MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 29 MAY 2003
         DOCKET NUMBER: AR2002078911

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Lester Echols		Member
Mr. Frank C. Jones II		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

---

APPLICANT REQUESTS: In effect, the applicant requests physical disability retirement.

APPLICANT STATES: The applicant made no statement but deferred to counsel.

COUNSEL CONTENDS: That the applicant should have been placed on the temporary disability retired list with a combined disability rating of 40 percent. Counsel states that the applicant should also be assigned disability ratings for bilateral hearing loss and sinusitis. He states that since the applicant was erroneously separated, he should be awarded all back pay and allowances from the date that he was separated through the date of the Board's action in his case. He states that the applicant should be issued a new DD Form 214 reflecting his change of status.

The applicant had been awarded a 40 percent disability rating by the informal Physical Evaluation Board (PEB) – 20 percent for stress urinary incontinence, 10 percent for chronic lower back pain with radiculopathic symptoms, and 10 percent for fecal incontinence; and the applicant accepted those ratings on 10 October 2001. Nonetheless, the finding of the PEB was overturned on review by the Army Physical Disability Agency (USAPDA) because of a lack of profile for fecal and urinary incontinence, lack of physical studies to support those diagnoses, lack of non-medical evidence showing how they affected his fitness for duty, and lack of evidence showing the necessity of wearing pads on a regular basis.

The applicant elected a formal PEB which was conducted on 16 January 2002. Although the PEB did award him a 10 percent rating for his back pain, it erred in failing to assign him ratings for his urinary and fecal incontinence. Medical evidence was provided showing those conditions. An anorectal manometry study substantiated the applicant's complaints of fecal incontinence. Urinary incontinence is documented in the addendum to the Medical Evaluation Board (MEB). In addition, the applicant's commanding officer provided proof of the unfitting nature of his fecal and urinary incontinence, placing the applicant in a duty assignment that would allow him to take frequent breaks to deal with those issues.

The applicant did not have a profile for urinary incontinence because the medical official determined that a profile was unwarranted, in that his profile for his lower back injury was more restrictive than one for urinary incontinence.

The findings of the informal PEB should have been upheld. The USAPDA erroneously overturned those findings. He should have been placed on the TDRL (temporary disability retired list) in accordance with the findings of the informal PEB on 9 October 2001.
EVIDENCE OF RECORD: The medical records available are those provided by the applicant. Absent is evidence showing his separation with a disability rating - a DD Form 214. In view of the evidence as shown, his contention that he was separated with a 10 percent disability rating is accepted.

The applicant was a Reserve soldier who was ordered to active duty in August 1997. He served as a military police team leader in Bosnia from October 1997 to May 1998. While in Bosnia he suffered a back injury in April 1998 during a riot when he was grabbed from behind by a Serbian soldier.

A 2 October 1997 medical report shows that the applicant injured his left shoulder. He was diagnosed as having a contusion to his left shoulder.

A 13 March 2000 report of medical examination and a report of medical history that the applicant furnished for the examination for the purpose of a medical board are incomplete, in that only the first page of each is available. The report of medical examination indicates that the applicant had a deviated septum, anisocoria, and a pectus excavatum, and that he had a L3 profile for low back pain. The applicant stated in his report of medical history that his health was poor. He indicated various past or present medical problems, to include wearing a brace or back support, swollen or painful joints, cramps in his legs, broken bones, arthritis, rheumatism or bursitis, recurrent back pain or any back injury, nerve injury, and frequent trouble sleeping. He indicated that he had no past or present eye trouble, hearing loss, recurrent ear infections, sinusitis, stomach, liver, or intestinal trouble, hemorrhoids or rectal disease, or frequent or painful urination.

A 3 April 2000 physical profile report shows the applicant's profile serial as 1 1 3 2 1 1 because of chronic low back pain and degenerative disc disease.

On 21 July 2000 the Total Army Personnel Command (PERSCOM) informed the USAPDA that a presumptive finding of in line of duty had been made because of the back injury he sustained in April 1998 in Bosnia.

An 11 September 2000 medical board narrative summary based on examinations by the attending physician on 3 April 2000, 12 April 2000, and 2 August 2000, because of the applicant's complaint of low back pain with radicular symptoms in both lower extremities, shows that the applicant was in the Army Reserve as a military police investigator and was deployed to Bosnia in August of 1997. Prior to his deployment, he had no history of any back injury or back problems. In April 1998 he was assaulted, grabbed from behind, causing a hyperextension force to his lower back. He was given pain medication, given a consultation to orthopedics or neurosurgery, and while on a mission to Germany was evaluated at an orthopedic clinic. He was assigned to Fort Benning, where he was referred to the orthopedic clinic and diagnosed with probable degenerative disc disease with radicular symptoms. His evaluation continued and he was retained on active duty until his evaluation was completed. He was seen by a neurosurgeon at the Augusta Veterans Administration in June 1998, and again in September 1998. The summary continued by indicating that the applicant had been seen and evaluated on and off, undergoing various tests at orthopedic and neurosurgery clinics at Fort Benning and at Walter Reed Army Medical Center through December 1999. The summary also indicated that the applicant had been having pain for almost two years and [his pain] did not improve with the prolonged period of rest. It indicated that because there was little chance that he would ever be able to return to full activities without a restrictive profile, and that even if surgery eventually were performed, he would still not be able to return to full duties, the treating orthopedic surgeon decided to initiate a medical board.

