IN THE CASE OF: BOARD DATE: 17 March 2011 DOCKET NUMBER: AR20100021424 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 correction of her disability rating to include her lower back pain. 2. The applicant states that disability for her lower back was not included in the rating at the time of her discharge in 1986. She believes she would have maintained her medical retirement if her back condition was considered. Her lower back pain could change her overall disability percentage and impact her entitlement to a military disability pension. 3. The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty) and various chronological records of medical care. CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's records show she enlisted in the Regular Army on 12 October 1982 and held military occupational specialty (MOS) 81B (Technical Drafting Specialist). She was assigned to the 260th Quartermaster Battalion, Fort Stewart, GA. 3. The applicant submitted various chronological records of medical care, dated in 1982 and 1983, that show she was seen at Fort Dix, NJ, and Fort Belvoir, VA, for low back pain. She was given medications in each case and she was referred to physical therapy and/or assigned temporary physical profiles. However, there is no indication she was assigned a permanent physical profile for her back pain or that this condition rendered her physically unfit. 4. Her records show she was issued a permanent physical profile on 8 December 1983 that indicated she had a medical condition which may have a limiting factor in performing her duties in MOS 81B. However, she indicated that she believed she could perform the duties required of her MOS and grade in a combat environment worldwide. Her commander reviewed her service records together with her physical profile and certified the applicant was able to satisfactorily perform all the duties required of her MOS and grade. 5. On 31 May 1984, subsequent to several visits to the troop medical clinic and multiple surgeries in both knees, she was issued a permanent physical profile. Her profile assigned her the physical limitations of no squatting or deep knee bends (may do so with assistance) and running or walking at her own pace (may substitute walk, swim, or bicycle for the fitness test). Based on this physical profile, she was referred to an MOS Medical Retention Board (MMRB). 6. On 31 January 1985, the applicant's immediate commander submitted an evaluation of the applicant's duty performance. He indicated her physical limitations had detracted from her job performance on many occasions. Additionally, she had been on the Army weight control program (AWCP) since 1 May 1984 and had not made satisfactory progress. The immediate commander had doubts about her ability to sustain herself in a field environment for any period of time. 7. On 4 February 1985, the applicant's battalion commander concurred with the immediate commander's assessment. He stated the applicant was not considered an asset to the organization. The physical limitations imposed by her profile made it difficult for her to perform as a Soldier. Additionally, she was considered physically unreliable, having reported to sick call 21 times since October 1984 due to numerous ailments. She had been enrolled in the AWCP for 9 months and had not made any progress. 8. On 27 February 1985, she was evaluated by an MMRB concerning her abilities to perform the physical requirements of her MOS. The MMRB determined the limitations imposed by her permanent profile were so prohibitive they precluded her retraining or reclassifying into any MOS in which the Army had a requirement. The MMRB recommended her case be forwarded to a physical evaluation board (PEB). 9. On 28 March 1985, the MMRB President stated that based on the findings that the applicant was unable to perform the duties of her MOS and the finding that her permanent medical condition prevented her from performing the full range of physical tasks required of her MOS in a worldwide field environment, he recommended that she be referred to the Army's Physical Disability Evaluation System (PDES). The convening authority approved the MMRB's findings and recommendations on 26 April 1985. 10. On 21 July 1985, the applicant underwent a thorough medical examination that focused on her knee and right wrist problems. Her narrative summary (NARSUM) shows she related a history of having had two surgeries on her right knee and two surgeries on her left knee, both prior to enlistment. a. She had medial meniscectomies on her right and left knees. She underwent an arthroscopy on 15 September 1983 at Fort Belvoir, VA, because of persistent left knee pain. At this time she was noted to have had a chondromalacial defect. b. She also reported an injury to her right wrist when she struck her wrist against the corner of a drafting table. She underwent an electromyography (EMG) on 2 February 1984 which noted ulnar nerve entrapment. She also had surgical ulnar nerve exploration on 16 February 1984 with a follow-up EMG on 11 October 1984 reported as normal. She was ultimately issued a physical profile for her knee and wrist problems. c. Her final diagnosis was that of left chondromalacia patella, nonspecific status post ulnar nerve right wrist pain, and status post medial meniscectomies of her left and right knees (existed prior to service (EPTS)). d. She felt she had achieved maximum medical benefits. She was considered unfit for duty in accordance with chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness) and her case was recommended to be forwarded to a PEB for adjudication. 