| Mr. Carl W. S. Chun | Director | |
| Mr. Kenneth H. Aucock | Analyst |
| Mr. James E. Vick | Chairperson | |
| Ms. Barbara J. Ellis | Member | |
| Mr. William D. Barr | Member |
APPLICANT REQUESTS: In effect, physical disability retirement.
APPLICANT STATES: That she had symptoms of multiple sclerosis beginning in May 1999, but was not so diagnosed.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted in the Army on 15 March 1996 and completed training as a military police woman. She was promoted to Sergeant on 1 June 1999 and completed the primary leadership development course (PLDC) on 4 June 1999, achieving course standards. Her NCO evaluation report for the 11 month period ending in April 2000 shows that her rater felt that she was a fully capable NCO. He stated that she passed the Army Physical Fitness Test (APFT) scoring 289 (out of 300) in October 1999 on the alternate APFT. Her senior rater considered her performance and potential superior.
On 13 May 1997 the applicant was treated for right eye pain and smoky vision.
On 20 March 1998 the applicant was treated because of problems with her feet.
On 25 January 1999 the applicant stated that her arch supports were not helping her plantar fasciitis (inflammation to the sole of the foot).
Physical profile documents (DA Forms 3349) show that she had temporary profiles on her feet and ankles beginning in January 1999. She was seen on 23 February 1999 because of her foot problems. She was treated on 9 April 1999 because of her chronic plantar fasciitis. On 9 June 1999 she was seen because she had constant throbbing pain and severe pain while standing on her feet. She was seen again on 8 July 1999 because of her plantar fasciitis.
On 30 June 1999 the applicant was seen because of right hand pain. She indicated that she had a tingling feeling from her wrist to her fingertips, and also at the top of her right thigh.
On 30 July 1999 the applicant received a permanent profile serial of 1 1 3 1 1 1 because of chronic plantar fasciitis with bilateral ankle equinus, bilateral foot and ankle pain.
On 13 September 1999 the applicant was seen because of hand numbness (since June 1999). She fell backwards with a full ruck sack, landing on her back. Two weeks later her right hand and right leg felt numb. In July 1999 she had neck pain and right side numbness while running, lasting several minutes. Numbness was in hand and forward flexion of neck. The medical record indicates that the applicant was currently before a medical board.
A 23 October 1999 medical report shows that the applicant was seen because of her hand and neck problems. That report shows that the applicant stated that her right leg symptoms had not been symptomatic and had essentially resolved. She noted nearly constant numbness and tingling in the palmar aspect of the right hand, which did not appear to go out to the fingers. She also complained of mild neck pain. This started in June of 1999 when she fell with a full ruck sack. She was previously evaluated in the hand clinic and at that point the evaluation did not find a distinct etiology. She had numbness and pain in the right hand, particularly with any kind of running or heavy use of the hand. Her condition was diagnosed as hand numbness and tingling of unclear etiology.
A 3 November 1999 medical record shows that the applicant had a normal electrodiagnostic evaluation, with no evidence of a right median or ulnar neuropathy of the right upper extremity. Cervical radiculopathy was unlikely.
On 15 November 1999 the applicant was seen because of neck and upper back pain (present for 5 months) and for problems with her right hand. Her condition was described as myofascial pain syndrome.
On 30 November 1999, 2 December 1999, and 13 December 1999 the applicant was treated by a physical therapist for myofascial pain syndrome.
In February 2000 she received a temporary profile because of myofascial (inflammation of a muscle and its fascia, particularly of the fascial insertion of muscle to bone) syndrome.
On 6 January 2000 the applicant was treated because of chronic paresthesias (an abnormal sensation, as burning, prickling, formication) in her right hand. The health record shows that she was diagnosed with myofascial pain syndrome. She was treated again on 7 February 2000.
A 1 February 2000 MEB provided a history of her foot problems, stating that she developed chronic plantar fasciitis which became acute in March 1998. That board also indicated that she had trauma to her right shoulder in May 1999 when she fell into a ditch, resulting in what is called in the record, “a myofascial pain syndrome effecting her right upper extremity as well as her upper neck and back.” The report indicates that she was under the care of physical medicine for her chronic neck and upper back pain, and had received physical therapy and an injection of a trigger point in her upper back. Her condition was diagnosed by physical medicine as myofascial pain syndrome.
The MEB diagnosed the applicant’s condition as bilateral plantar fasciitis and bilateral ankle equinus, and stated that the applicant was unable to perform most of her military police duties expected of her because of her inability to stand or walk for a prolonged period of time. The MEB recommended that the applicant be referred to the PEB. The applicant concurred in the findings and recommendation.
On 16 February 2000 a PEB agreed with the diagnosis of the MEB, determined that the applicant was physically unfit and recommended a rating of zero percent. The applicant concurred and waived a formal hearing of her case.
The applicant was seen on six different dates in March 2000 by the physical therapy clinic.