•         Physical evaluation, laboratory, and x-ray data indicated that the applicant was in no apparent distress. He had a deviated nasal septum; anisocoria, left eye greater than right; pectus excavatum; 3+ prostatic hypertrophy; normal blood pressure, diffused decreased hearing at all decibel levels; and a midline incision in the lumbosacral spine consistent with prior surgery. The summary indicated that the applicant had admitted that he had undergone a previous partial laminectomy and diskectomy of the L5-S1 level in 1991. He had pain in his back with some radicular symptoms in the lower extremities with straight leg raised, both sitting and supine. A review of his symptoms was significant for low back pain and pain radiating to both legs. He wears lumbosacral support for his back pain. He gets cramps in his legs secondary to his symptoms. He also has had a problem with stress incontinence for which he was seeing the urologist. Laboratory and x-ray data were within normal limits. He did have a narrowing at L5-S1 disc space, but no definite sclerosis. MRI on two occasions showed degenerative disc disease and mild disc space narrowing at L4-5 level and more so at the L5-S1 level. MRI of the cervical spine showed generalized disc bulge at the C6-7 level with mild compression of the thecal sac and thoracic spine MRI revealing generalized disc bulge at the T6-7 and T10-11 levels without neural compromise.

•         The applicant underwent nerve conduction studies, which were normal. He was referred to the internal medicine clinic for borderline electrocardiogram. A repeat electrocardiogram was normal. Physical examination and chest x-ray were normal. He was referred to the urology service for stress urinary incontinence. The examining physician stated the applicant was following up for stress urinary incontinence secondary to a herniated nucleus pulposus. He stated that the applicant's symptoms were essentially unchanged, that he continued to leak with coughing, laughing, sneezing, or even spontaneously without any Valsalva maneuvers. He still had fecal incontinence with most Valsalva maneuvers. The Cardura [medication] did not improve any of his symptoms. He never started the Imipramine [medication] as they had planned a year ago. His condition was assessed as urinary incontinence, unchanged. The urologist stated that the applicant should begin taking Imipramine, and call him back with the results in one to two months.

•         The summary indicated that the applicant had previously stated that he had no prior history of back problems; however, on physical examination it was clear that he had some previous spinal surgery, and the applicant did so admit. The examining physician stated that he continued to have significant low back pain dating back to his injury in April 1998, and that he could not lift or carry any heavy weights or do repetitive lifting. He had pain with prolonged standing or sitting and he could not do any strenuous physical activities. He had trouble sleeping at night due to his pain. The applicant stated that his pain was constant in nature in the pelvis with burning pain down into the thighs. The doctor rated his pain scale as moderate and frequent.

•         The summary indicated that the applicant's condition was diagnosed as status post partial laminectomy L5-S1, EPTS (existed prior to service), service aggravated; chronic low back pain and radicular type symptoms in the lower extremities, secondary to injury in April 1998 and the above diagnosis; urinary incontinence, unchanged; borderline electrocardiogram; and bilateral hearing loss. The examining physician recommended that the applicant be referred to a PEB for disposition.

A 20 September 2000 MEB conducted at Martin Community Hospital at Fort Benning shows that the applicant's condition was described as status post partial laminectomy L5-S1, dating from 1991, that existed prior to his service, but was permanently aggravated by service; chronic low back pain and radicular type symptoms in the lower extremities, secondary to injury in April 1998; urinary incontinence, unchanged dating from 1999; borderline electrocardiogram dating from 2000; and bilateral hearing loss dating from 2000. The MEB recommended that the applicant be referred to a PEB. The findings and recommendation of the board were approved. The applicant did not agree and stated that he wanted to continue on active duty.

On 27 September 2000 he submitted an appeal, stating that he was injured in line of duty and still had not had one day of treatment for his injuries. He has had several medical examinations, all of which documented his injuries. He stated that he was to undergo aggressive physical therapy and possible surgery, and

---

remain on active duty and return to West Point for continued medical care. However, he was told to remain at Fort Benning to receive necessary follow up care. He stated that he worked full time, initially 12 to 16 hours a day, 7 days a week. He stated that his work schedule had now been reduced to 8 to 10 hours a day, 5 days a week (minimum). He stated that he was in constant pain, but did not complain, completing his tasks completely and efficiently. He stated that he had several physicians at Fort Benning, Fort Gordon, and Walter Reed conduct evaluations. Physical therapy had been ordered several times by Walter Reed, but was not conducted during his assignment to Fort Benning. He stated that now he was informed that nothing would be done with regard to his care and treatment and that he would be removed from the service as unfit via a MEB. He stated that he had proper treatment and continued follow up for other issues, and was still undergoing treatment. He has requested several times to receive cortisone injections in his lower spine to relieve some of his severe pain. He was refused. He stated that he deployed in perfect health and expected to be discharged with the same as best as possible. He stated that since he was receiving ongoing treatment and follow-up examinations, he requested that the MEB be delayed until all documentation could be included and reviewed.

