IN THE CASE OF: BOARD DATE: 5 October 2023 DOCKET NUMBER: AR20220009076 APPLICANT REQUESTS: correction of her DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to add a disability rating of 20% for Left Upper Extremity Paresthesia due to Cervical Spine Degenerative Disc Disease. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Power of Attorney * Legal Brief * DD Form 214 (Certificate of Release or Discharge from Active Duty), 27 February 2011 * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), 10 September 2010 and narrative Summary * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), 19 October 2010 * DA Form 7652 (Physical Disability Evaluation System (PDES) Commander’s Performance and Functional Statement) * DA Form 3947 (Physical Profile) * Department of Veterans Affairs Compensation and Pension Examination, 12 August 2010 * VA rating Decision, 2 November 2010 * 131 Fed. Cl. 333, United States Court of Federal Claims, MCCORD v. The United States of America, No. 16–310C, (Filed: April 19, 2017) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states despite the MEB and VA specifically noting that the C5-C6 disc replacement condition resulted in left upper extremity paresthesia, which the VA found to be 20% disabling, the PEB failed entirely to mention this symptom or include it as a symptom of the C5-C6 disk replacement condition. 3. The applicant’s counsel/Power of Attorney states the applicant is seeking a correction of military records to remove error and injustice. She was separated from active duty on 27 February 2011, due to disability, at a combined rating of 10%. She is requesting her records be corrected to reflect a higher combined disability rating of no less than 30% and that she retroactively be awarded full medical retirement to her military separation date. The additional 20% is for Left Upper Extremity Paresthesia due to Cervical Spine Degenerative Disc Disease (DC 8510). a. The MEB identified her condition as “Cervical spondylosis and C6 herniation Status post C6 disc replacement” and noted that this condition did not meet medical retention standards. Based upon the July 2010 C& P examination report, the VA proposed a rating of 10% for cervical spine degenerative disc disease, residuals of C5- C6 disc replacement, and 20% for left upper extremity paresthesia due to cervical spine degenerative disc disease. On 10 October 2010, the PEB adopted the VA’s findings. The PEB found the applicant’s C5-C6 disc replacement to be unfit for military service. On the DA Form 199, the PEB listed the unfit condition as “C5-6 Disc Replacement (MEB DX 1).” The form also noted that “MEB DX 2-6 (Left Medial Epicondylitis Left Ankle Sprain Migraine Headaches Endometriosis and Left Ovarian Cyst) Meet Retention Standards.” The disability of left upper extremity paresthesia due to cervical spine degenerative disc disease was not listed or otherwise discussed on DA Form 199. On 27 February 2011, the applicant was separated from the Army with severance pay. b. Counsel argues that despite the MEB and VA specifically noting that the C5-C6 disc replacement condition resulted in left upper extremity paresthesia, which the VA found to be 20% disabling, the PEB failed entirely to mention this symptom or include it as a symptom of the C5-C6 disk replacement condition. c. When the PEB fails to address and adopt all VA ratings for an unfitting condition during the IDES process, error has occurred. Since the PEB failed to consider and evaluate left upper extremity paresthesia associated with the C5-C6 disc replacement condition, clear and unmistakable error is present. It is for this reason that the applicant asks the Board to correct this error by issuing the correction and assignment of the below rating and affording the applicant a full medical retirement from the armed forces: 4. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 3 September 1997 and held military occupational specialties 42A, Human Resources Specialist, and 31B, Military Police. b. She served through multiple reenlistments, in a variety of stateside or overseas assignments, including Iraq from September 2004 to January 2005, and she attained the rank of staff sergeant (SGG)/E-6. c. Her narrative summary shows she complained of intermittent left-sided neck pain stiffness, soreness, spasm, and shooting pain that extends from her neck to her left trapezius/shoulder. She has numbness and tingling of her left ring and little fingers. There is no weakness but prior to her surgery she was dropping things. The pain is graded as a 7/10 and occurs twice daily. It lasts for about 2 hours. The pain is brought on by sleeping the wrong way holding her arms up or keeping her neck in a static position. Doing sit-ups or crunches with her hands behind her neck, or doing pushups brings on the pain. Any jarring or impact activity brings the pain. She attempts to alleviate the pain by stretching her neck, applying heat, and taking her Robaxin, Lortab and