On 16 March 2000 the applicant was treated because her feet were bleeding because of her shoes.
On 14 April 2000 the applicant was seen for neck and shoulder pain and numbness to her right hand.
On 1 May 2000 she was seen because of her neck pain and the numbness in her right hand.
In a 16 May 2000 rating decision the VA awarded the applicant a 10 percent disability rating for her myofascial pain syndrome right upper back/neck and arm with headaches; and a 10 percent rating for her bilateral plantar fasciitis with ankle equinus. Service connection for chronic right leg numbness was denied.
The applicant was discharged on 23 May 2000 at Fort Lewis, Washington with severance pay because of her physical disability.
On 5 June 2000 the applicant indicated that her neck felt better, but her right hand was still tingling. A 12 June 2000 medical record indicates that her right hand numbness was unchanged. Her condition was diagnosed as chronic neck and upper back pain and right hand paresthesias.
A 16 June 2000 medical report indicates that she stated that she had felt some soreness in the chest but that it was now gone. She stated that her neck, chest, and right arm were fine, but her right hand was still numb.
A 1 November 2000 medical report shows that the applicant woke up with blurry vision and felt like she had saran wrap over her eye.
On 14 November 2000 a physician from the Swedish Medical Center in Seattle indicated that the applicant had been sent to him for a neuro-opthalmic consultation. He stated that the applicant had possible optic neuritis in the left eye, and she had stated that she had her first neurologic symptoms one year ago when she developed numbness of the right hand and right leg intermittently,
which was attributed to a myofascial pain syndrome following a fall while in the Army. She stated that two weeks ago she awoke with blurred vision in the left eye subsequently associated with eye pain with movement over the next few days. The vision improved, but the eye still hurt somewhat with movement. The physician stated that the applicant’s exam was consistent with a diagnosis of mild retrobulbar optic neuritis of the left eye. He stated that he was concerned about her previous episodes of numbness in the right arm and leg and would schedule an MRI scan of her brain that same day.
A 14 November 2000 medical report from “Seattle Radiologists” indicates that the applicant underwent an MRI of the brain because of optic neuritis left side with numbness in the right hand. The study was obtained to rule out MS (multiple sclerosis). The conclusion reached that imaging findings were suspicious for MS though not pathognomonic (indicating or typical of a particular disease) of this.
In a 15 November 2000 letter that same doctor from the Swedish Medical Center stated that the MRI scan showed several lesions in the deep white matter, some of which were periventricular (around a ventricle). He stated that given her history of attack of numbness in her right hand and now optic neuritis with a positive MRI scan, he told her that she likely had relapsing-remitting multiple sclerosis, and that it would be in her best interests to initiate therapy.
In a 14 December 2000 statement that same doctor stated that it was his opinion that the applicant had relapsing-remitting MS. She had a health history that showed related symptoms (numbness in the right arm and hand) that dated back two years. He stated that given her history, and her current condition of optic neuritis, he was certain that she had experienced MS related symptoms for at least two years.
In the processing of this case an advisory opinion was obtained from the Medical Advisor to the Army Review Boards Agency. That officer noted that the applicant had been treated for years for various ill-defined pains and subjective ailments under the heading of myofascial pain syndrome, and that while many medical authorities hold that to constitute a medical entity, others felt it to be a category of disease, real or imagined, which could not be explained using the usual categories. Nevertheless, she was treated for ill-defined and migratory pains for two years, and especially in the year preceding her discharge. He stated that with the additional medical information provided since her discharge concerning the diagnosis of MS and optic neuritis, it was evidence that the applicant was in all probability exhibiting early symptoms of MS, and the regulation requires referral of MS cases to a PEB where the VASRD (Veterans Administration Schedule for Rating Disabilities) is used as a guide for rating disabilities. He went on to say that the VASRD code for MS is 8018 and the assigned rating is a minimum of 30 percent; and had the PEB known of that diagnosis, which was probably present at the time of her separation, they would have theoretically, and correctly, assigned a rating of 30 percent to the applicant and disability retirement.
In a 17 May 2001 advisory opinion, the Army Physical Disability Agency (USAPDA) disagreed with the opinion provided by the Army Review Boards Agency Medical Advisor, and stated that the USAPDA believed that the applicant’s military records relating to disability processing remain unchanged.
The USAPDA stated that the applicant agreed with the decision of the 16 February 2000 informal PEB that found her unfit and that awarded her a zero percent rating for her foot problems, and separation with severance pay.
The USAPDA recounted her medical history, stating that she did complain of pain in her back, neck, and right shoulder area, and of some numbness in her right arm and right leg. All those complaints arose from her injury in 1999 when she fell down with a ruck sack. She was thoroughly examined several times. She had full strength, no atrophy, and there was no electrodiagnostic evidence of any nerve malfunctions. A finding of myofascial pain syndrome was rendered and that diagnosis for her symptoms was accepted by the VA.
