IN THE CASE OF: BOARD DATE: 29 November 2011 DOCKET NUMBER: AR20110010341 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. This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States (U.S.) Court of Federal Claims, Washington, DC. The Court directs the ABCMR to consider: * Whether the applicant's separation from active duty complied with applicable laws and policies * Whether the applicant had unfitting physical conditions in addition to neck pain at the time of his separation * Whether his disability rating was appropriate 2. The applicant filed a complaint with the U.S. Court of Federal Claims, Washington, DC, wherein he contended: * He did not receive a full and fair hearing regarding his physical disabilities * He was entitled to a 90-percent disability rating based on rheumatoid arthritis, pain disorder, spinal stenosis, and radiculopathy * He was wrongfully discharged from the Army and should have been medically retired 3. The Court provides an Administrative Record Index comprised of Tabs A through O, consisting of 179 pages. CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted Reserve service, the applicant was appointed as a second lieutenant Infantry (IN) officer in the U.S. Army Reserve (USAR) and executed an oath of office on 17 May 1990. He served in staff and leadership positions and attained the rank/grade of major (MAJ)/O-4 as a USAR Signal Corps (SC) officer on 1 July 2004. 2. In 1995, the applicant received a 40 percent disability rating from the Department of Veterans Affairs for rheumatoid arthritis, entitling him to VA compensation for this condition. He appealed this decision to the Board of Veterans Appeals and, in 2003, the VA raised his disability rating to 60 percent because of claimed "severely incapacitating monthly episodes during which the use of [his] hands and wrists was severely impaired." 3. His records contain a DD Form 2808 (Report of Medical Examination), dated 3 March 2004, wherein the applicant was found to be physically fit for retention. The examining physician checked block 74a (Examinee/Applicant) of this form to show the applicant was qualified for service. 4. In conjunction with this physical examination, the applicant filled out a DD Form 2807-1 (Report of Medical History), dated 3 March 2004, wherein, in pertinent part, he checked in the box marked "Have you ever had or do you have now:" * "Yes" in block 12a (Painful shoulder, elbow or wrist) * "No" in block 12b (Arthritis, rheumatism, or bursitis) * "No" in block 12c (Recurrent back pain or any back problem) * "No" in block 12d (Numbness or tingling) * "Yes" in block 12f (Foot trouble) * "No" in block 12g (Impaired use of arms, legs, hands, or feet) * "No" in block 12h (Swollen or painful joint(s)) * "No" in block 12i (Knee trouble) * "No" in block 13a (Frequent indigestion or heartburn) * "Yes" in block 14a (Currently in good health) * “No” in block  27 (Have you ever received, is there pending, or have you ever applied for pension or compensation for any disability or injury?) 5. In block 29 (Explanation of "Yes" Answers) he indicated block 12a was "Yes" due to "Fell on right shoulder; had surgery to remove the tip of the collarbone and two bone spurs." Block 12f was "Yes" due to a "bunion on the big toe of the right foot." 6. During the month of October 2004, he received a Service School Academic Evaluation Report (AER) which covered the rating period from 18 through 29 October 2004 while he was attending the Signal Officer Advanced Course. He received an "Achieved Course Standards" rating from his rater. This form also contains an entry which shows he passed the Army Physical Fitness Test (APFT) in October 2004. 7. During the month of March 2005, he received an Officer Evaluation Report (OER) which covered 4 months of rated time from 9 September 2004 through 6 January 2005 for the applicant's duties while serving as the brigade S-6. He received an "Outstanding Performance, Must Promote" and "Best Qualified" rating from his rater and senior rater, respectively. This form contains an entry which shows he passed the APFT in September 2004. 8. During the month of May 2005, he received an OER which covered 6 months of rated time from 7 January through 30 June 2005 for the applicant's duties while serving as a signal officer. He received an "Outstanding Performance, Must Promote" and "Best Qualified" rating from his rater and senior rater, respectively. This form contains an entry which shows he passed the APFT in June 2005. 9. He was mobilized as a member of his USAR unit in support of Operation Enduring Freedom (OEF) and he entered active duty on 6 September 2005 and was assigned to Fort McPherson, GA. 10. During the month of October 2006, he received an OER which covered 12 months of rated time from 1 July 2005 through 30 June 2006 for the applicant's duties while serving as the battle projection group team chief. He received an "Outstanding Performance, Must Promote" and "Best Qualified" rating from his rater and senior rater respectively. This form contains an entry which shows he passed the APFT in June 2006. 11. On 26 April 2007, by memorandum, U.S. Army Human Resources Command (HRC), St. Louis, MO, issued him a memorandum, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). This memorandum notified the applicant that he had completed the required years of service and he would be eligible for retired pay upon application at age 60. 