RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 JULY 2004
      DOCKET NUMBER:   AR2003097777


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. Roger Able                    |     |Chairperson          |
|     |Mr. James Anderholm               |     |Member               |
|     |Ms. Marla Troup                   |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  In effect, the applicant requests an increase in the percentage awarded
him for his physical disability.

2.  The applicant states that he had severe stress fractures and shin
splints on both legs, a lower back injury, and depression; however, the
Physical Evaluation Board (PEB) only rated him zero percent disabled
because of his right tibia, and because of time constraints failed to rate
him for his lower back injury and depression.  He states that he has
requested the PEB at Fort Sill, Oklahoma to include the additional
conditions; however, due to time constraints discharge orders had to be
published and he was honorably discharged from the Army.  He was strong,
energetic, and healthy when he enlisted.  He left the Army with injured
legs and back and an unhealthy mental condition.

3.  The applicant provides a copy of the documents depicted herein.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army for three years in pay grade E-4 on
        16 September 2002.  Other than his enlistment documents, his
military personnel records are unavailable; however, the medical records he
submits with his request show that he was assigned to an artillery battery
at Fort Sill.  His application indicates that he was discharged on 5
November 2003.  His            DD Form 214 (Certificate of Release or
Discharge from Active Duty) is unavailable; however, the applicant is not
listed on the EDAS (the Army's enlisted distribution and assignment
system), indicating that he has been released from active duty.

2.  A 30 April 2003 Medical Evaluation Board (MEB) narrative summary shows
that the applicant first reported having right leg pain in October 2002 and
that the pain began while he was running.  He was seen on sick call and
treated with nonsteroidal anti-inflammatories; however, they provided no
relief.  X-ray impression showed medial proximal and medial distal right
tibial stress fracture. A bone scan demonstrated focal increased
radiotracer accumulation involving the medial cortex of the distal right
tibia compatible with his stress fracture, and mild diffuse cortical uptake
involving the shafts of the entire right and left tibias, from chronic
stress reaction or possible shin splints.  There was mottled uptake within
the tarsal bones bilaterally, compatible with diffuse stress reaction.  He
was referred to physical therapy and underwent an extended course of
physical rehabilitation.  The applicant stated that he had no significant
improvement.  He was seen in the orthopedic clinic and diagnosed with
periostitis right lower extremity.  He was referred back to his primary
care manager, a permanent profile initiated, and an MEB recommended.

      a.  Physical examination indicated that he had full range of motion
without discomfort to his back and that Waddell signs were negative.  Full
range of motion of the extremities was noted.  No effusion, edema or muscle
atrophy was appreciated.  Tenderness to the medial aspect of the right
tibia was noted and the area of most sensitivity was the mid one-third of
the tibia.  Slight tenderness to the mid one-third of the left tibia was
noted, but significantly less than the right. Deep tendon reflexes were 2/4
bilaterally.  He demonstrated good muscle strength and coordination.
Sensation to light touch and pinprick was intact throughout and no
neurological defect was noted on the exam.  He demonstrated a normal gait.

      b.  The applicant was alert and oriented to person, place and time.
He was well motivated and enthusiastic about staying in the Army.  He was
unable to run and complete the final physical training test for basic
training, however.  He was able to walk and do the other activities of
military training other than running for physical training.  He was able to
perform the basic activities of daily living, but he indicated that he did
have some discomfort with climbing stairs.  He stated that he no longer
played basketball, soccer, or ran.

      c.  His pain was determined to be frequent and the intensity slight.
His condition was diagnosed as periostitis, right lower extremity.

2.  On 19 May 2003 the applicant received a permanent physical profile
serial of 1 1 3 1 1 1 because of chronic right leg pain and was precluded
from running for physical training.

3.  On 2 July 2003 the applicant provided to the MEB a highlighted and self-
authored revised MEB summary.

4.  On 23 July 2003 a Physical Evaluation Board (PEB) determined that the
applicant's condition – periostitis, right tibia with leg pain, without
limitation of motion, was physically unfitting for retention in the Army
and recommended that the applicant be separated with severance pay with a
zero percent disability rating.  The applicant did not concur and demanded
a formal hearing.

5.  A 17 June 2003 medical record indicates that the applicant was seen for
low back pain, and that the applicant had stated that he believed that his
low back  pain existed because he compensated for his right leg pain.

6.  A 27 June 2003 medical record indicates that he was treated for
recurrent episodes of low back pain which had persisted for two months.
His condition was diagnosed as lumbar strain.

7.  An 18 July 2003 medical report indicates that the applicant was treated
for pain to his lower back and that the pain had persisted for one month.
The report indicates that the applicant stated that it hurt to bend over or
do push-ups or     sit-ups.  The report indicates that he had full range of
motion and strength and normal gait.

8.  A 12 August 2003 medical report shows that the applicant was seen for
pain and numbness to his lower back, that he stated that the pain had
persisted for three months, and had worsened.