In a 9 November 2000 addendum to the MEB, in response to the statement that the applicant made to accompany the MEB, the examining physician stated that the applicant had been evaluated by many providers on many different occasions, with no clear indication that he mentioned that he had undergone prior spinal surgery in 1991. At the time of the MEB dictation, the examining surgeon inquired about any prior symptoms in his lower back. The applicant denied any history of back problems. When asked about the surgical scar, the applicant admitted spinal surgery in 1991 – stating that when he had denied prior surgery, he was referring only to the time period directly preceding his deployment. The physician stated that the applicant had been retained on active duty for over two and a half years, and despite multiple evaluations, no surgery was recommended by either the orthopedic surgeons involved or the two neurosurgeons that had been consulted. A neurosurgeon at Walter Reed recommended a course of physical therapy, but there was no evidence or an indication that physical therapy would improve his condition enough to return to active duty. He stated that the applicant could have had physical therapy at any time if he had indicated that this was recommended by a neurosurgeon; however, upon return from Walter Reed, the applicant never again sought medical attention at Fort Benning for many months and did not come forward until requested for a repeat evaluation to determine his current status. It was also noted, recently, that the applicant might have a hearing problem, and he was referred to the audiology clinic. According to the audiologist, the applicant should have a H1 profile for mild hearing loss and was fit for full duty. The physician stated that the applicant had a chronic condition consisting of degenerative disc disease in the lumbosacral spine with radicular symptoms in the lower extremities. He recommended that the case be referred to the PEB.
On 22 November 2000 the applicant nonconcurred with the 9 November 2000 addendum, stating that he had requested physical therapy many times. He stated that he was not misleading about his spinal surgery. He stated that he was shocked when his MEB was initiated upon his return from Walter Reed, and that additional treatments were not completed as requested by Walter Reed. He took umbrage with the statement in the addendum that he himself stated that he could not return to full duty, stating that he was working full duty and had been since his arrival at Fort Benning, and that his work schedule had been increased to seven days, 8 to 10 hours on weekdays, and 12 hours on weekends, with no days off. He also stated that the dictation in the addendum that no surgery was recommended was incorrect. The applicant further stated that he should have a profile on his ears, and the hearing examination on 6 October 2000 was biased and unacceptable. He stated that he was still receiving treatment from the Urology Department for a condition directly related to the nerves that exit the spinal area of his injury, and that he was still receiving treatment for a condition of growths in the region of the eye orbits.

On 22 December 2000 the MEB approving authority, the DCCS (Deputy Commander for Clinical Services) at Martin Hospital, stated that he had considered the applicant's appeal of the addendum, and was returning the report of the board to the physician for preparation of an additional addendum.

A 26 January 2001 addendum shows that the applicant was referred to ear, nose and throat clinic on 17 January 2001 for an evaluation of a series of abnormal audiograms. The examining physician stated that the applicant had no history and no physical exam consistent with hearing loss, or acute or chronic otitis media; that he had a significant physical exam and history for chronic rhinitis secondary to tobacco abuse and acute sinusitis; that the complaints of ear problems could be secondary to a history of chronic or acute sinusitis; and that the applicant stated that he had no prior history of allergies. He stated that the applicant complained of a fullness and hearing loss and of a chronically sore throat and congested right nasal passage. He indicated that the applicant had a history significant for smoking in the past 20 years, approximately one pack a day. The physician stated that the applicant had acute sinusitis with chronic nasal obstruction secondary to a nasal septal deformity, and that his condition existed prior to service.

The applicant nonconcurred with this addendum, stating that the issue of tinnitus and deviated septum was discussed during exams. He stated that he had discussed his hearing loss throughout his military career. He provided an account of the various hearing examinations that he underwent.

---

In a 9 February 2001 memorandum to the commander of Martin Hospital, the adjutant of the applicant's unit stated that the applicant was physically incapable of performing his duties as an military police investigator because of the injury that he sustained in Bosnia, that he had a temporary profile of 1 1 3 1 1 1, causing him to be nondeployable. She stated that the applicant was an extremely capable soldier; however, his physical condition created an adverse impact on his combat readiness.

On 12 February 2001 the DCCS at Martin Army Community Hospital stated that the findings of the MEB, addendums, and appeals had been reviewed, and that the recommendation of the MEB was upheld and forwarded to the PEB for adjudication.