12. During the month of July 2007, he received an OER which covered 12 months of rated time from 1 July 2006 through 30 June 2007 for the applicant's duties while serving as the battle book application team chief. He received an "Outstanding Performance, Must Promote" and "Best Qualified" rating from his rater and senior rater respectively. This form contains an entry which shows he passed the APFT in November 2006. 13. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 25 September 2007, stated that in January 2006 the applicant injured his 4th right toe while doing unit physical training (PT) as well as began to have bunion pain in his right foot. He was evaluated by a civilian podiatrist in Helena, AL. The date examined was 23 January 2006 and the injury was found to have been incurred in the line of duty. 14. A DA Form 2173, dated 24 September 2007, stated he was mobilized in September 2005. In April 2006, he began experiencing neck pain after performing bench presses during physical training. His pain became progressively worse and he was referred to the University of Alabama for evaluation. The date examined was 22 August 2006 and the injury was found to have been incurred in the line of duty. 15. A Follow-Up Evaluation, dated 22 August 2006, from The Work Place, Birmingham, AL, attached to the DA Form 2173, stated, in pertinent part, "[The Applicant] reports onset of upper back and neck pain after a prolonged rifle shooting session. He has aching pain radiating down his shoulders into his arms and intermittent tingling in his hands and fingers. He has not noticed any hand weaknesses. He had a nerve conduction test which showed no definite evidence of radiculopathy. He had polyphasic and giant motor units in the left triceps which could indicate chronic denervation-reinnervation process. The lack of findings in other muscles could not give a definitive diagnosis." 16. Another DA Form 2173, dated 24 September 2007, stated "He was mobilized in September 2005 with a prior shoulder injury and re-aggravated his shoulder injury due to carrying heavy gear." He was evaluated at the Martin Army Community Hospital, Fort Benning, GA. The date examined was 18 July 2007 and the injury was found to have been incurred in the line of duty. 17. Block 30 (Details of Accident-Remarks) of all three DA Forms 2173 contains the entry "Soldier injury/illness occurred while mobilized. He was not under my command on the date injury/illness occurred. He was assigned to Company B, Warrior Transition Battalion on 8 August 2007. I have no knowledge of events that occurred prior to that date." This form was dated and signed the applicant's immediate commander. 18. A DA Form 3349 (Physical Profile), dated 11 August 2008, shows the applicant was given a permanent profile of 3 for his upper extremities and he was recommended for a medical evaluation board (MEB)/physical evaluation board (PEB). 19. On 9 June 2008, an MEB convened and diagnosed him with cervicalgia, joint pain-shoulder region, left medial meniscus derangement, hallux valgus-right, restless leg syndrome, gastroesophageal reflux disease (GERD), migraines, hypercholesterolemia, pain disorder with anxiety and depression, and inflammatory arthritis. Only the cervicalgia was rated as medically unfitting for retention and the MEB recommended he be referred to a PEB. The applicant concurred with the MEB findings on 18 July 2008. 20. In the narrative summary of the MEB, completed on 9 June 2008, the board found, in pertinent part, the following: * Chronic cervicalgia - Early 2006 while exercising; no evidence of radiculopathy; experiences pain that interferes with daily function; medically unacceptable * Joint pain-right shoulder - dislocated collarbone in 2004; pain began in October 2006; tiny nondisplaced inferior labral tear; no further treatment needed; medically acceptable * Left knee pain - old injury without significant interference of duty; has P-2 running profile; medically acceptable * Hallux valgus-right - elective surgery to remove bunion in 2008; no further problems or limitations; medically acceptable * Restless leg syndrome - on Mirapex with good results; medically acceptable * GERD - on medication Acipex since June 2006, takes on an as needed basis; medically acceptable * Migraines - December 2005, takes Imitrex as needed, taken twice this year; headaches occur about every 3 months; prompt relief with Imitrex medically acceptable * Hypercholesterolemia - June 2006, initially controlled with diet, exercise, and weight loss; medically acceptable 21. On 10 June 2008, the applicant filled out a DD Form 2807-1 wherein, in pertinent part, he checked in the box marked "Have you ever had or do you have now:" * "Yes" in block 12a (Painful shoulder, elbow or wrist) * "No" in block 12b (Arthritis, rheumatism, or bursitis) * "Yes" in block 12c (Recurrent back pain or any back problem * "Yes" in block 12d (Numbness or tingling) * "Yes" in block 12f (Foot trouble) * "No" in block 12g (Impaired use of arms, legs, hands, or feet) * "Yes" in block 12h (Swollen or painful joint(s)) * "No in block 12i (Knee trouble) * "Yes" in block 13a (Frequent indigestion or heartburn) * "No" in block 14a (Currently in good health) * “No” in block 27 (Have you ever received, is there pending, or have you ever applied for pension or compensation for any disability or injury?) As an explanation for the "No" checked in block 14a the applicant wrote "I don't consider myself in good health due to my neck issues." 