11. On 15 July 1985, a medical evaluation board (MEB) convened at Fort Stewart, GA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant had the following medically unacceptable conditions: chondromalacia patella, left (EPTS); nonspecific right wrist pain status post ulnar nerve; and status post medial meniscectomies, left and right knees (EPTS). The MEB recommended that the applicant be referred to a PEB. The applicant agreed with the MEB's findings and recommendation and indicated she did not desire to continue on active duty. 12. On 24 July 1985, an informal PEB convened at Fort Gordon, GA, and found the applicant's conditions prevented her from performing the duties required of her grade and specialty and determined she was physically unfit due to various conditions. The PEB rated her under the Veterans Administration Schedule for Rating Disabilities (VASRD) and she was granted (item 8a (VA Code), item 8b (Disability Description), and item 8g ( Recommended Disability Percentage)): * codes 5257-5003 – knee impairment, bilateral, EPTS – 10 percent * codes 8799-8716 – right ulnar nerve – 10 percent 13. The PEB noted the applicant was physically unfit because of recurring complaints of right wrist and left knee pain. The knee condition represented service aggravation of an EPTS knee impairment. She had achieved maximum medical benefits for those conditions. The PEB recommended the applicant be separated from the Army with entitlement to severance pay if otherwise qualified. 14. On 25 July 1985, the applicant concurred with the PEB's finding and recommendation and waived her right to a formal hearing. However, on 8 August 1985, she changed her decision indicating she did not concur and demanding a formal hearing. Accordingly, her case was returned for a formal hearing. 15. On 24 October 1985, she submitted a civilian medical report that shows her civilian doctor diagnosed her with chronic low back pain with no real clinical objective evidence to substantiate the etiology of this problem. He stated: a. The applicant related to him that she was going before a medical board for her low back pain and that she had injured her back in 1982 during basic combat training when she was bent over for 18 hours during kitchen patrol duty and then she went out for physical therapy training [sic]. She began having back problems at that time. She related that at one time she collapsed while doing push-ups and she had to be taken to the hospital on a board because of severe back spasms. She also related that she had a constant backache. The back pain was worse with bending. She did not feel the back pain was getting any better and she had problems sleeping on her back. b. He examined her and noticed she was able to bend over the examining table and remove her socks without any discomfort. She moved freely about the room. There was a little tenderness in the lower midline lumbosacral area, but the range of motion of the lumbosacral spine showed she was able to forward flex to touch her toes. X-rays showed maintenance of disc space was normal. At the L5/S1 spot, there was what appeared to be posterior osteophyte. Oblique films were taken and showed no defects or evidence of spondylolisthesis. 16. On 31 October 1985, a formal PEB reconvened at Fort Gordon, GA, and again found the applicant's conditions prevented her from performing the duties required of her grade and specialty and determined she was physically unfit due to various conditions. The PEB rated her under the VASRD and she was granted the following rating: * code 5214 – navicular, right, dominant, fracture of mid-portion in case, rated as ankylosis – 30 percent * codes 5257-5003 – knee impairment, bilateral, EPTS – 10 percent 17. The PEB noted the applicant was physically unfit because of recurring complaints of right wrist and left knee pain. The knee condition represented service aggravation of an EPTS knee impairment. She had achieved maximum medical benefits for those conditions. New information cited indicated the wrist problem was a non-union fracture of the mid-portion of the navicular bone. This condition was currently treated by a cast. The PEB recommended the applicant be placed on the Temporary Disability Retired List (TDRL) with reexamination during April 1987. On 31 October 1985, the applicant concurred with the PEB's finding and recommendation and waived her right to a formal hearing. 