A 27 February 2001 radiologic examination report of the applicant's kidneys revealed that there was mild to moderate hydronephrosis of the right kidney which persisted after voiding, and that the left kidney demonstrated mild hydronephrosis which also persisted after voiding. The diagnosis given was bilateral hydronephrosis, right greater than left, and normal bladder. A 19 March 2001 radiologic examination report revealed evidence of a horseshoe kidney, and prolonged tracer activities within both collecting systems probably due to bilateral extra renal pelvis. No evidence of obstruction was seen.

On 9 March 2001 the PEB at Fort Sam Houston informed the commander of Martin Army Community Hospital that the PEB proceedings concerning the applicant were discontinued, in that there was no explanation regarding the EPTS (existed prior to service) diagnosis of the applicant's status post partial laminectomy while he was entitled to basic pay; and there were questions regarding urinary incontinence and fecal incontinence. There was no information whether he wore absorbent materials and if so how many times daily they had to be changed. The PEB indicated that a rectal examination (sphincter tone) was not recorded in the MEB, and that evaluation of gastroenterology or proctology was required with a discussion of frequency or magnitude of fecal incontinence described. It stated that a rectal manometer with perianal neurologic testing and description of sphincter tone was also required. The PEB indicated that if the information were not provided within 60 days, the case would be terminated.

On 8 May 2001 the PEB at Fort Sam Houston informed the commander of Martin Army Hospital that the PEB proceedings concerning the applicant were terminated because his case exceeded the 60 day time allowance, and stated that when the required documentation was obtained to return a copy of the case file. A 26 September 2001 endorsement to the PEB indicates that the addendum had been completed bringing the applicant's case up to date.

---

The applicant underwent an anorectal manometry for anorectal incontinence on 14 May 2001 at Piedmont Hospital in Atlanta. His anal manometry was normal except for somewhat decreased squeeze pressure. The report of that manometry indicated that if anorectal incontinence persisted despite the use of bulking agents and anti-diarrheals, then biofeedback therapy would be indicated.

A 14 September 2001 radiologic examination report diagnosed the applicant's condition as status post discectomy at L5-S1 with near complete fusion of the L5-S1 vertebral bodies.

A 17 September 2001 record of audiological evaluation indicates, among other notations, "mild to moderate flat mixed loss."

An 18 September 2001 lower extremity electromyography report shows that the applicant's condition was suggestive of a mild, non-specific, left peroneal neuropathy; however, a possible mild L5 radiculopathy could not be totally ruled out.

A 19 September 2001 addendum to a medical board, based on a physical examination performed by the attending physician on 14 September 2001 revealed that the applicant had a prior history of back pain and a prior spinal surgery in 1991, but stated that prior to deployment he was having no symptoms in his lower back. While deployed he was involved in an altercation and thrown to the ground. From that time he had significant back pain. He underwent numerous evaluations, but after a two-year period in which no improvement had occurred, the orthopedic surgeons at Fort Benning initiated a medical board. The applicant did not concur with the findings, and an addendum was done and sent to the PEB. Due to complaints of urinary and fecal incontinence, the board was returned to Fort Benning for further information. This packet is now returned to the PEB for final disposition. The addendum indicated –

•         Studies by a proctologist in order to obtain an anorectal manometry were obtained on 14 May 2001 and showed no abnormalities other than slightly decreased squeeze pressure, which was a voluntary contraction of the anus by the soldier. All other studies, including reflexes were normal.

•         The applicant was evaluated by the Urology Service because of his complaints of urinary incontinence. Evaluation showed that he had a large capacity bladder without any inhibited bladder contractions and had minimal postvoid residual. When questioned, the applicant stated that his symptoms continued; however, he did not use any pads or special undergarments. The urologist diagnosed the applicant's condition as stress urinary incontinence but with no evidence of a neurogenic bladder.

•         Radiographs of the applicant's lumbosacral spine showed a complete loss of disc space at the L5-S1 level; there was bridging bone anteriorly consistent with a spontaneous fusion at L5-S1. There was mild narrowing at the disc space at L4-5, but the alignment of the vertebral bodies was normal at that level.

•         The applicant was referred to the neurology clinic where repeat EMGs of the lower extremity were obtained on 18 September 2001. EMGs revealed findings suggestive of a mild nonspecific left perineal neuropathy or possibly a mild L5 radiculopathy on the left. The applicant was able to fire the muscles normally, but when resistance was added his effort actually decreased. This type of giving away was not consistent with neurogenic weakness secondary to nerve root compression.

•         The applicant had complained of bilateral hearing loss. This was noted on his original board, but since the board was completed the applicant had undergone tonsillectomies. He had multiple hearing evaluations over the last three years. Examinations revealed significant variations in his hearing depending on the day of the exam. He had a history of chronic sinusitis and underwent tonsillectomy in the spring of 2001. He has a variation of air conduction caused by intermittent fluid in his middle ear; consequently the air conduction varied and could be normal at times. The audiologist stated that the applicant had mild to moderate flat mixed loss in both ears. He qualified for an H3 hearing profile due to the mild to moderate high frequency sensory neural hearing loss.

