BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20160001417 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ____x____ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20160001417 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. BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20160001417 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his DA Forms 3947 (Medical Evaluation Board (MEB) Proceedings) and 199-1 (Formal Physical Evaluation Board (PEB) Proceedings) to include his medical condition of radiculopathy, and for his DA Form 199-1 to reflect he was medically retired instead of separated with severance pay. 2. The applicant states, in effect, his medical condition of radiculopathy was not properly considered and should have resulted in a higher disability rating. Instead, he only received a rating of 20 percent and was separated with severance pay due to physical disability. His radiculopathy caused both pain and weakness, a lack of coordination, and tremors. It is listed as a medical condition in Army Regulation (AR) 40-501 (Standards of Medical Fitness) and, based on this, it should have been separately rated. 3. The applicant provides: * two letters, dated 12 March and 7 May 2012, from Neuroscience and Rehabilitation Associates, * Neuroscience and Rehabilitation Associates EMG (electromyography)/NGV (nerve conduction velocity) test results * MEB Narrative Summary (NARSUM), dated 22 June 2012 * first page of DA Form 3947, dated 27 June 2012 * Impartial Provider Review (IPR) Request, dated 9 July 2012 * memorandum, dated 27 July 2012, Subject: Request for IPR regarding [applicant], with applicant's self-authored statement * IPR, dated 21 August 2012 * memorandum, dated 16 August 2012, Subject: IPR for [applicant] * memorandum, dated 4 October 2012, Subject: Response to [applicant] MEB Appeal Letter * DA Form 3947, dated 12 October 2012 (unsigned by the applicant) * DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement), dated 23 October 2012 * memorandum, dated 26 October 2012, Subject: Request for MEB Appeal [applicant] * memorandum, dated 30 October 2012, Subject: Response to [applicant] Second MEB Appeal Letter * DA Form 3947, dated 12 October 2012 (signed by the applicant on 29 October 2012) * Department of Veterans Affairs (VA) Disability Evaluation System (DES) Proposed Rating, dated 7 December 2012 * DA Form 199 (Informal PEB Proceedings), dated 17 December 2012 * applicant's request for formal PEB, undated * letter, dated 10 January 2013 from applicant's chiropractor * DA Form 199-1, dated 1 April 2013 * memorandum, dated 1 May 2013 from VA, Subject: Request for Reconsideration of Proposed DES Rating Decision, dated 7 December 2012, in the case of [applicant] * memorandum, dated 7 May 2013, from the PEB, Subject: Request for DVA (Department of Veterans Affairs) Reconsideration of Rating Decision * DA Form 199-2 (Revised PEB Proceedings), dated 12 July 2013 * printout with VA Disability Ratings * VA Disability Benefits Questionnaires for wrist, neck (cervical spine), and back (thoracolumbar spine) conditions * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 14 October 2013 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 13 October 2005. He held military occupational specialty 11B (Infantryman). 2. He was deployed twice to Iraq, from 5 February 2007 to 15 April 2008, and again from 1 September 2009 to 22 May 2010. 3. At some point in early 2012, he was referred into the Integrated Disability Evaluation System (IDES) due to medical conditions incurred while on active duty. 4. His MEB NARSUM, dated 22 June 2012, indicated his degenerative joint disease (DJD) of the cervical spine failed medical retention standards, but the following conditions met medical retention standards: degenerative disc disease (DDD) of the lumbar spine; adjustment disorder, unspecified; hemorrhoids; and bilateral pes planus [flat feet]. 5. The applicant provides the first page of a DA Form 3947, dated 27 June 2012, which shows only his DJD of the cervical spine as failing medical retention standards. 6. On 9 July, and again through counsel on 27 July 2012, the applicant requested an IPR, specifically questioning the finding that his lumbar DDD met retention standards. He additionally wanted to have the findings reconsidered for his adjustment disorder, and asked that his knee and shoulder injuries be included. 