18. On 6 January 1986, the applicant was honorably retired in accordance with paragraph 4-24e(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of temporary disability. Her DD Form 214 shows she completed 4 years, 2 months, and 25 days of creditable active service. 19. She underwent a TDRL evaluation on 14 September 1989. She submitted three slips from her civilian employer authorizing her absence due to the severity of her low back pain that was radiating down the right leg, dated 23 May, 6 June, and 16 June 1989. During the TDRL examination, the physician noted that because of her knee pain, she was unable to run or walk extended distances or jump. Additionally, her right hand limited her ability for fine dexterity and fine motor movements; she had difficulty gripping objects firmly. Due to her persistent pain and difficulty gripping objects, she was referred to a PEB for final disposition. The diagnosis was: * right ulnar neuropathy * left knee pain with history of total medial meniscectomy, two arthroscopic surgeries, with chondromalacia patellae * right knee pain with history of total medial meniscectomy, three arthroscopic surgeries, with chondromalacia patellae 20. On 16 October 1989, a TDRL PEB convened at San Francisco, CA, and determined the applicant's condition had not improved to the extent that she was considered fit for duty. The TDRL PEB rated her under the VASRD and she was granted the following rating: * code 8716 –right (major) ulnar neuropathy with sensory and motor impairment of little finger – 10 percent * code 5003 – degenerative arthritis of both knees with history of pre-service bilateral medial meniscus surgery, EPTS – 10 percent 21. The PEB recommended the applicant be separated with entitlement to severance pay. On 30 October 1989, the applicant elected not to concur with the TDRL's findings and recommendations and demanded a formal hearing of her case with a personal appearance. 22. On 15 November 1989, a formal PEB convened at San Francisco, CA, with the applicant and her counsel present. She requested a change in her disability rating from 20 percent as currently assigned for a degenerative joint disease which affected her knees and for ulnar neuropathy which affected her hand and wrist. She requested an increase in ulnar neuropathy rating to 30 percent. She also asked for a 10-percent rating for her low back pain. a. The TDRL PEB considered the applicant's past medical records as well as her argument and the new low back pain issue and again determined the applicant's condition had not improved to the extent that she was considered fit for duty. The PEB also noted there was no X-ray evidence to support a right scaphoid fracture. b. The TDRL PEB rated her under the VASRD and she was granted the following rating: * code 8716 – right (major) ulnar neuropathy with sensory and motor impairment of little finger –10 percent * code 5003 – degenerative arthritis of both knees with history of pre-service bilateral medial meniscus surgery, EPTS – 10 percent 23. On 15 November 1989, she indicated she did not agree with the PEB's recommendation and would submit a rebuttal letter. 24. On 29 November 1989, the PEB counsel indicated by memorandum that in the interest of examining all available medical evidence surrounding her case, the issue of her chronic mechanical low back pain and the level of impairment surrounding her ulnar neuropathy should be reconsidered. With this memorandum, counsel submitted a substantial set of medical documents, including civilian and VA medical records addressing her lower back pain. The applicant appears to have injured herself during a training accident. Although no line of duty was performed, her testimony should suffice. She continued to experience a persistent pattern of chronic low back pain which stemmed from her back injuries. Since her release from active duty, she continued to suffer severe back pain that prevented her from maintaining gainful employment. Counsel requested emphasis be placed on the chronic mechanical lower back pain. 25. On 29 November 1989, an informal TDRL PEB convened at San Francisco, CA, and reconsidered the applicant's case with her new evidence. The PEB noted the applicant's condition had not improved to the extent that she was considered fit for duty. The TDRL PEB rated her under the VASRD and she was granted the following rating: * code 8716 –right (major) ulnar neuropathy with mild sensory and motor impairment of little finger – 10 percent * code 5003 – degenerative arthritis of both knees with history of pre-service bilateral medial meniscus surgery, EPTS – 10 percent * code 5003 – degenerative disc disease of lumbosacral spine was present but not unfitting at the time of her placement on the TDRL (no evidence to substantiate etiology) – 0 percent 26. The PEB recommended the applicant be separated with entitlement to severance pay if otherwise qualified. 