•         The applicant continued to complain of significant pain in his back and pain radiating into his lower extremities. He stated that he was working full time for the replacement center at Fort Benning, but was unable to return to his duties as a military police inspector. His pain was rated as constant and moderate.

•         The applicant's condition was diagnosed as chronic low back pain and radicular type symptoms in the lower extremities, secondary to degenerative disc disease, L4-5 and L5-S1; stress urinary incontinence but no evidence of a neurogenic bladder; fecal incontinence with normal rectal examination and anorectal manometry; mild to moderate hearing loss both ears; and mild Dupuytren's contracture, left palm, with no significant loss of motion. The examining physician stated that the applicant had remained at Fort Benning for over three years undergoing the MEB process, and that his back condition had not improved. He stated that his physical examination did not always correlate with his symptoms, nor did his electrodiagnostic studies. He stated that the applicant did not meet the physical standards for retention, and recommended that he be referred to a PEB.
The applicant, on 24 September 2001, nonconcurred with the MEB addendum, stating that the record showed his physical profile serial as 1 1 1 1 1 1 prior to deployment. His medical conditions, to include fecal and urinary incontinence, developed while he was awaiting proper medical care at Fort Benning. The most recent x-ray of his lower spine revealed a large growth in the L5 region. He questioned whether his spine had begun to fuse itself as indicated by the reviewing medical authority. He stated, in effect, that he had done his duty, and now has been advised that he was unfit to be a soldier. He stated that he could not return to his employment upon his retirement and would be unemployed. He stated that he has been at Fort Benning since May 1998 and has suffered a financial loss while on active duty.

On 24 September 2001 the DCCS at Martin Army Community Hospital reviewed the findings of the addendum and appeal. She upheld the recommendation of the MEB and the addendum and forwarded it to the PEB for further adjudication.

In a 3 October 2001 letter to medical boards, the officer in charge of the physical examination section at Martin Army Community Hospital stated that he had interviewed the applicant on 3 October, and that he gave a history of his back pain. A diagnosis of impingement of nerves and disc herniation was reportedly made, and as a result of the progressive nerve compression, he had apparently developed neuropathy and had problems with both urinary and rectal incontinence. The doctor continued by relating the problems voiced by the applicant.

•         The applicant stated that he had urinary and bowel incontinence, primarily with coughing, sneezing, etc., and sometimes just spontaneously.
•         He stated that he goes through at least 2 or 3 pairs of underwear during the day because of soiling, but did not use or wear pads, because he psychologically refused to wear pads, by choice.
•         He stated that he loses urine about every time shortly after urination, and urinates 10 times during the day and 4-5 times at night.
•         He stated that he has bowel problems and has tried cutting down food intake to eating one meal per day. He has normal movement in moderate amount in the evening. He gets a lot of soft stools and some diarrhea; experiences bubbling in his abdomen, some cramps; and with bowel incontinence he loses about one teaspoon at a time and then he automatically and consciously tightens his sphincters and controls it better. He has bowel incontinence about 4 times a day – ranging from 2 to 6 times on various days.

---

On 9 October 2001 a PEB determined that the applicant was physically unfit because of stress urinary incontinence with nocturia 4-5 times a night, with a recommended disability rating of 20 percent; chronic low back pain with radicular symptoms, in both lower extremities, status post L5-S1 laminectomy, without neurologic abnormality, with a recommended rating of 10 percent; and fecal incontinence with normal rectal examination and anorectal manometry, with daily slight leakage, with a recommended rating of 10 percent. It indicated that his hearing loss was not unfitting and not ratable. The PEB recommended that the applicant be placed on the temporary disability retired list with a combined rating of 40 percent. The applicant concurred and waived a formal hearing.

In a November 2001 memorandum to the PEB, the USAPDA stated that it had modified the findings and recommendations, stating that there was insufficient evidence to support an unfit finding for incontinence.

On 14 November 2001 a revised PEB determined that the applicant was physically unfit for retention because of chronic low back pain with radicular symptoms, in both lower extremities, status post L5-S1 laminectomy, without neurologic abnormality. The board found his other conditions as indicated in the MEB diagnoses and addendum to the MEB diagnoses as not unfitting, and not ratable. It stated that the applicant's complaints of stress urinary incontinence and fecal incontinence were subjective and were not supported by any physical studies, that there was no profile for urinary or fecal incontinence, and that there was nothing in the command letter indicating his inability to perform his duties due to those claimed medical impairments. The board indicated that the applicant stated that, even though he might have several instances of urinary or bowel incontinence, he did not feel it was necessary to take any precautions or wear any pads. It stated that this revision superseded the 9 October 2001 informal PEB. The board recommended that he be separated with severance pay with a 10 percent disability rating. The applicant disagreed with the revised PEB and demanded a formal hearing.

