IN THE CASE OF: BOARD DATE: 12 February 2015 DOCKET NUMBER: AR20140009001 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, his records be medically reviewed, submitted to a physical evaluation board (PEB), and that his honorable discharge be changed to a medical retirement. 2. The applicant states he first suspected his military diagnosis was incorrect in December 2003 when he saw his first civilian neurosurgeon who diagnosed him with spondylolysis and spondyllsthesis (conditions affecting the vertebra in the lower back). He worked with several doctors and in December 2011 a Doctor T----- concluded the applicant's true condition was repeated bi-lateral fracturing of his L5-S1 which was the cause of his herniated disc. 3 The applicant provides: * his counsel's brief * military medical records * civilian/Department of Veterans Affairs (VA) medical records * X-ray and Magnetic Resonance Imaging (MRI) from Dr. R-------- * surgical report and statement from Dr. M----- * medical record reviews from Dr. G------- * VA comments * statements from Dr. T----- * parents and spouse's statements * statements from friends who served in the military with him * statements from co-workers COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests the applicant's honorable discharge be changed to a medical retirement. 2. Counsel states: a. The applicant was misdiagnosed by military medical personnel as having Ankylosing Spondylitis (AS) (a type of arthritis that mainly affects the back). Given that diagnosis, he continued to perform duties required of an infantryman; rappelling from helicopters, undergoing lengthy road marches with heavy rucksacks, and carrying the M-60 machine gun. This caused undue stress on his spine, exacerbating his condition. He was not referred to a medical evaluation board (MEB) or PEB. He is receiving a 50% disability rating from the VA for service-related disabilities. b. Three treating specialists, VA doctors, and a highly-credentialed board-certified expert have confirmed the applicant acquired the conditions while on active duty. c. The applicant's form of arthritis is not the principal cause of his severe, debilitating condition. He suffers from repeated fracturing of his lower lumbar/sacral spine. He has endured 20 years of prescribed powerful medications and was never referred to a specialist until he was finally referred to a rheumatologist; the wrong specialty. He received care from various medical facilities with no relief for his spinal condition. d. He was subsequently treated by civilian medical personnel and in 2005 he received partial remission of pain for 5 years from spinal surgery. e. He was never referred to an MEB because of the misdiagnosis and he should have been. Instead he was advised by military doctors to exercise and do physical therapy. He should have been excused from rigorous military physical training. f. The applicant eventually left the Army because he "just couldn't keep up anymore." 3. Counsel provides an appeal from the applicant, dated 5 May 2014. 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 enlisted in the Regular Army on 2 April 1992. He held military occupational specialty 75B (Personnel Specialist). 3. His DA Form 2-1 (Personnel Qualification Record - Part II) shows he served two overseas tours in Hawaii as a personnel and administration specialist. 4. He was honorably discharged on 5 January 2002, in the rank of sergeant (SGT)/E-5, due to completion of required active service. He had completed 9 years, 9 months, and 4 days of active duty service. 5. The applicant provided copies of his service medical records for the period 1993 to 2001 showing he was seen and received treatment on numerous occasions for medical complaints including back pain. He was placed on a temporary physical profile for foot pain on 21 July 1992 for 14 days. 6. He provided medical documentation showing that between December 2003 and October 2011 he was treated by civilian medical personnel for chronic lower back and hip pain. He had surgery for a herniated disc. 7. He provides VA Progress Notes and Consult Notes showing that between 27 December 2010 and 4 March 2011 he was seen for issues related to his lumbar spine and an MRI was performed. 8. He provides letters from: a. Dr. James W. M-----, dated 10 January 2006, who states he reviewed the applicant's radiology reports and film and it was his opinion that the applicant suffered from a disc herniation and the subsequent surgery he underwent was to treat that disc herniation. While the disc herniation may not have occurred as a result of his activities in the military, in his opinion, it certainly was aggravated by the activities he performed while in the service. b. Dr. J. Alex T-----, who indicated in a Neurological Supplementary Note, dated 5 December 2011, the applicant continued to have episodes of severe low back and leg pain. Conservative management of the problem failed and he recommended the applicant have instrumented fusion and stabilization of the L5-S1 level. c. Dr. J. Alex T-----, indicated in a Neurological Supplementary Note, dated 1 February 2012, the applicant had been under his care for several months for severe, debilitating low back and leg pain. He stated. "It is very likely that the degenerative disc disease and instability at this level were accelerated by the intense physical activity that the patient experienced during training for the military (i.e., long road marches, aerial training in which he rappelled out of aircraft with heavy equipment, and the intense physical therapy including "fireman's carry). This training occurred from September of 1992 through August of 1995. That damage caused by this intense physical activity has left the patient quiet debilitated by pain." d. Dr. Stuart J. G-------, President, Granite Physiatry, dated 17 September 2012, who reviewed the applicant's military medical records