7. A physician conducted an IPR and provided the following results on 21 August 2012, stating, in effect: * applicant's DDD of the lumbar spine failed medical retention standards * bilateral patellofemoral syndrome [mild to severe knee pain, often the result of contact between the back of the kneecap and the thighbone] should be added to the DA Form 3947 * right shoulder dysfunction should also be added to the DA Form 3947 8. Memorandum, dated 16 August 2012, subject: IPR for [applicant], from the Chief, Department of Behavioral Health, and addressed to the PEB, essentially affirmed the applicant's diagnosis of adjustment disorder, but noted this condition met medical retention standards. 9. Memorandum, dated 4 October 2012, subject: Response to [applicant] MEB Appeal Letter, prepared by the Deputy Commander for Clinical Services (DCCS), stated, in effect, he concurred with the following: * recommendations to show the applicant's lumbar DDD as failing medical retention standards * applicant's adjustment disorder, bilateral patellofemoral syndrome, and right shoulder dysfunction should be documented on the DA Form 3947; all three would be reflected as meeting medical retention standards 10. On 12 October 2012, an MEB determined the applicant failed medical retention standards for DJD of the cervical spine and lumbar DDD. He met retention standards for: external hemorrhoids; bilateral pes planus; right shoulder dysfunction; bilateral patellofemoral syndrome; and adjustment disorder with mixed anxiety and depression. 11. Memorandum, dated 26 October 2012, subject: Request for MEB Appeal [applicant], prepared by counsel, essentially asked the MEB results to be revised to show radiculopathy in his legs and arms. In addition, counsel stated, while the applicant felt he could cope in his current administrative position, he did not feel able to return to combat (implying his adjustment disorder should be considered as failing retention standards). 12. Memorandum, dated 30 October 2012, subject: Response to [applicant] Second MEB Appeal Letter, prepared by the DCCS, stated the radiculopathy in the applicant's upper and lower extremities were directly associated with his cervical DJD and lumbar DDD; they would not be separately listed. Regarding his adjustment disorder, it would be listed as meeting retention standards. 13. On 7 December 2012, the VA provided a proposed disability rating: a. For the medical conditions determined as failing medical retention standards, which were subsequently referred for VA rating by the PEB, and listed as DES conditions: * degenerative arthritis of the cervical spine (listed on the DA Form 3947 as DJD of the cervical spine), 10 percent * DDD of the lumbar spine, 10 percent b. Additional service-connected conditions: * tinnitus, 10 percent * bilateral pes planus, 0 percent * hemorrhoids, 0 percent * adjustment disorder with mixed anxiety and depression, 0 percent c. Radiculopathy was not shown as a separate disabling condition. 14. On 17 December 2012, an Informal PEB determined the applicant was physically unfit for continued military service, and recommended separation with severance pay for a combined disability rating of 20 percent. * this finding was based on the applicant's two conditions of cervical DJD and lumbar DDD * on 2 January 2013, the applicant nonconcurred with the PEB results; he requested a formal PEB and to have the VA reconsider his disability ratings * regarding radiculopathy, he stated although this condition was addressed, it was never added to his MEB/PEB 15. On 1 April 2013, the applicant appeared with counsel before a Formal PEB. Regarding the applicant's request to include radiculopathy as a separate condition, the PEB determined there was insufficient evidence to show this condition was unfitting, [and thus it would not be listed as a separate condition]. 16. Memorandum, dated 7 May 2013, subject: Request for DVA Reconsideration of Rating Determination, from the PEB to the applicant, stated, in effect, the VA reviewed the applicant's earlier VA rating decision and found no change was warranted. 17. DA Form 199-2, dated 12 July 2013, essentially affirmed the earlier PEB results, and corrected an entry on the DA Form 199-1, wherein it had stated the applicant's adjustment disorder with mixed anxiety and depression did not constitute a physical disability, per Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation). The correction stated, instead, the PEB determined his chronic adjustment disorder was not unfitting. On 15 July 2013, the applicant indicated he did not concur with the PEB's findings. 