22. A DD Form 2808, dated 11 June 2008, shows he underwent a medical examination on that date. The examining physician checked "normal" for the physical evaluation of the applicant with the exception of block 36 (Spine, other musculoskeletal) wherein he checked "abnormal." As an explanation for block 36, the physician wrote "Pain to palpation over upper cervical spine and paraspinous muscles; pain over upper lateral trapezoid muscles to palpitation - all old." 23. On 28 July 2008, an informal PEB convened at Fort Sam Houston, TX, and confirmed his one unfitting disability. The PEB found the applicant's condition prevented him from performing basic Soldier functions and determined that he was physically unfit due to "spinal stenosis, cervical spine with mulit-level disc protrusion, C5-6 cord flattening and mild stenosis of the canal as well as C5-6 slight spinal canal stenosis. No motor neurologic deficits were found. Flexion 30 degrees, combined 250 degrees. Exam shows tenderness to palpation. Pain increases with repetition as evidenced by forward flexion of 30, 20, and 25 degrees (repeated measurements)." He was rated under the VA Schedule for Rating Disabilities (VASRD) code 5238, and assigned a 20 percent disability rating. The PEB recommended he be separated with severance pay and if the applicant retired, his retirement not be based on disability from injury or disability from injury or disease received in the line of duty as a direct result of armed conflict. 24. On 10 August 2008, he nonconcurred with the findings and requested a formal hearing. 25. On 19 September 2008, the formal PEB recessed its proceedings and asked an MEB to obtain: * A response to applicant’s claim the MEB did not adequately address all of his medical conditions affecting his ability to perform his duties and responsibilities * An evaluation of multiple joint pain from a Rheumatologist * A psychiatric evaluation based upon applicant’s treatment for pain disorder with anxiety and depression * A repeat range of motion measurements and evaluation of the cervical spine * An assessment of the conditions regarding medical retention standards 26. A DA Form 3947 (MEB Proceedings) shows the approving authority approved the board's findings and recommendations on 17 October 2008. On 22 October 2008, the applicant signed this form and checked block 24 (I have been informed of the approved findings and recommendations of the board) to indicate he "did not agree with the board findings and recommendations." 27. On 12 December 2008, a formal PEB convened at Fort Sam Houston, TX. The applicant appeared before the PEB and was represented by counsel. The PEB confirmed one unfitting disability of "spinal stenosis, cervical spine with mulit-level disc protrusion, C5-6 cord flattening and mild stenosis of the canal as well as C5-6 slight spinal canal stenosis," a 20 percent disability rating for VASRD code 5238, and recommended the applicant be separated with severance pay and if retired, his retirement not be based on disability from injury or disability from injury or disease received in the line of duty as a direct result of armed conflict. The board also found: a. The applicant's conditions of joint pain-shoulder region, left medial meniscus derangement, hallux valgus-right, restless leg syndrome, GERD, migraines, hypercholesterolemia panic disorder with anxiety and depression, and inflammatory arthritis were not unfitting. b. In response to the applicant's contention that he should be found unfit for arthritis and pain disorder, that both conditions were specifically addressed by the MEB and were found to be medically acceptable conditions. The preponderance of evidence supported that there were not significant limitations on the applicant's ability to perform in his area of concentration, there were no restrictions or limitations on his profile, and none were listed by his commander as being conditions that hindered his performance. c. In response to his contention that new range of motion (ROM) testing of his cervical spine warranted a rating of 30 percent, the average forward flexion was greater than 15 degrees and the combined range of motion was greater than 170 degrees and according to those measurements the highest rating was 20 percent. d. In response to his contention that his cervical radiculopathy should be found unfitting, that although nerve studies confirmed the diagnosis, the physical examination showed no evidence of upper extremity weakness or atrophy. The mere presence of a condition did not constitute a physical disability nor does it result on an automatic unfit determination. e. The applicant had no additional limitations from pain, fatigue, weakness, lack of endurance, or un-coordination following repetitive use. 28. On 22 December 2008, the applicant nonconcurred with the PEB findings and recommendations and submitted a rebuttal. 