Gabapentin. d. On 10 September 2010, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found she was diagnosed with the conditions listed below and recommended her referral to a PEB. * Cervical spondylosis and C6 herniation. SIP C6 disc replacement (Medically unacceptable in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness * VA Diagnosis S/P C5-C6 disk replacement, residual * Left medial epicondylitis (Medically acceptable) * Left ankle sprain (Medically acceptable) * Migraine headaches (Medically acceptable) * Endometriosis (Medically acceptable), VA Diagnosis History of endometriosis; improved after hysterectomy * Left ovarian cyst (Medically acceptable), VA Diagnosis Recurrent ovarian cysts, currently under evaluation e. On 27 September 2010, after having been counseled, the applicant indicated she reviewed the contents of the MEB, agreed with the findings and recommendations, and authenticated the DA Form 3947 (MEB Proceedings) with her signature. f. On 19 October 2010, an informal PEB convened and found her condition prevented her from performing the duties required of her grade and military specialty and determined that she was physically unfit. The PEB did not recommend a disability rating. It indicated that her disposition is pending VA rating: (1) The PEB listed the C-5-C6 disc replacement: This is unfitting because she cannot tolerate the wear of her MP gear, nor can she turn her head sufficiently to be able to perform adequately as an MP. She also has difficulty sitting at a desk job for any period of time. She first had problems with her neck in 2001 but they worsened in 2007 leading to the C5-6 disc replacement in January 2008. Although she's had some relief it is not enough to enable her to return to her duties. (2) The PEB considered her other diagnoses (left medial epicondylitis, left ankle sprain, migraine headaches, endometriosis, and left ovarian cyst). These conditions met retention standards and were found by the PEB not to be unfitting either independently or in combination with any other conditions as a review of her case file supports that they are not a significant limitation on her ability to perform primary MOS. g. The VA issued a VA Rating decision on 10 November 2010. The rating decision proposed ratings for (military) disability evaluation system and rating for service- connection. (1) For Disability Evaluation System (DES) purposes, a 10 percent evaluation is proposed for cervical spine degenerative disc disease, residuals of C5-C6 disc replacement with scar. For purposes of entitlement to Department of Veterans Affairs (VA) benefits, it is proposed to establish service connection for cervical spine degenerative disc disease, residuals of C5-C6 disc replacement with scar as directly related to military service with a 10 percent evaluation. (2) For purposes of entitlement to Department of Veterans Affairs (VA) benefits, it is proposed to establish service connection for left upper extremity paresthesia due to cervical spine degenerative disc disease as directly related to military service with a 20 percent evaluation. (3) For purposes of entitlement to Department of Veterans Affairs (VA) benefits, it is proposed to establish service connection for residuals of endometriosis with hysterectomy (also claimed as pelvic pain) as directly related to military service with a 30 percent evaluation. (4) For purposes of entitlement to Department of Veterans Affairs (VA) benefits, it is proposed to establish service connection for ovarian cysts with pelvic pain as directly related to military service with a 0 percent evaluation. (5) For purposes of entitlement to Department of Veterans Affairs (VA) benefits, it is proposed to establish service connection for left wrist strain as directly related to military service with a 10 percent evaluation. (6) For purposes of entitlement to Department of Veterans Affairs (VA) benefits, it is proposed to grant entitlement to special monthly compensation based on anatomical loss criteria being met. (7) For purposes of entitlement to Department of Veterans Affairs (VA) benefits, entitlement to service connection for left elbow medial epicondylitis and ulnar collateral ligament sprain is not proposed. (8) For purposes of entitlement to Department of Veterans Affairs (VA) benefits, entitlement to service connection for left ankle sprain is not proposed. h. On 27 February 2011, the applicant was discharged from active duty under the provisions Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability with entitlement to severance pay. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 13 years, 5 months, and 25 days of net active service this period. The Remarks Block of her DD Form 214 lists $87,962.80 in severance pay. 5. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an additional medical condition be determined to have been unfitting for continued military service and that her disability discharge disposition be changed from separated with disability severance pay to permanent retirement for physical disability. She states: “DoD Disability Rating of 20% for Left Upper Extremity Paresthesia due to Cervical Spine Degenerative Disc Disease (DC 8510). Despite the MEB and VA specifically noting that the C5-C6 disc replacement condition resulted in left upper extremity paresthesia, which the VA found to be 20% disabling, the PEB failed entirely to mention this symptom or include it as a symptom of the C5-C6 disk replacement condition.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Her DD 214 for the period of Service under consideration shows she entered the Regular Army on 3 September 1997 and was discharged with $87,952.80 of disability severance pay on 27 February 2011 under provisions in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006). d. A Soldier is referred to the IDES when they have one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldier’s referred medical conditions in section I the VA/DOD Joint Disability Evaluation Board Claim (VA Form 21-0819). The Soldier, with the assistance of the VA military service coordinator, lists all conditions they believe to be service-connected disabilities in block 8 of section II or a separate Statement in Support of Claim (VA form 21-4138). e. Soldiers then receive one set of VA C&P examinations covering all their referred and claimed conditions. These examinations, which are the examinations of record for the IDES, serve as the basis for both their military and VA disability processing. All conditions are then rated by the VA prior to the Soldier’s discharge. The physical evaluation board (PEB), after adjudicating the case sent them by the medical evaluation board (MEB), applies the applicable VA derived ratings to the Soldier’s unfitting condition(s), thereby determining their final combined rating and disposition. Upon discharge, the Veteran immediately begins receiving the full disability benefits to which they are entitled from both their Service and the VA. f. The applicant was referred to the IDES for “Cervical Disc Disease Status Post Cervical Fusion” on 21 July 2010. The applicant claimed seven additional conditions on her VA/DOD Joint Disability Evaluation Board Claim (VA Form 21-0819), none of which was related to a neurological condition / radiculopathy in her left upper extremity. g. Her MEB narrative summary shows the applicant’s left upper extremity neurological symptoms after her surgery were mild and limited to “numbness and tingling of her left ring and little fingers.” It states: ”She was referred to Neurology for electrodiagnostic testing to rule out a radiculopathy. The EMG results were "normal study.” Her symptoms worsened and in January 2008 she underwent C5-C6 prosthetic disc replacement in Springfield, Missouri. She stated that she did have significant improvement with regard to the tingling sensation in the left arm and her strength improved but the pain did not improve as much. She is presently on gabapentin, Robaxin, Naprosyn. She has been on profile for approximately 2 years and is unable to resume the regular duties of her MOS [military occupational specialty].” h. The provider documented a normal neurological examination: “Motor: There is no evidence of atrophy or fasciculation. Strength is 5/5 in all 4 extremities. She has 5/5 grip, finger abduction/adduction, and thumb opposition. Sensation: Intact to pinprick and light touch in all 4 extremities and trunk. DTRs. Biceps, triceps, brachioradialis, knee jerk, and ankle jerk are 2+ bilaterally.” i. The applicant’s left upper extremity symptoms as described in her 28 July 2010 VA Compensation and Pension Examination: “Again reiterates that the paresthesia has grossly improved postoperatively but does have periods of intermittent tingling sensation.” j. The final MEB diagnosis was “Cervical spondylosis and C6 herniation. Status post C6 disc replacement. This Does Not Meet Medical Retention Criteria IAW AR 40-501, Chapter 3-39e.” There was no diagnosed neurological condition of the left upper extremity. k. Paragraph 3-39e of AR 40-501, Standards of Medical Fitness (14 December 2007), addressed herniation of an intervertebral disc as there is not specific paragraph for cervical disc replacement. It states the condition fails medical retention standards for “More than mild symptoms following appropriate treatment or remedial measures, with sufficient objective findings to demonstrate interference with the satisfactory performance of duty.” l. The applicant’s Medical Evaluation Board Proceedings (DA Form 3947) show the medical evaluation board (MEB) determined her “Cervical spondylosis and C6 herniation S/P C6 disc replacement” failed the medical retention standards of AR 40- 501, Standards of Medical Fitness. They determined five other conditions met medical retention standards. There is no mention of a left upper extremity neurological condition by the MEB. On 29 September 2010, the applicant agreed with the MEB’s