18. The applicant was honorably discharged due to a combat-related disability, on 14 October 2013. His DD Form 214 shows he completed 8 years and 2 days of net active creditable service. He received $43,320 in disability severance pay. 19. On 1 September 2016, the Army Review Boards Agency medical advisor provided an advisory opinion. a. Based on the ARBA medical advisor's review of the applicant's DOD electronic medical record, as well as records provided by the applicant, the medical advisor determined all of the applicant's medical conditions [to include radiculopathy] were duly considered during his separation processing. b. Radicular symptoms affecting both the upper and lower extremities, in addition to a summary of EMG/NGV results, are clearly noted in the MEB narrative summary. Neurophysiological (EMG/NCV) test results were also used in conjunction with clinical history, symptoms, and physical examination findings to establish a diagnosis. 20. On 6 September 2016, the Case Management Division provided the applicant a copy of the medical advisory opinion for review and comment. The applicant provided the following response: * after reviewing the advisory opinion, he noticed the information involving radiculopathy symptoms was recognized; he asserted, however, the advisory opinion was vague * he did agree his radiculopathy condition was noted within his medical records, but contends this condition created its own problems for him, in that he was unable to perform his primary duties as an Infantryman * he also was unable to participate in a third deployment because of constant numbness in his upper left extremities * further, he experienced random shooting pains whenever he was in a prone position, or wearing attachments to his helmet * after wearing heavy equipment during prolonged movement, he suffered from tremors and weakness in the lower extremities * based on the aforementioned radicular symptoms, he claims his radiculopathy should have been addressed separately, and given its own disability rating REFERENCES: 1. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. Chapter 4 provides guidance on referring Soldiers for evaluation by an MEB when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. 2. 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. 3. Directive-Type Memorandum (DTM) 11-015 (IDES), (in effect for a portion of the time and then, effective 5 August 2014, incorporated into DOD Manual 1332.18 (IDES)), prescribes policies and procedures for the processing of Soldiers with duty-related disabling medical conditions. a. IDES is a joint DOD and VA process by which it is determined if Soldiers who have been wounded, ill, or injured are fit for continued military service. A military medical provider refers a Soldier with disabling medical conditions to IDES, the VA provides the medical examinations, and, based on the VA's compensation and pension examinations, an MEB makes an assessment to identify those medical conditions that fail medical retention standards. All failing conditions are referred to a PEB for a fitness determination. b. Conditions found by the PEB to be unfitting are sent to VA for a disability rating. After the VA assigns disability rating(s), the results are finalized. Disposition can include the Soldier being returned to duty or separated (either with severance pay, if the total disability rating is 20 percent or less, or retired, for those cases where the disability rating is 30 percent or higher). 4. Title 10, U.S. Code, section 1201 (Regulars and Members on Active Duty for more than 30 day; Retirement), states the Secretary of the Army may retire a member if that member has a disability or disabilities with a rating of at least 30 percent. 5. Title 10, U.S. Code, section 1203 (Regulars and Members on Active Duty for more than 30 days; Separation), states the Secretary of the Army may provide severance pay to a member if that member has a disability or disabilities with a rating of less than 30 percent. DISCUSSION: 1. The evidence of record shows, throughout the IDES process, the applicant consistently sought to add radiculopathy as a separate condition. At each phase of IDES, it was determined the evidence with regard to his radicular symptoms, while clearly showing an association with his cervical DJD and lumbar DDD, was not strong enough to support separating those symptoms from his cervical DJD and lumbar DDD. In submitting his request to the Board, and apart from offering arguments, the applicant provides no new evidence to support his claim. 2. A review by the ARBA medical advisor further affirmed the findings made by his MEB, an Informal and Formal PEB, and the VA (both in its initial proposed disability rating, and later reconsideration). All concluded there was insufficient evidence to support separating the applicant's radicular symptoms from his two primary medical conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001417 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001417 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2