29. On 7 January 2009, by memorandum, the PEB informed the applicant that after careful consideration of his rebuttal they determined it contained no new objective medical or performance evidence which would warrant a change to the original findings. The PEB also stated the following: a. With regard to the ROM study for his neck, the PEB could find no requirement for the range of findings to correlate within five percent. His best active ROM was 20 degrees which merits a 20 percent rating in accordance with the VASRD. The block to document additional loss on the form used to record his original ROM findings was left blank by the provider indicating no additional loss was found. Therefore, the preponderance of evidence indicated his current level of disability was between 16 and 30 degrees forward flexion which was correctly rated at 20 percent. b. With regard to his conditions of inflammatory arthritis and pain disorder, the PEB noted the MEB found these conditions to meet medical retention. There was no compelling evidence to show those conditions interfered with his ability to perform his military duties. The applicant's argument that an examination for rheumatoid arthritis be conducted during a flare episode and ROM studies be performed for the affected joints was immaterial because the condition was not unfitting and therefore would not be considered for a rating. c. With regard to his mental health, the PEB did not find it to be duty limiting at the present time. Although it may have temporarily interfered with his duty performance in the past, the preponderance of evidence showed it was being successfully treated. d. With regard to his radiculopathy, the PEB affirmed its finding that this did not interfere with his duty appointment and that this finding was not arbitrary and capricious because there was no weakness in his upper extremities. e. His contention that he was denied access to an independent medical advisor as required by the 2008 National Defense Authorization Act (NDAA) and the DOD Policy Memorandum on Implementing Disability-Related Provisions of the NDAA was a medical treatment facility issue and would not be addressed by the PEB. However, the PEB noted that his MEB was initiated on 9 June 2008 and on 18 July 2008 he indicated he agreed with the findings and was aware of and involved in the preparation of his case file for presentation to the PEB. There was no evidence the applicant was "denied" access to an independent medical advisor which could be his primary care manager. 30. On 28 January 2009, the applicant submitted his election to transfer to the Retired Reserve in lieu of receiving severance pay. 31. On 2 February 2009, the U. S. Army Physical Disability Agency (USAPDA) approved the PEB on behalf of the Secretary of the Army. 32. Orders Number 036-2215, dated 5 February 2009, issued by Headquarters, U.S. Army Infantry Center, released him from active duty (REFRAD) not by reason of physical disability. 33. On 5 May 2009, the applicant was honorably REFRAD by reason of completion of required active service and he was transferred to the USAR Control Group (Retired Reserve). He completed 3 years and 8 months of creditable active service during this period. At the time, he had 1871 active duty points (the equivalent of 5.12 years) and approximately 1140 inactive duty and membership points (about 3.12 years). 34. On 10 December 2010, the applicant filed a claim in the U.S. Court of Federal Claims against the U.S. Army for military disability retirement pay and benefits due him for his line of duty injuries suffered while on active duty from the Army due to the failure to provide him a full and fair hearing of his physical disabilities. 35. On 11 May 2011, the U.S. Court of Federal Claims remanded the case to the ABCMR. 36. The Court provides documents from the VA which show: a. In 1995, the applicant received a 40 percent rating from the VA for arthritis. He appealed the rating to the Board of Veterans Appeals (BVA) and his case was heard by the Board in 1998 and 2001. In 2003, the BVA found in favor of his claim that his arthritis caused "severely incapacitating monthly episodes during which his hands and wrists were severely impaired." His rating was increased to 60 percent for seronegative rheumatoid arthritis. b. In 1999, he was found by the VA to have neck pain "related to an automobile accident and/or arthritis." The record does not indicate if he received a rating by the VA for neck pain or if he was receiving VA compensation for neck pain. 37. In the processing of this case, a staff advisory opinion was obtained from the Legal Advisor, USAPDA. The advisory official noted that: a. The July 2008 MEB contained several procedural errors. Although the applicant initially fully concurred with the findings and recommendations of the MEB, he nonconcurred and requested an independent medical review on 22 October 2008. The MEB failed to respond to his request as required. It appears to have been simply an oversight likely due to the MEB not being aware new procedures had recently been enacted regarding independent medical reviews. b. The applicant contended his diagnosis of inflammatory arthritis should have been found not to meet medical retention standards due to the frequent