In a 29 November 2001 letter to the PEB, a fellow NCO stated that he had known the applicant for nine years, and that the applicant's loyalty to his country, the Army, and soldiers was beyond doubt, that he was honest almost to a fault, and that he would give of himself without complaint.

On 30 November 2001 the USAPDA returned the case to the PEB for a formal board as requested by the applicant.

---

On 26 December 2001 the PEB informed the applicant that it had reviewed the duplicate medical information from Martin Army Community Hospital and found that no change to the original findings was warranted, and that the medical information contained no new objective medical or performance evidence that would result in a change in his 20 November 2001 USAPDA modification.

In a question and answer session [undated, but apparently in testimony before the 16 January 2002 formal PEB] the applicant recounted his injury in Bosnia and his treatment thereafter. He commented on his urinary and bowel problems. He stated that he had facial surgery, that he had growths on his left hand, which were not treated; that he had surgery to remove part of his nose, sinuses, and throat, and that he still could not breathe properly and had speech difficulties. He had repeatedly failed hearing examinations, only to receive a P1 profile from an enlisted soldier. He concurred with the 9 October 2001 PEB findings, only to be informed that those findings were disallowed. He commented on his current situation, that he could no longer be a police officer investigator, and that he had lost his prior civil service job because of his line of duty injury. He commented on the cost to repair his home, which had been empty since his deployment and was in a shambles. He stated that his deployment in service to his country had cost him much, his physical health, his financial status, and his career.

On 16 January 2002 a formal PEB determined that the applicant was physically unfit for retention because of chronic low back pain with radicular symptoms, in both lower extremities, status post L5-S1 laminectomy, without neurologic abnormality. The board indicated that the applicant suffered a back injury as a result of a riot while stationed in Bosnia in April 1998. The board found his other conditions as indicated in the MEB diagnoses as not unfitting, and not ratable. It stated that the applicant's complaints of stress urinary incontinence and fecal incontinence were subjective and were not supported by any physical studies, that there was no profile for urinary nor fecal incontinence, and that there was nothing in the command letter indicating his inability to perform his duties due to those claimed medical conditions. The board recommended that he be separated with severance pay with a 10 percent disability rating.

The applicant nonconcurred, providing a rebuttal. He referred to a 14 May 2001 anorectal manometry study; and reports of loss of bowel and bladder control on coughing, sneezing, and sudden movement, which caused pressure on the abdominal region. He referred to examinations showing moderate hydronephrosis of the kidneys after voiding, substantiating his claims of discharge after urination. He referred to findings of 19 March 2001 concerning prolonged bilateral renal excretion. The applicant stated, in a meeting just prior to the 16 January 2002 PEB, the DCCS at Martin Army Community Hospital

---

stated that his profile for spinal injury was considered an "umbrella profile," which also covered the requirement for the urinary and fecal profile. He stated that this was untrue and that a second profile was needed. In a second meeting, after the conclusion of the PEB, the commander of Martin Hospital reaffirmed the statement of the DCCS.

•         The applicant stated that his conditions must be rated separately, according to the VASRD (VA Schedule for Rating Disabilities) and DOD instructions. He stated that when reasonable doubt existed, and the degree of disability was in question, the issue would be resolved in favor of the claimant.

•         He stated that he also had a medically documented hearing loss, resulting in the issuance of an H3 profile, but upon a reexamination he was given an H1 profile. He stated that although the bilateral hearing loss was part of the 20 September 2000 MEB, it was omitted from the PEB. His hearing examinations should have been included and been part of the submission to the USAPDA.

•         He also stated that his left shoulder injury should have been part of the total MEB process. He stated that his complaints were consistent with a torn rotator cuff.

•         He commented on his employability, stating that although his commander had stated on 24 September 2001, that he had no complaints concerning his work habits, that officer's letter of 23 January 2002 clarified many points of discussion that took place during the formal PEB hearing, qualifying the information contained in his 24 September 2001 statement.

•         He stated that extensive questions were asked about his civilian employment. He stated that he would have been eligible to return to his prior job, had he been physically fit to do so; however, he was no longer capable to perform those duties. Upon discharge from the Army, he would be unemployed. He lost his civilian job because of a line of duty injury in Bosnia. He stated that he would be unqualified to secure employment elsewhere with another emergency service or police department. He stated that he has not worked within his specialty as a military police investigator.

•         He stated that the findings of the 9 October 2001 PEB, placing him on the TDRL with a 40 percent disability rating should be reconsidered. By placing him on the TDRL, it was the assumption that his condition was not stable and subject to change. He accepted those findings in good faith.

•         He stated that the USAPDA reversed the decision of the PEB due to the simple fact of a missing profile for urinary or fecal incontinence, stating that the medical studies were subjective. The USAPDA also indicated that a reason for the PEB reversal was because he stated that he felt it unnecessary to take any precautions or wear any pads. The applicant stated that a physician stated in his report that it was due to a psychological preference; however, based upon advice, he immediately purchased and now wears pads. He stated that he wears pads and uses the rest room 10 times during the day and approximately 5 times at night. He stated that his discharges continue and he still only consumes one meal a day.

