| Mr. Loren G. Harrell | Director | |
| Mr. David H. Keller | Analyst |
| Mr. Edward Williamson | Chairperson | |
| Ms. Meta Waller | Member | |
| Mr. Kenneth L. Wright | Member |
APPLICANT REQUESTS: In effect, physical disability retirement or separation.
APPLICANT STATES: That she was discharged because of bilateral foot problems that developed while on active duty, but was told that the condition existed prior to enlistment. That this was not so and no evidence to that effect had ever been presented by the medical evaluation board (MEB) or physical evaluation board (PEB). That the MEB was inappropriately performed by the Army. That she had never been treated by a physician prior to enlistment for any foot problems. In support of her request, she submits a statement from her high school coaches affirming she did not have any foot problems through 4 years of cross-country running and training.
EVIDENCE OF RECORD: The applicant's military records show:
She enlisted on 23 June 1994 and, after training, was assigned to Fort Riley, Kansas.
On 15 August 1995 an MEB convened and a diagnosis of chronic foot pain secondary to plantar fasciitis and hyperpronation, which existed prior to service (EPTS), was made as not meeting retention standards. The board recommended the applicant be administratively separated in accordance with Army Regulation 635-40. The findings and recommendations of the MEB were approved. The applicant disagreed with the findings and submitted a written appeal. The approving authority considered the applicant’s appeal and her case was referred to a PEB for consideration.
On 31 October 1995 an informal PEB found the applicant unfit due to chronic foot pain secondary to plantar fasciitis and hyperpronation; bilaterally right greater than left, EPTS, not permanently aggravated by service; and recommended she be separated from the service without disability benefits. The applicant did not concur and demanded a formal hearing with personal appearance.
A formal PEB was held on 8 December 1995 with no change in findings. The applicant concurred with the findings and she was discharged on 12 January 1996 due to physical disability without severance pay.
Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.
Army Regulation 635-40, paragraph B-10, provides that hereditary, congenital, and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.
On 3 November 1998 the Board was advised (COPY ATTACHED) by the Office of The Surgeon General (OTSG) that the MEB’s diagnosis of plantar fasciitis existing prior to service was incorrect; however, their determination of no permanent service aggravation was correct. All medical authorities agreed that the applicant’s impairment was not permanently aggravated by her military duties. If the impairment is not permanent, the law does not authorize compensation.
A second advisory opinion (COPY ATTACHED) from the Army Physical Disability Agency (USAPDA) contained no information, advice or recommendation that would constitute a basis for granting the relief requested. The MEB came to the conclusion that the pain in the applicant’s feet progressed naturally because of her hyperpronation and pre-existing condition of her feet. These natural defects had not bothered her before, but the MEB determined they were clearly the cause of her sudden foot pain soon after coming into the service. The MEB considered the applicant’s claim that her condition couldn’t be related to the natural condition of her lower extremities because she had run track and cross country painlessly for years before coming into the service, but rejected it and referred her case to a PEB. The PEB accepted the MEB findings of no permanent service aggravation and determined that the applicant’s impairments were not compensable.
The applicant was furnished a copy of both advisory opinions for her comments and possible rebuttal. She failed to respond within the 30-day time limit afforded her by this agency.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinions, it is concluded:
1. The MEB and PEB findings that the applicant’s foot impairment was not permanently aggravated by service was confirmed by the OTSG and USAPDA.
2. The applicant has not provided any positive medical evidence of permanent service aggravation. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
3. The foregoing is supported by the OTSG and USAPDA advisory opinions.
4. In view of the above, 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
Loren G. Harrell
Director
| CASE ID | AC97-11097/AR1999023485 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 19990527 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 108.01 |
| 2. | 108.05 |
| 3. | 145.02 |
| 4. | |
| 5. | |
| 6. |
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