monitoring required based on the medication he was prescribed. The medication carried a recommendation for monitoring every 3 months and testing his blood four times a year that would not hinder or limit the military from monitoring his condition and would not prevent him from performing his duties. This condition was not listed on his physical profile as requiring duty limitations and was properly considered to meet medical retention standards. Any additional review by the MEB would not have changed their opinion nor would it have resulted in any change to the PEB's findings. c. The physical examination the applicant received for his arthritic condition was sufficient for the PEB to determine if he was fit or unfit for continued military duty. In addition, the examination noted the applicant had stated his condition had existed for years, and based on his VA claim it appears to have started before 1995. The examination revealed minimal pain and tenderness on motion of the wrist, elbows, knees, and ankles but did not indicate any limitation of a normal ROM. The report clearly indicated minimal physical findings and the commander's statements indicated the applicant could work a full eight hour day with his only discomfort related to his being uncomfortable while seated and this resulted in only his cervical condition being found to be unfitting. d. His overall arthritic condition was not considered so severe as to require any complete joint/body limitations. However, even if the PEB found his arthritic condition to be unfitting, the PEB would have found it to not be compensable as it was not incurred while he was entitled to basic pay, the condition existed prior to active duty, was not permanently aggravated by any military duties, and the condition naturally progressed to its present condition. The PEB found his arthritic condition was not unfitting and carefully and fully provided the basis for that finding in their 7 January 2009 response to his rebuttal. e. The applicant's condition of pain disorder was fully considered by the MEB and reviewed by a psychologist and psychiatrist. Although it was determined the pain disorder was a valid diagnosis, it was also opined that his condition did not rise to the level that it did not meet medical retention standards. The condition was found not to need any limitations of duty, was not included on the restrictions of his physical profile, and was opined not to result in any significant interference of his assigned military duties. It is clear his cervical condition caused him pain and discomfort and resulted in limitations of the performance of his duties. His diagnosis of pain disorder was related to the pain he was experiencing; however, the medical experts properly opined his main problem was the actual cervical pain. His commander indicated the applicant's problem was his inability to be comfortable while sitting for 8 hours. Nonetheless, he was able to complete 8 hour work days and did acceptable work when the pain was controlled. f. His condition of pain disorder, although it caused him some irritability, depression, and stress, did not rise to an independent level of interfering with his assigned duties so as to not meet medical retention standards. Any additional review of the retention issue by the MEB would not have resulted in any change to their findings nor would it have resulted in any change to the PEB's findings. Their findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were within the sound discretion afforded a board of officers. The fact the applicant disagrees with those findings does not result in evidence the PEB's findings were in error. g. The PEB did not find the applicant's radiculopathy unfitting as the condition was considered to meet medical retention standards, was not listed on his physical profile as requiring limitation of duties, and the physical findings did not support that this condition hindered his abilities to perform his assigned duties. Their findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were within the sound discretion of the board. h. The PEB properly rated the applicant's cervical neck pain at 20 percent. The first four cervical forward flexion ROM measurements were taken in June 2008 were 30, 25, 20, and 22 degrees (rounded down to 20). The applicant agreed with those findings. The second four ROM measurements taken in October 2008 were 10, 15, 20, and 18 (rounded up to 20). For the VASRD rating of 30 percent a limitation of 15 degrees or less is required and of the eight measurements taken only two would qualify as 30 percent. All other measurements would qualify as a 20 percent rating as found by the PEB. There is no requirement to rate based on any one lowest ROM measurement. A finding based upon the totality of the evidence is authorized and acceptable when clearly supported by the facts. The PEB determined the totality of the evidence best supported that the overall ROM limitations of the neck were in excess of 15 degrees and thus supported the 20 percent rating. Even if using the reasonable doubt standard, the PEB's result was still supportable and within the sound discretion of the board. 