| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy Amos | Analyst |
| Mr. Fred N. Eichorn | Chairperson | |
| Mr. Thomas A. Pagan | Member | |
| Mr. Harry B. Oberg | Member |
APPLICANT REQUESTS: That the narrative reason for his separation be changed.
APPLICANT STATES: That his Certificate of Discharge or Release from Active Duty, DD Form 214, states that he was separated for failure to meet procurement medical fitness standards. The Department of Veterans Affairs (VA) has determined that the real reason for his discharge was a disability connected to military service. Unless the reason for discharge is changed, he cannot draw Montgomery GI Bill benefits. He provides his enlistment physical examination documents, his Entrance Physical Standards Board (EPSBD) Proceedings, his DD Form 214, and his VA Rating Decision as supporting evidence.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in the Regular Army on 2 August 1994. His enlistment physical examination did not note any problems with the spine or other musculoskeletal areas. He completed 15 weeks of English as a Second Language training and was in his third week of basic training when he was evaluated for a complaint of low back pain since November 1994. He had been treated by a civilian physician during exodus who diagnosed him with myositis (inflammation of a voluntary muscle). X-rays revealed a mild narrowing at the L4-5 disc. He was diagnosed with chronic low back pain with mild narrowing L4-5 lumbar vertebrae, existed prior to service (EPTS). It was recommended he be separated for failing to meet medical procurement standards. On 18 January 1995, the applicant disagreed with the proceedings, contending his condition was not EPTS. His appeal was considered and the original findings and recommendations were confirmed.
On 9 February1995, the applicant was discharged for failing to meet procurement medical fitness standards after completing 6 months and 8 days of creditable active service.
In August 1995, the VA granted the applicant a 20 percent disability rating for a herniated nucleus pulposus at T-12-L1. The VA noted that the Army’s diagnosis was in error and that based up VA X-rays the T12-L1 posterior focal disc protrusion was causing minimal compression upon the anterior aspect of the dural sac could be a cause of his low back pain. There was substantial doubt as to the service origin of this condition but it was resolved in favor of the applicant.
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 regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. Paragraph 3-3 states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. Examples of these conditions include scars, supernumerary parts, congenital malformations and hereditary conditions and similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.
Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. 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 this requirement.
2. The Board acknowledges the applicant’s argument that no back condition was revealed when he completed his enlistment physical examination. However, enlistment physical examinations are not comprehensive. X-rays are taken, but they are chest X-rays and not designed to look for back anomalies. The Board notes that service X-rays revealed mild narrowing, a subjective finding. VA X-rays revealed minimal compression upon the anterior aspect of the dural sac, another subjective finding. The Board also notes that a civilian doctor diagnosed him with myositis.
3. 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. Even the VA noted that there was substantial doubt as to the service origin of the applicant’s condition. They resolved it in favor of the applicant, which is within their policy guidance to do so. However, any rating action or service-connection finding by the VA does not demonstrate an error or injustice on the part of the Army.
4. The Board presumes that the EPSBD considered their diagnosis of the applicant’s back condition, a mild narrowing at the L4-5 disc, was a condition in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation was needed to support the conclusion that it existed prior to military service. The Board presumes that the difference between the Army’s diagnosis and the VA’s diagnosis was merely a subjective difference of medical opinion which does not negate the Army’s diagnosis. In either case, the applicant has failed to provide sufficient evidence which would disprove the EPSBD’s findings.
5. 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
__fne___ __tap___ __hbo___ DENY APPLICATION
| CASE ID | AR2001063133 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20011206 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 108.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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The patient continued with rehabilitation; however, he continued to report episodes of severe back pain. Physical Disability Board of Review SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for AR20130010303 (PD201201759)I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.
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CI CONTENTION : The CI states: ‘VA rated disability at 40% Service connection on May 28, 1997 and considered me unemployable on 4-22-04 for the back condition military discharged me with at 10%. Follow-up for back pain. The frequency and severity of the CI’s back pain and radicular pain increased significantly during his time on TDRL and this was consistent with the increasing severity of degenerative disc disease and herniated discs with impingement on the right S1 nerve root documented...
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AF | PDBR | CY2009 | PD2009-00120
The Navy PEB acknowledged the objective findings of mild intervertebral disc bulges from L3 through S1 and mild bilateral neural foraminal narrowing at L4 through S1, they declared these to be conditions related to the mechanical low back pain and not compensable. Using an evaluation completed five months before the time of separation from the Marine Corps, the Veterans Administration (VA) rated this disability as 5238-5243 Disc Protrusion L3 through S1 with Foraminal Stenosis Lumbar Spine...
AF | PDBR | CY2012 | PD2012-00570
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c. "I disagree with these proceedings because my condition did not exist prior to service (specified medical evidence is attached) and request my case be returned to the medical approving authority for reconsideration." Extension of time beyond 3 working days may be granted by the unit commander for reasonable delays (for example, to consult with legal counsel). It is not uncommon for a medical condition to be found acceptable upon enlistment, yet later form the basis for an EPTS medical...
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AF | PDBR | CY2012 | PD-2012-00761
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