At the time of her MEB her main complaint as to why she could not perform her duties was her plantar fasciitis. Her report of medical history, which she filled out in preparation for her MEB, reflected that she had no eye problems, headaches, painful joints, nerve injuries, paralysis, or fatigability.
The USAPDA stated that although the applicant’s doctors and the Medical Advisor felt that her complaints of numbness in her right arm and hand related to MS symptoms while on active duty, the basis for the Medical Advisor’s opinion was the pain and numbness related to her falling injury. The USAPDA stated that those symptoms appeared to be directly related to a specific injury, were not uniquely related to any exclusive MS symptoms, and were correctly diagnosed as myofascial pain syndrome. There did not appear to be any reasonable evidentiary basis for any opinion that her pain and numbness from her 1999 injury was a precursor to her present MS. The evidence more strongly supported the existing diagnosis of myofascial pain syndrome, not MS. Even could it be shown, by reasonable evidence, that MS had been developing while on active duty, it did not automatically mean that she would have been found unfit for any such diagnosis. The USAPDA stated that the disability system was a performance based system and the mere presence of an impairment, or diagnosis, did not, of itself, justify a finding of unfitness. All the evidence showed that except for her foot pain, she was fully capable of performing in her MOS, and had just successfully completed her PLDC training. Therefore, the fact that there is a minimal rating of 30 percent was irrelevant because of the initial requirement to find a person fit or unfit for duty. The USAPDA had found soldiers with a confirmed diagnosis of MS fit in the past. The USAPDA concluded that there was insufficient evidence to determine if the applicant’s condition of MS was present before her separation from the Army, and that even if a diagnosis of MS had been available at the time of her separation, the applicant would not have been found unfit for it.
On 9 August 2001 the applicant provided a rebuttal to the USAPDA advisory opinion, stating that she was seen 27 times for numbness and what was termed as “myofascial pain syndrome.” She stated that according to the National MS Society, “if a patient has had two attacks of neurologic symptoms (each lasting at least 24 hours and occurring at least one month apart) or slow progression of symptoms over a period of at least six months, a physician should suspect the presence of multiple sclerosis.” She stated that she received various treatments, but not an MRI, which if taken, would have indicated a diagnosis of MS. She stated that she was seen by the VA on 19 July 2001 and was prescribed a medication for the therapy of MS. She stated that her claim was pending with the VA. She stated that even after her discharge her numbness and myofascial pain syndrome were being treated.
Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his/her office, grade, rank or rating. It also states that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.
Army Regulation 635-40 establishes the Army physical disability evaluation 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 office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status. A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.
Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.
Army Regulation 635-40 also states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.
Dorland’s Illustrated Medical Dictionary defines multiple sclerosis as a disease in which there are patches of demyelination (destruction, removal, or loss of the myelin sheath of a nerve or nerves) throughout the white matter of the central nervous system, sometimes extending into the gray matter. Typically, the symptoms of lesions of the white matter are weakness, incoordination, paresthesias, speech disturbances, and visual complaints. The course of the disease is usually prolonged, with remissions and relapses over a period of many years. The etiology is unknown.
That dictionary defines myofascitis as the inflammation of a muscle and its fascia, particularly of the fascial insertion of muscle to bone.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. The applicant may well have had MS while on active duty as indicated by the civilian doctor who treated her in late 2000. The Medical Advisor to the Army Review Boards Agency believes it so. The USAPDA disagrees and stated that the evidence supported a diagnosis of myofascial pain syndrome, not MS, while she was on active duty; and also stated that even had she such an impairment, she would not have necessarily been found unfit because of it. The USAPDA noted that except for her foot problems, the applicant was fully able to perform her duties.
2. The Board recognizes that at times there will be an honest difference of opinion among physicians as to a diagnosis. This case clearly shows the statement to be so. Whether or not the applicant had MS while on active duty cannot be determined absolutely. She was seen numerous times for her complaints while on active duty and competent medical personnel apparently had no reason to suspect MS. The VA apparently had no reason to suspect MS in making its determination of service connected disability. Subsequent to her discharge some medical personnel (civilian doctor, Medical Advisor) believe she had MS while on active duty; others (USAPDA) do not.
3. The Board notes that even if she had been diagnosed with MS, a PEB would have had to make a determination of unfitness and to make a recommendation concerning physical disability separation or retirement. This, of course, did not occur. To now determine that, if she had been diagnosed with MS while on active duty, a PEB would have found her unfit and recommended physical disability retirement or separation is speculation.
4. Furthermore, except for her foot problems, she was fully capable of performing her duties as noted by the USAPDA and as evidenced by her NCO evaluation report and by her completion of PLDC. Consequently, the applicant did not have any other medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation because of MS.
5. The applicant has submitted neither probative evidence nor a convincing argument in support of her request.
6. 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 that requirement.
7. 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
__JEV __BJE __ __WDB__ DENY APPLICATION
| CASE ID | AR2001053132 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20010821 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 107.00 |
| 2. | 177 |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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