38. In conclusion, the advisory official opined that although the MEB contained processing errors the applicant's separation from active duty complied with applicable laws and policies as such processing errors did not result in any material errors regarding the ultimate findings of the PEB. The PEB findings were not arbitrary or capricious, were within the sound discretion of the board, and were not in error. The applicant did not have any unfitting physical conditions in addition to his neck condition at the time of his separation and he received an appropriate disability rating. He recommended no changes to the applicant's military records. 39. In a response to the advisory opinion, dated 9 July 2011, the applicant defers to counsel. Counsel states, in pertinent part: a. The advisory opinion admitted the MEB was flawed and did not meet the requirements of the law but stated this error was a "harmless error." The lack of information required for inclusion in the MEB impacted the fitness decision and rating determination by the PEB. b. The advisory opinion stated the applicant's inflammatory arthritis did not fail retention standards. However, that standard states "Chronic or recurring episodes of arthritis causing functional impairment interfering with successful performance of duty [does not meet medical retention standards]." The applicant's commander stated, in pertinent part, "When his condition is obviously aggravated, the Soldier's attention and focus are clearly diverted to relieving his pain and remaining as comfortable as possible." c. The advisory opinion argued the applicant's arthritic condition may not be in the line of duty and his condition had existed for many years based on his VA claim (1995) and the applicant's statement. Army regulations state if members with over 8 years of active service have pre-existing conditions those conditions shall be deemed to have been incurred in the line of duty. As of 18 July 2008, the applicant accrued 2612 military retirement points. This in addition to the additional 291 days of service to 5 May 2009, calculate to a total of 8.06 years of service and would be compensable. d. The advisory opinion's statement stated the applicant's pain disorder did not rise to an independent level of interfering with his assigned duties. However, the amended law states "In making a determination of the rating of disability of a member of the Armed Forces all medical conditions shall be taken into account, whether individually or collectively, that render the member unfit to perform the duties of the member's office." This means his pain disorder was separately unfitting, or in concert with his cervical condition, unfitting. e. The advisory opinion stated the average of eight ROM measurements warranted a 20 percent rating. However, the ROM measurements taken in June 2008 should not be considered and of the measurements taken in October 2008, the first two supported a 30 percent rating while the second two supported a 20 percent rating. As two ratings supported a 30 percent rating, this is the rating that should have been awarded. f. The advisory opinion’s statement that the applicant's radiculopathy was not unfitting and did not fail retention standards is erroneous. This ignores the fact that a rating may be assigned for wholly sensory clinical manifestations for each Axis I and Axis II diagnosis, i.e. pain. The applicant testified radiculopathy caused him to have problems with sleep, kept him from being able to carry items in his hand, and prevented him from effectively firing a weapon. His commander stated the applicant had to be careful about the position he sits in so as to not cause pain or numbness and results in him having to switch positions often and to stand up regularly. Therefore, the PEB should have rated this condition at 20 percent disabling. 40. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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. 41. Army Regulation 635-40 further 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. The Army must find that a service member is physically unfit to reasonably perform his duties and assign an appropriate disability rating before that service member can be medically separated or retired. 42. Army Regulation 40-501(Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. 43. In most circumstances, a member is not entitled to disability retired or severance pay under the provisions of 10 U.S. Code (USC) 1201, 1202, 02 1203 based upon a disability incurred prior to a member becoming entitled to basic pay (e.g. a preexisting condition). Title 10, USC 1207a provides an exception if the Soldier has at least eight years of active service. In those situations, the preexisting condition is deemed to have been incurred while the member was entitled to basic pay and shall be so considered for purposes of determining whether the disability was incurred in the line of duty. 44. Title 10, USC, section 101(d) defines “active service” as service on active duty or full-time National Guard duty. "Active duty" means full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty. 45. Title 10, USC, section 101(d) defines "inactive duty training" as: * Duty prescribed for Reserves by the Secretary concerned under 37 USC 206 (setting forth rules for participation in and payment for periods of inactive duty for training) * Special