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ARMY | BCMR | CY1990-1993 | 9310741
Original file (9310741.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That the Veterans Administration Schedule for Rating Disabilities (VASRD) code 5295, indicating lower back pain, be corrected on his physical evaluation board (PEB) proceedings to code 8022, denoting new growth of benign spinal cord tumor and code 5293, denoting intervertebral disc syndrome, moderate, recurring attacks, existing prior to service (EPTS), service aggravated. The applicant also requests that title 10, U.S. Code, section 1217, be amended to allow cadets of service academies in their third and fourth years to receive disability benefits from the services.
APPLICANT STATES : His lipoma (a benign tumor) had never been removed. Therefore, the VASRD code cited should have been for an active neurological dysfunction due to the tumor located next to his spinal cord (VASRD code 8022). The PEB should also have cited the VASRD code for a service aggravation to his EPTS intervertebral disc syndrome (VASRD code 5293). He also states that the U.S. Code should be amended to allow disability benefits for cadets of service academies because the cadets are treated as, and are expected to act as, active duty officers.
EVIDENCE OF RECORD : The applicant's military personnel and medical records show:

While a cadet at West Point Military Academy, the applicant was conservatively treated for complaints of increasing low back pain. He had a long history of chronic intermittent low back pain and had undergone chemonucleolysis (dissolution of the nucleus pulposus of an intervertebral disk by injection of a chemolytic agent) at the L4/5 level in 1981 with transient improvement of his symptoms.

In September 1986, while still a cadet at West Point Military Academy, he started to experience urinary incontinence, stool staining and decreased sensation in his perineum (the region between the thighs), and his feet. An MRI was then performed on him with the discovery of a conus lipoma. In December 1986 he underwent surgery which included a laminectomy (excision of the posterior arch of a vertebra) and a biopsy of his tumor. The tumor proved to be benign.

He completed his course of instruction at West Point Military Academy and was the subject of a commissioning review board. That board found him physically fit for commissioning, but limited him to service outside of combat arms. The board also stipulated that he was not to participate in airborne or ranger training.

The applicant was commissioned as a second lieutenant and entered on active duty on 25 May 1988. He completed the engineer officer basic course, was given center of mass or better officer evaluation reports, and was promoted to first lieutenant.

The applicant’s records contain a DA Form 2173, Statement of Medical Examination and Duty Status, showing that on 9 July 1991 he reported that he was treated on 21 July 1989 on an outpatient basis for an injury to his back he incurred during a river crossing operation.  His records contain a second DA Form 2173 showing that on the same date he reported his river crossing injury, 9 July 1991, he reported that he injured his back in January 1991 while going in and out of bunkers during Scud missile attacks while in Saudi Arabia.

On 30 October 1991 the applicant was the subject of a medical evaluation board (MEB). The MEB found the applicant to have incapacitating low back pain associated with strenuous physical activities, prolonged standing, walking and load bearing. The MEB diagnosed the applicant as suffering from conus medularis lipoma, incomplete resection in December 1986, with mild motor deficit and moderate sensory deficit secondary to the lipoma. The MEB also cited the laminectomy he underwent in conjunction with the resection, the chymopapain treatment he received for his herniated nucleus pulposus in 1981, and moderate degenerative disk disease of the L4/5, secondary to the laminectomy and chymopapain treatment. The MEB determined that all those conditions were EPTS, but were service aggravated. The applicant agreed with the findings of the MEB and stated that he did not desire to continue on active duty.

On 8 November 1991 the applicant’s case was considered by an informal physical evaluation board (PEB). The PEB determined that the applicant was physically unfit due to low back pain caused by the excision of a spinal cord lipoma through T12/L3, and due to his 1986 laminectomy with degenerative intervertebral disk disease. The PEB determined that the applicant’s disqualifying condition was EPTS and was not service aggravated. The PEB determined that administrative separation (no disability benefits) would be appropriate in his case.

