASRD. However, the VA may interpret and apply the VASRD as it sees fit under its own policies and procedures. The Army is prohibited from pyramiding by its governing regulation. 18. It is understood that out of pride the applicant never claimed PTSD. Indeed, since it appears the applicant tried very hard while still in the Army to perform his duties as an infantryman, there does not seem to be any evidence to show that he was suffering any PTSD symptoms at the time that made him unfit to perform his duties. Still, the applicant should be aware that PTSD, especially considering the trauma he underwent while at war, is not a condition to be ashamed of. If he should ask the VA to rate him for PTSD, and if he received even just a 10 percent rating for PTSD, he most likely would have his VA disability increased to 100 percent. That might not entitle him to medical care through TriCare, but it would entitle him to a military identification card. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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 to amend the decision of the ABCMR set forth in Docket Number AR20070007871 dated 17 July 2008. 2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms. ______xxx_ _ _______ ___ 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) AR20080012532 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080012532 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1