additional duties authorized for Reserves by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows that despite the applicant indicating in March 2004 and June 2008 that he did not have a history of arthritis, had no issues with his hands, and had never even applied for any disability compensation, he had been receiving VA compensation for arthritis since as early as 1995. Prior to his MEB in June 2008, he annotated his DD Form 2807-1 to show he did not consider himself in good health "due to neck issues." There was no mention of arthritic symptoms or any other condition that contributed to his "not being in good health." He was not found to have any duty limitations due to arthritis. His OERs from October 2004 through June 2007 show his duty performance was always rated as "Outstanding" and he regularly took his semi-annual APFT through November 2006. This supports the PEB's finding that any inflammatory arthritis was not unfitting. 2. In addition, the PEB correctly found this was a pre-existing injury, was not incurred while on active duty, and would not have been compensable even if it was unfitting. Counsel argues the applicant had over 8 years of active service so a pre-existing condition should be considered compensable. However, the applicant had the equivalent of just over 5 years of active service or active duty. His inactive service and membership points do not count in determining whether he had the required 8 years of active service for purposes of 10 USC 1207a. Accordingly, the applicant is not entitled to disability compensation for a preexisting condition. 3. The evidence of record shows the applicant's pain disorder was fully considered by the MEB and PEB and was reviewed by a psychologist and psychiatrist. It was found to be fitting and not to need any limitations of duty. The pain and discomfort he experienced which caused him to be careful about the position he sat in so as to not cause pain or numbness was determined to be caused by his cervical condition. In addition, this determination was supported by the applicant when he annotated the DD Form 2807-1 to show he did not consider himself in good health "due to neck issues." Therefore, this condition was appropriately not found to be compensable. 4. The evidence of record shows when the MEB found the applicant's condition of chronic cervicalgia as unfitting the MEB also reviewed medical records which showed there was no evidence of radiculopathy. The PEB found his radiculopathy was not listed on his physical profile as requiring limitation of duties, the physical findings did not support that this condition hindered his abilities to perform his assigned duties, and they appropriately did not find this condition as unfitting as the condition was considered to meet medical retention standards. Therefore, this condition was appropriately not found to be compensable. 5. The evidence of record clearly shows the PEB properly rated the applicant's cervical neck pain at 20 percent. The PEB's consideration of both the ROM measurements taken in June and October 2008 was authorized and supported by the facts. Of the eight measurements taken only two would qualify as 30 percent. All other measurements would qualify as a 20 percent rating as found by the PEB. The PEB appropriately determined the totality of the evidence best supported that the overall ROM limitations of the neck were in excess of 15 degrees and thus supported the 20 percent rating. 6. Counsel argued the advisory opinion admitted the MEB was flawed; however this is not accurate. The advisory opinion only stated the MEB contained several procedural errors. After a complete review of the evidence of record, it is evident that any procedural errors on the part of the MEB did not impact any decision made by the PEB and any additional independent medical review would not have changed the rating received by the applicant. 7. The existing evidence of record confirms the applicant’s separation from active duty was proper and in accordance with applicable laws and policies. The evidence of record also shows that applicant repeatedly made false official statements regarding his arthritis and his VA disability claim such that his credibility was and is greatly compromised, particularly with respect to aspects of his alleged conditions which depend on the patient’s honest report and effort, such as pain and ROM. The MEB/PEB considered his comments, testimony and arguments, accessed his credibility, and rightly relied primarily on the objective evidence available. 8. The evidence of record and the independent evidence provided by the applicant and counsel fail to show he had any unfitting physical conditions besides his neck condition at the time of his separation from active duty. The evidence of record and the independent evidence provided by the applicant and counsel fail to provide sufficient evidence of a compelling nature that would support a conclusion that the 20 percent rating he received by the PEB was unjust or in error. 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. _______ _ 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) AR20110010341 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110010341 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1