findings and recommendation and her case was forwarded to a physical evaluation board (PEB) for adjudication. m. On 19 October 2010, the applicant’s informal PEB determined her “C5-6 Disc Replacement” to be the sole unfitting for continued Service: C5-6 disc replacement. This is unfitting because she cannot tolerate the wear of her MP gear nor can she turn her head sufficiently to be able to perform adequately as an MP. She also has difficulty sitting at a desk job for any period of time. She first had problems with her neck in 2001 but they worsened in 2007 leading to the C5-6 disc replacement in January 2008. Although she's had some relief it is not enough to enable her to return to her duties. (MEB Dx 1, NARSUM) n. They determined the five remaining conditions were not unfitting for continued service. The PEB then applied the VA derived rating of 10% to her disability and recommended she be separated with disability severance pay. Review of the 4 November VA Ratings decision shows this was the rating provided by the VA for her military disability: “We are proposing that the following unfitting disabilities are related to your military service, i.e., service connected: Cervical spine degenerative disc disease, residuals of C5-C6 disc replacement with scar: 10% The proposed combined rating for your unfitting disabilities is 10%.” o. The VA Rating Decision’s ratings for her claimed conditions included a 30% rating for “Residuals of endometriosis with hysterectomy,” a 20% rating for “Left upper extremity paresthesia due to cervical spine degenerative disc disease,” a 10% rating for “Left wrist strain,” and a 0% rating for “Ovarian cysts with pelvic pain.” The VA stated for their 20% rating of the left upper extremity paresthesia they classified as “mild:” “At the VA exam you stated that the left arm paresthesia has improved postoperatively but you still have periods of intermittent tingling sensation. Treatment for your neck and arm includes Robaxin, Lortab, and Gabapentin. On neurological exam, motor strength testing of the upper and lower extremities indicated no motor weakness and was measured at 5/5. There were no objective sensory abnormalities to the upper extremities demonstrated on exam, though there are intermittent sensations of paresthesia to the left upper extremity. As discussed above, you were diagnosed with status post C5-C6 disc replacement with residual pain, intermittent spasms, and mild residual paresthesia to the left upper extremity.” p. Because the PEB had found none of these additional conditions to be an unfitting disability, they were not part of her military disability rating. q. On 19 November 2010, after being counseled on the board’s findings by her PEB liaison officer (PEBLO), she concurred with the PEB’s findings and waived her right to a formal hearing. r. There was no error on the part of the applicant’s PEB: The PEB neither commented on nor adjudicated a radiculopathy because the MEB did not list it as a condition for consideration on their DA From 3947. That aside, if the condition would have been adjudicated, it very likely would have been found not unfitting as the neurological symptoms were limited to “periods of intermittent tingling sensation,” and there is no evidence the condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to her discharge. s. There is no evidence the applicant had any additional duty incurred medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to her discharge. Thus, there was no cause for re-referral to the Disability Evaluation System. t. The DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. u. Given no evidence of error or injustice, it is the opinion of the ARBA Medical Advisor that neither an increase in her military disability rating nor a referral of her case back to the DES is warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that there was no error of omission on the part of the PEB, noting that the evidence shows the paresthesia rated by the VA was not of sufficient severity to limit her ability to perform her duties prior to her discharge. Based on a preponderance of the evidence, the Board determined her Disability Evaluation System processing was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, establishes the Army disability system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 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. 3. Under IDES (was a pilot program at the time of her separation), the VA examines the Soldier and rates all identified conditions. The PEB then determines, based on all available evidence, which conditions render a Soldier unfit for continued military service. The PEB applies the rating assigned by the VA for each unfitting condition and recommends a combined rating and the appropriate disposition (generally separation with disability severance pay or retirement). 3. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009076 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1