27. Subsequent to this PEB, the applicant and her counsel were provided with the PEB proceedings. She was informed she had the right to disagree with the findings and recommendations of the last PEB. 28. On 12 December 1989, the PEB recorder indicated by memorandum that the applicant and her counsel failed to respond. Neither a signed receipt of the PEB proceedings was returned nor was the PEB returned as undeliverable. In view of the applicant's failure to respond, it was deemed that she agreed with the PEB's findings. 29. On 3 January 1990, the U.S. Total Army Personnel Command, Alexandria, VA, published Orders D262-12 removing the applicant from the TDRL and discharging her from the Army with entitlement to 20-percent severance pay effective 3 January 1990. 30. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness may be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. 31. Army Regulation 635-40 prescribes the function of the TDRL. The TDRL is used in the nature of a "pending list." It provides a safeguard for the government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. A Soldier's name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement but for the fact that his or her disability is determined not to be of a permanent nature and stable. 32. Title 10, U.S. Code, section 1202, provides that if a member would be qualified for retirement for disability but for the fact that his or her disability is not determined to be of a permanent nature and stable, the Secretary shall, if the Secretary also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member's name on the TDRL with retired pay computed under section 1401 of this title. DISCUSSION AND CONCLUSIONS: 1. The applicant contends her low back pain should have been included in the adjudication of her case. 2. The evidence of record shows the applicant sustained medical conditions related to her knees and hand that rendered her physically unfit. She was considered by an MEB that referred her to a PEB. The PEB found her conditions rendered her unfit and initially ordered her separation. She did not concur and demanded a formal hearing. A subsequent formal PEB reconsidered her case and ordered her placement on the TDRL. 3. There is no evidence the applicant was unfit because of low back pain at the time she was placed on the TDRL. Her physical profile that initiated the MMRB and subsequent referral to the PDES was for her knees. The informal and formal PEB's, in addition to a rating for her knees, also rated her for nonunion of wrist bone (in a cast at the time) and placed her on the TDRL. 4. Accompanying documents show she had sporadic low back pain while on active duty and while on the TDRL. The pain was usually attributed to muscle spasms. There were no objective findings. When the pain occurred, there was no radiculopathy. 5. After the informal PEB but prior to the formal PEB, the applicant received a civilian consultation for lower back pain. She had complained to the civilian doctor, in part, that her back pain was worse with bending. Yet, the doctor noticed that she was able to bend over he examining table and remove her socks without any discomfort, that she moved freely about the room, and that her range of motion showed she was able to forward flex to touch her toes. The civilian orthopedist found no objective reason for her recurring back pain. The MEB NARSUM does not mention low back pain. After the applicant appealed her informal PEB, the formal PEB increased her rating for wrist fracture and placed her on the TDRL. Back pain was not considered and the applicant concurred with the findings and recommendations. 6. When evaluating a Soldier who is on the TDRL, the PEB is constrained to rate only those conditions for which the Soldier was found to be unfit when placed on the TDRL. Despite this, the applicant and her counsel raised the issue of low back pain during her TDRL PEB. The PEB requested additional information regarding this pain. The PEB indicated an interest in examining all available medical evidence surrounding her case as well as a receptivity toward reconsidering the applicant's argument on the chronic low back pain and the level of impairment surrounding he ulnar neuropathy. Ulnar neuropathy refers to residual nerve damage from her wrist fracture for which she was rated at 10 percent. 7. There is no evidence the applicant had an unfitting medical condition related to back pain when she was placed on the TDRL or when she was removed from the TDRL. Her contention that her low back pain was not considered by the PEB is inaccurate and lacks merit. In view of the foregoing evidence, she is not entitled to the requested relief. 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 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. ABCMR Record of Proceedings (cont) AR20100021424 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100021424 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1