and concluded that while the applicant had undergone surgery at L5-S1, he still had ongoing pain requiring Indocin and occasional use of Toradol. There was evidence of spinal arthritis and a history of sacroiliac dysfunction, segmental instability, specifically anterolisthesis L5-S1. He also had degenerative arthritis and a neural foraminal narrowing and spinal stenosis. He concluded the applicant's disability rating should be 78 percent. e. In a 3 February 2013 letter Dr. G-------, again reviewed the applicant's military records and after incorporating the applicant's numbness and radiating pain down his left leg and a mild case of nerve paralysis, he increased the disability rating to 82 percent. In a 30 July 2013; letter Dr. G------- stated, "It is felt to a reasonable degree of medical certainty that the conditions Mr. T-------presently endures were present at the time of leaving military service." f. His parents, dated 28 April 2012, who stated their son reported to them the rigorous training involved with his assignment to the 25th Infantry Division in Hawaii. After more than 2 years there he began to experience severe back pain. He went to the base hospital and was given an injection for back pain. He also underwent a regimen of physical therapy. In 1996, he was diagnosed with AS. He was transferred to California and the back pain continued. He did not receive an MRI while in the service. He separated from the Army in 2002 and the pain continued. He had surgery in September 2005, but only a temporary relief from the pain. He still experiences pain and it impacts his quality of life. g. His spouse, dated 5 August 20913, who relates that she met the applicant 4 years after he left the military service, shortly after he had back surgery. She states that he has severe back pain that requires several does of Indocin. On one occasion she told him they needed to get to the emergency room; but he absolutely could not move until the medication started to work. She indicates there is no permanent solution to his condition and his life has been significantly altered. He no longer goes out and stays at home all the time due to his physical condition.. h. Sergeant First Class (SFC) retired Loria E---- , dated 6 September 2013, who was the applicant's supervisor from 1998 to 2001. During that time he spent many days working in pain because of his back. He went on sick call numerous times and was told he had arthritis. He had an unsteady gait and painful winces when trying to walk. i. SFC retired Vernon K. D----, undated, who was the applicant's supervisor from July 1997 until April 1998. He states there were times they had to place the applicant on a physical profile because of his back problems. j. Mr. Emmanuel D-----, dated 21 August 2013, who was stationed with the applicant from October 20000 until October 2001. He indicates there were times when the applicant would complain about bending down to pick up papers because of the pain in his back. The applicant went on sick call several times because of the back pain. k. Mr. Jeff H-----, dated 19 November 2013, who states the applicant has worked on his team for over 4 years. He noticed the applicant had a slight limp that became more noticeable towards the end of the day and it was frequently accompanied by back pain. Sometimes his back pain was quite bad and he was required to be absent 2 or 3 days to recover. He has gone to the emergency room on more than one occasion. l. Than M--, undated, who was the applicant's co-worker since May 2009. The applicant informed him that he started having back pain while in the Army and had surgery in 2005. His problems have returned and he occasionally limps and has missed many days of work due to pain and medical appointments. m. Nga P-------, dated 19 November 2013, who is a co-worker of the applicant. He learned about the applicant's back and lower body pain because of his absence from work. n. Mr. Felix A. W-------, dated 22 November 2013, who is also a co-worker reports that on several occasions the applicant has missed days from work or has gone home early after complaining of back pain and he often limps.. 9. A review of the documents provided failed to reveal any SFs 88, DA Forms 3349, or any documents from the applicant's chain of command showing the applicant's medical condition was preventing him from performing any of his military duties. 10. An NCOER for the period January 2001 through October 2001 shows ratings of "Success" or "Excellence" in all areas and his overall performance was rated "Among the Best." A bullet entry in Part IVc (Physical Fitness and Military Bearing) states, "Profile does not hinder duty performance." 11. There is no record he was referred to an MEB/PEB. 12. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, provides that 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. 13. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. 14. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his medical records should be reviewed, submitted to a PEB, and his honorable discharge should be changed to a medical retirement. 2. Although the applicant provided copies of his medical records, there is no available evidence of any medical examinations, limiting physical profiles, or any indication from his chain of command that he was unable to perform his military duties due to a medical condition. In fact, his last NCOER shows he was performing his duties in an excellent and satisfactory manner. 3. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service and affects the individual's civilian employability. 4. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. 5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 that 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) AR20120017854 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140009001 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1