•         The applicant requested consideration for disability ratings for various conditions, e.g., lumbar, cervical, and thoracic spine; left foot drop; left shoulder; hearing, septum deviation; larynx, speech difficulty; heart; and bladder/bowel. He referred to a USAPDA policy guidance concerning pain, stating that his pain levels were marked and constant, which also caused him to lose sleep because of his pain.

•         He stated that he suffers miserably due to his pain, loss of motion, constant need of bathroom facilities, loss of sleep, permanent left sided gimp, hearing loss, and raspy and gravelly voice due to throat surgery performed by the Army. He stated that he could not carry or lift some things, could not sit or stand for extended periods, and that his condition was deteriorating. He stated that he has served proudly since 1976, and when he deployed he was in perfect health.

In a 23 January 2002 memorandum (clarifying his 24 September 2001 memorandum) to the PEB, the applicant's commanding officer, CONUS (Continental United States) Replacement Center commander at Fort Benning stated the applicant had done a great job as the center's shuttle driver; however, on numerous occasions he had to forego driving due to severe back pain. He stated that while that job would not violate his profile, due to the nature of his injuries, the applicant was unable to sit or stand for extended periods of time without enduring excruciating pain; and that he had to have ready access to a restroom at all times due to urinary/bowel problems. The shuttle job afforded him the opportunity to take frequent breaks and make frequent restroom stops. He stated that although the applicant suffered miserably, he continued to press onward, giving 110 percent. He stated that the applicant had been observed to walk with a highly notable left sided leg limp, and that despite his handicaps, he did not permit his personal pain and suffering to affect the mission.

---

Consequently, this is what he [the commander] meant in his previous comment, "without complaint." He stated that the evaluation reports from his parent unit that he had done a great job as a military investigator were not true. He stated that the applicant had not served as a military police investigator since his arrival at the replacement center.

In a 24 January 2002 memorandum to the applicant, the commanding officer of the Medical Department Activity at Fort Benning stated that the applicant was not issued a profile for urinary incontinence because there was no medical indication to do so. She also stated that his existing profile for his back disorder would be more restrictive than a profile specifically for urinary incontinence.

On 31 January 2002 the USAPDA informed him that his case was properly adjudicated by the PEB and its findings and recommendations were supported by substantial evidence and therefore affirmed.

The applicant submits a copy of a 6 December 1999 USAPDA policy memorandum which states that verbal and written information on a soldier's case must be made part of the case file. This includes information received during and after a formal PEB or during the USAPDA review of the case. He submits a portion of Title 38 which states that the VA will resolve any reasonable doubt concerning a degree of disability in favor of the claimant. He submits a copy of a 12 April 2000 USAPDA policy memorandum for physical evaluation boards on rating pain, which indicates that a 20 percent rating would be appropriate for moderate, constant pain. The applicant provides a copy of an extract from Army Regulation 611-201 which prescribes the duties and physical requirements of a military policeman.

Included with his request are a copy of his personnel qualification records, a leave and earning statement, active duty orders, a 13 May 1998 endorsement changing the authority for his active duty because of his voluntary request to remain on active duty to resolve medical problems, a document showing approval of a leave request, a copy of results of his physical fitness tests, a statement showing retirement points earned, a copy of his 1979 DD Form 214 (separation document), a copy of the order promoting him to staff sergeant, and copies of statements in mid-1998 showing that he had a medical condition that required follow up medical care.

Department of Defense Instruction 1332.38, enclosure 4, provides a listing, mainly by body system, of medical conditions and physical defects which are cause for referral into the Disability Evaluation System (DES). The listing is not all inclusive. A service member who has one or more of the listed conditions or physical defects is not automatically unfit and therefore may not qualify for separation for retirement for disability. Individual Secretaries of the Military Departments may, consistent with this instruction, modify these guidelines to fit their particular needs. Herniation of nucleus pulposus when more than mildly symptomatic, with demonstrated neurological involvement, is cause for referral into the DES, as is various ear and hearing problems; sinusitis or rhinitis (atrophic) with Suppuration, unresponsive to conventional therapy; fecal incontinence; and urinary incontinence, if unresponsive to treatment.

Service members with fecal incontinence should have recorded findings of rectal examination, e.g., digital exam, manometric studies as indicated, and radiographic studies. The degree and frequency of the incontinence should be noted as well as the incapacitation caused by the condition.

For vertebral disc problems, radicular findings on physical examination should be supported by laboratory studies. In cases involving back pain, the use of Waddell's signs should be included in assessing the severity and character of the pain.

Audiograms must include speech discrimination scores.

All cases involving urinary incontinence must include studies that document this condition.

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 MEB 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.