The applicant initially disagreed with the informal PEB’s findings and recommendation, demanded a formal hearing, and submitted a rebuttal. In that rebuttal he claimed that his military service hastened the progression of his disabilities and that the VASRD code used for his unfitting condition was in error as it reflects a symptom and not the causal disabilities themselves. He also cited examples of his level of physical fitness before and after his surgery while he was a cadet at West Point Military Academy, and how he injured his back when he was the officer in charge of a river crossing operation, an operation which required the carrying of load bearing equipment and heavy physical exertion. He had suffered a severe spasm in the lower lumbar region of his back during the river crossing maneuver, those spasms only subsiding when he was given an injection of morphine at an Army hospital emergency room. With reduced physical abilities as a result of his reinjury, he continued to serve with multiple temporary physical profiles. He was able to perform his duties to an acceptable manner until he was reinjured while in Saudi Arabia during Desert Storm when he fell on numerous occasions while running to a bunker during SCUD missile attacks.

On 7 January 1992 the informal PEB responded to the applicant’s rebuttal stating that it had again reviewed his case and adhered to its original findings and recommendation. In that response the informal PEB informed the applicant of the date on which his formal hearing was scheduled.

On 9 January 1992 the applicant withdrew his demand for a formal hearing, stating that he changed his mind and then concurred with the informal PEB’s findings and recommendation.

Accordingly, on 14 February 1992 the applicant was honorably discharged by reason of physical disability without severance pay. He had a total of 3 years, 8 months and 20 days of active service. His significant awards and decorations include the Bronze Star Medal, the Army Commendation Medal (two awards), the Meritorious Unit Commendation, and the Air Assault Badge.

Army Regulation 145-1, section V, requires cadets to complete an enlistment contract in the USAR when they enter into their third (junior) year of school, if not previously enlisted under other provisions.

Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if an EPTS condition was aggravated by military service, the finding will be in line of duty. If an EPTS condition is not aggravated by military service, the finding will be not in line of duty, EPTS. Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.

Army Regulation 635-40, the regulation which governs PEB’s, paragraph 4-19b, states that a PEB may decide that a soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service. If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service. The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.

The Department of Defense Pay Manual (DODPM), paragraph 10101p, states that service as a cadet or midshipman is creditable in computing basic pay of enlisted members. In accordance with table
1-1-1 of this manual, service in any of the military academies for cadets and midshipmen who were appointed after 25 June 1956 is not creditable.

Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of soldiers who incur a physical disability in the line of duty while serving on active or inactive duty. However, the disability must have been the proximate result of performing military duty. Section 1217 of this title states that chapter 61 does not apply to cadets at the United States Military Academy.

 DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. It is apparent from the applicant’s records that the pain he was experiencing was the condition which became unfitting. Although his back problems and tumor were the cause of that pain, they were not found to be physically unfitting in of themselves. As such, the VASRD code assigned by the PEB in its proceedings was proper and there is no reason to change it.

2. The applicant, although a member of the USAR by virtue of his enrollment at West Point Military Academy, had no duty status until he was commissioned and entered on active duty.

 3. There is no clinical evidence that the applicant reinjured his back while on active duty. The two DA Forms 2173 merely show that he reported injuries 6 months and 2 years after the fact, respectively.  Based on that lack of evidence, it appears that the applicant’s long-standing back problems had degenerated by natural progression.
4. Since the applicant had a history of back problems dating back before he had any involvement with the military, since he was not on a duty status when he was operated on while he was a cadet at West Point Military Academy, since the pertinent U.S. Code specifically precludes cadets serving at military academies from receiving disability benefits, and since there is no evidence of a service aggravation of his back conditions, the applicant was properly separated without disability benefits.

5. Amendments of U.S. Codes are not within the purview of this Board.

6. In view of the foregoing, there is no basis for granting the applicant’s request.

 DETERMINATION : The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

 BOARD VOTE :
GRANT

GRANT FORMAL HEARING

 DENY APPLICATION




                                                      Karl F. Schneider
                                                       Acting Director

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