9.  The applicant was seen by a mental health specialist and a social
worker on   12 August 2003 because of stress and trouble sleeping.  He was
depressed because he felt like a failure since his injuries.  His
depression was secondary to his pain.  The applicant stated that he had not
slept well for four months from the pain and that he felt like a "loser."


10.  In a 27 October 2002 five-page statement, the applicant summarized his
reasons for enlisting in the Army, his physical training, his subsequent
injuries as a result of that training, his treatment, medical condition,
MEB, and profile.  He stated that his leg pain was severe and he could not
walk without an air cast; however, he kept practicing walking.  The pain
worsened.  He could not sleep at night and had severe headaches.  He went
to the community mental health services.  At that time he could not even
walk.  At the mental health clinic he was diagnosed with depression and
mental breakdown.  The severe and intense pain due to his leg injuries
gradually prevented him from doing normal daily functions and activities.
In July 2003 he was diagnosed with lumbar strain.  He was  unable to sit
down for a long period of time and needed to rest frequently to ease the
pain.  The lower back pain started concurrently with his leg injuries, but
just flared up on and off.  He was asked to appear before a PEB at Fort Sam
Houston, Texas; however his legal counsel advised him not to.  He did not
have much time left so he could not fight back.  Because of his stress
fractures, shin splints on his legs, lumbar strain, and mental breakdown,
he requested a fair and just evaluation.  He did his best and gave 100
percent to the Army.

11.  In the process of this case an advisory opinion was obtained from the
Physical Disability Agency.  That agency stated that although the applicant
nonconcurred with the PEB findings and requested a formal hearing, on
     10 September 2003 he waived the hearing, but provided no further
information or medical evidence.  The Physical Disability Agency stated
that the applicant was properly rated for periostitis under VASRD
(Department of Veterans Affairs Schedule for Rating Disabilities) code
5022, and that to be rated at 10 percent or higher there had to be ratable
limitations of motion or x-ray evidence of involvement in two or more
joints.  His medical evaluation had neither, and he was properly rated at
zero percent.  His complaints of lower back pain and depression were noted,
but were not of such severity to warrant being listed on the MEB.  The
Physical Disability Agency, in effect, recommended that the applicant's
request be denied.

12.  The applicant was furnished a copy of the advisory opinion for his
information and possible rebuttal.  He failed to respond.

13.  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.

14.  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.

15.  Title 10, United States Code, section 1203, provides for the physical
disability separation of a member who has less than 20 years service and a
disability rated at less than 30 percent.

16.  Dorland's Illustrated Medical Dictionary, 27th Edition, defines
periostitis as inflammation of the periosteum, a specialized connective
tissue covering all bones of the body.

17.  Congress established the VASRD as the standard under which percentage
rating decisions are to be made for disabled military personnel.
Percentage ratings in the VASRD represent the average loss in earning
capacity resulting from diseases and injuries.  The ratings also represent
the residual effects of these health impairments on civil occupations.

18.  Part 4, paragraph 4.1 of the VASRD states that the rating schedule is
primarily a guide in the evaluation of disability resulting from all types
of diseases and injuries encountered as a result of or incident to military
service.  The percentage ratings represent as far as can practicably be
determine the average impairment in earning capacity resulting from such
disease and injuries and their residual conditions in civil occupations.

19.  Diagnostic code numbers appearing opposite the listed ratable
disabilities in the VASRD are arbitrary numbers for the purpose of showing
the basis of the evaluation assigned and for statistical analysis by the
VA, and extend from 5000 to a possible 9999.  When an unlisted disease,
injury, or residual condition is encountered, requiring rating by analogy,
the diagnostic code number will be “built up.”  The first 2 digits will be
selected from that part of the schedule most closely identifying the part,
or system, of the body involved; the last 2 digits will be “99” for all
unlisted conditions.

20.  The VASRD states that diagnostic code 5022, Periostitis, will be rated
on limitation of motion of affected parts, as arthritis, degenerative,
except gout which will be rated under diagnostic code 5002.

21.  Arthritis, degenerative, diagnostic code 5003, established by x-ray
findings will be rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints involved.
Limitation of motion must be objectively confirmed by findings such as
swelling muscle spasm, or satisfactory evidence of painful motion.  In the
absence of limitation of motion, in order to be rated as 10 percent
disabling there must be x-ray evidence of involvement of two or more major
joints or two or more minor joint groups.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had pain in his right leg.  His disability was properly
rated in accordance with the VA Schedule for Rating Disabilities.  He has
provided no evidence to the contrary.

2.  The medical evidence provided by the applicant shows that he was
treated for low back pain and depression.  He has submitted no evidence,
however, to show that those conditions were disabling or of such a nature
that required consideration by an MEB or PEB.

3.  The applicant has submitted neither probative evidence nor a convincing
argument in support of his request.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RA __  __JA  ___  ___MT __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            _____ Roger Able______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003097777                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040715                                |
|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.       |108.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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