---

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. The applicant's separation with a 10 percent disability rating for chronic low back pain is correct. Despite his numerous objections to the diagnoses made by Medical Evaluation Boards, there is no medical evidence, nor has the applicant provided any, to show that his back condition warranted a rating higher than 10 percent. Apparent, as the applicant so acknowledges, is the fact that he was working full time, albeit not in his specialty as a military police investigator, in spite of his back pain. The Board understands that the 10 percent disability rating for his back pain is an acknowledgment by the PEB that the applicant could not perform his military duties as a military police investigator. The applicant himself agreed with the 10 percent disability rating granted by the 9 October 2001 informal PEB, later confirmed by the formal PEB.

2. The applicant did not have a physical profile for fecal incontinence. Despite the applicant's contentions to the contrary, there is no medical evidence to show fecal incontinence. The applicant stated in his 13 March 2000 report of medical history that he had no stomach, liver, or intestinal trouble, hemorrhoids or rectal disease. And, although an 11 September 2000 medical evaluation board summary stated that the applicant "still had fecal incontinence with most Valsalva maneuvers," there was no medical evidence showing that condition. The diagnoses in that summary did not indicate fecal incontinence. Neither did the 20 September 2000 MEB diagnose the applicant with that condition. In his appeal to the MEB the applicant did not argue fecal incontinence, only doing so on 24 September 2001, in response to a 19 September 2001 addendum to a medical board. The medical evidence shows that that the applicant had no abnormalities other than decreased squeeze pressure, which was a voluntary contraction on the part of the applicant, and that all other studies, including reflexes were normal. Notwithstanding counsel's contention, neither the anorectal manometry nor the information provided by the applicant's commanding officer substantiate fecal incontinence.

3. Again, at least in March of 2000, the applicant stated that he did not have frequent urination. The 11 September 2000 medical evaluation board summary, however, indicated that the applicant had a problem with stress urinary incontinence for which he was seeing a urologist, and that he was following up for stress urinary incontinence secondary to a herniated nucleus pulposus. That summary also indicated that the applicant apparently never started on a medication for stress urinary incontinence planned a year ago [September 1999?], and that the urologist stated that the applicant should start on that medication and provide the urologist with the results in one or two months. There is no evidence that the applicant followed through on this. A 27 February 2001 radiologic examination report indicated that the applicant's condition was diagnosed as bilateral hydronephrosis, and that he had a normal bladder. The evidence suggests that the applicant had a problem emptying his bladder, and that the medication recommended was to help him do so. In September 2001 the urologist diagnosed the applicant's condition as stress urinary incontinence with no evidence of a neurogenic bladder. He had a large capacity bladder and had minimal postvoid residual.

4. The information provided by the officer in charge of the physical examination section at Martin Army Community Hospital on 3 October 2001 concerning the applicant's condition of urinary and fecal incontinence, appears to be based on information provided by the applicant to that officer; and the 9 October 2001 informal PEB apparently relied on that information in granting the applicant a 20 percent disability rating for stress urinary incontinence, and a 10 percent rating for fecal incontinence. While the evidence shows that the applicant's condition was diagnosed as stress urinary incontinence on two occasions, there are no objective findings to that condition, as noted by the 16 January 2002 formal PEB. The Board does not arbitrarily discount the medical evaluation board summaries concerning stress urinary incontinence; however, there is no medical evidence of that condition, nor any evidence to show that he was incapacitated because of stress urinary incontinence. The 23 September 2002 statement provided by his commanding officer does not necessarily make clear this issue, but only tends to show that the applicant could do his job. The statement by that officer that the applicant had to have ready access to a restroom at all times, and that the applicant suffered miserably, could have only come from the applicant. Further, and notwithstanding counsel and applicant's contention, his profile for spinal injury was not considered an "umbrella profile" to cover the requirement for a urinary and fecal profile. He was not issued a profile for urinary incontinence because there was no need to do so, as he was so informed on 24 January 2002.

5. That the applicant suffered from a bilateral hearing loss is so. There is no evidence, nor has counsel or applicant provided any, to show that his condition warranted a disability rating. To the contrary, the 14 November 2001 informal PEB, in which the applicant concurred, indicated that his hearing loss was not unfitting and therefore not ratable.

6. The evidence concerning the applicant's sinusitis is contained in a 26 January 2001 addendum to a medical evaluation board in which a physician stated that he had acute sinusitis with chronic nasal obstruction secondary to a nasal septal deformity, which existed prior to his service. His sinus condition was not considered by a PEB or a MEB. He has provided no evidence that his condition was unfitting or that it warranted a disability rating.

---

7. The evidence suggests that the applicant has, over a three-year period, been given all possible medical attention and consideration due his alleged conditions. Counsel's contentions and the applicant's numerous arguments notwithstanding, there is no probative medical evidence to warrant granting the applicant's request. His request for physical disability retirement is not granted.

8. 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.

9. 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

__LLS __ ___LE___ __FCJ___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

---

INDEX

CASE ID	AR2002078911
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030529
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.	108.00
2.
3.
4.
5.
6.