MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 September 2003
         DOCKET NUMBER: AR2003083480

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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)

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APPLICANT REQUESTS: In effect, that she be medically retired with a disability rating of 30 percent or more in lieu of being discharged by reason of physical disability with severance pay. She also requests retirement pay equal to 2 1/2 times the years of her active service, that she receive back retirement pay from the date of her separation and that her medical separation with a disability rating of 20 percent be expunged from her records.

APPLICANT STATES: In a lengthy brief submitted by her counsel, in effect, that two errors exist in the record. She contends that she was improperly denied permanent retirement by the formal Physical Evaluation Board (PEB) because they granted 0 percent for osteoarthritis on the erroneous premise that there was no clinical evidence of the osteoarthritis. She argues that a proper ascription of disability [due] to her osteoarthritis would have yielded both a finding of "unfit" and a rating of at least 10% under VA Schedule for Rating Disabilities (VASRD) Code 5003. She states that given that these conditions had existed unabated since 1998 and were refractory to treatment, permanent disability retirement was appropriate. She also contends that, when she was placed on the Temporary Disability Retired List (TDRL), the initial informal PEB failed to note osteoarthritis of the foot and degenerative joint disease of the spine, either of which would have warranted at least a 10 percent disability rating and a finding of "unfit." She states that these conditions existed at the time of the formal PEB but were ignored because they had not been rated by the initial informal PEB.

The applicant points out that at her first periodic TDRL examination she was diagnosed with "osteoarthritis, generalized including spine, hands, knees," that the diagnosis was supported by an L-spine series done in 1997 which revealed "early degenerative disc disease at L5-S1" and that she was diagnosed with osteoarthritis during her second periodic TDRL examination in 2001.

She points out that the medical doctor who provided the diagnosis of no evidence of osteoarthritis in February 2002, reversed himself after seeing baseline radiologic studies and opined that the left hip and the right thumb demonstrated osteoarthritis. She also contends that this medical record was dictated on
28 February 2002 but was not printed until 7 June 2002, one day after her formal PEB.

She also points out that a civilian physician confirmed the diagnosis of osteoarthritis of the hips in May 2002 and a civilian physician confirmed the diagnosis of osteoarthritis of the left hip and right shoulder in June 2001.

The applicant contends that both bilateral hallux valgus with residual pain and low back pain were noted in the MEB, but the bilateral hallux valgus (bunion) was found to have existed prior to service (EPTS) and to be service aggravated. She states that her multiple surgeries during active duty confirm the service aggravation and that the bilateral hallux valgus under VASRD Code 5280 requires at least a 10 percent rating. She goes on to state that the lower back pain was seen as early degenerative disc disease in October 1999, that in April 2001 she was noted to have extreme tenderness and spasms in the paraspinous muscles both cervical and lumbar, and that the lumbar spine at the time of the initial PEB met VASRD Code 5295 requirements for lumbosacral strain and should have been rated at 10 percent.

In support of her application, she submits a supplemental statement with
23 enclosures that are summarized within the supplemental statement.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant entered active duty on 9 August 1983 and attained the rank of Chief Warrant Officer Two.

On 24 June 1998, the applicant was diagnosed by a Medical Evaluation Board (MEB) with: (1) bilateral hallux valgus with residual pain (EPTS and permanently aggravated by service); (2) left knee patellar malalignment; (3) left hip snapping; (4) low back pain; (5) right shoulder pain secondary to muscle spasm; (6) right thumb pain; (7) Panic Disorder with Agoraphobia, major depression, single episode, social and industrial impairment is definite; (8) fibromyalgia; (9) anemia, normocytic, normochromic; and (10) bilateral Raynauds Phenomenon. There is no evidence in the MEB that the applicant had osteoarthritis of the foot or degenerative joint disease of the spine. The MEB recommended referral to a PEB.

On 31 August 1998, a Narrative Summary was prepared by Rheumatology and the applicant was diagnosed with (1) fibromyalgia by tender points, fatigue, chronic pain, prolonged stiffness, and sleep disorder; (2) osteoarthritis, mildly involving her knees and hands as well as her right hip; and (3) Raynaud's.

On 11 September 1998, a PEB found the applicant physically unfit due to fibromyalgia with 16/18 tender points with associated fatigue, chronic pain, stiffness, sleep disturbance, depression, and anxiety (MEB diagnoses 4, 5, 7, 8, and Narrative Summary Rheumatology diagnoses 1 and 3), VASRD Code 5025; and osteoarthritis involving knees, hands, and hip (MEB diagnoses 2, 3, 6, and Narrative Summary Rheumatology diagnosis 2), VASRD Code 5003. The other diagnoses (MEB diagnoses 1, 9, and 10) were found not unfitting and not ratable. The PEB recommended a combined rating of 40% and that the applicant be placed on the TDRL. The applicant's TDRL DD Form 214 (Certificate of Release or Discharge from Active Duty) is not available.

The applicant appeared for a periodic TDRL examination on 23 February 2000. She was diagnosed with osteoarthritis, generalized including spine, hands, knees, etc; and fibromyalgia which is active with poor sleep and no aerobic conditioning program. The Narrative Summary indicated she had full range of motion except in her left knee which lacked 10-15 degrees of both flexion and extension.

The applicant appeared for a periodic TDRL examination on 5 April 2001. She was diagnosed with generalized osteoarthritis and fibromyalgia. The Narrative Summary indicated the musculoskeletal examination was within normal limits except for extreme tenderness of several points.

Apparently, the applicant appeared for a periodic TDRL examination in February 2002. A Radiologic Examination Report, dated 27 February 2002, states, in pertinent part, "Views of both hips reveal the joint spaces to be well preserved with no evidence of traumatic, arthritic or inflammatory change. IMPRESSION:
1. Normal bilateral hips." and "Routine views of both hands reveal no evidence of fracture, dislocation, arthritic, or inflammatory change. The joint spaces are adequately maintained throughout the hands and wrists. IMPRESSION:
1. Normal bilateral hands." These impressions were amended following the presentation of additional medical documentation. The amended report states, "IMPRESSION: 1. Early degenerative change in the left hip indicated by a probable degenerative geode of the superior acetabular rim, a minimal left hip joint effusion, with degenerative change. The joint space is adequately preserved and a minimal joint effusion noted on MIR imaging would not be expected to be visible in this less sensitive plain film examination. The remaining [views] of the pelvis are radiographically unremarkable. IMPRESSION:
1. Findings consistent with early osteoarthritis changes of the left hip with a probable degenerative geode of the acetabulum, a probable degenerative osteophyte of the posteromedial femoral head, a previously described small joint effusion." and "IMPRESSION: 1. Remote and chronic fracture at the first metacarpal phalangeal joint, a finding which predisposes to early degenerative/osteoarthritis change at this site."

On 20 March 2002, a PEB found the applicant physically unfit due to fibromyalgia with 11/18 positive tender points with sleep disturbance, VASRD Code 5025. The PEB recommended a combined rating of 20% and that the applicant be separated with severance pay. The osteoarthritis diagnosis was not rated because radiographs of the hands, knees, and hips on 27 February 2002 did not show any osteoarthritis. On 12 April 2002, the applicant did not concur with the findings and recommendations and demanded a formal hearing.

On 6 June 2002, a formal PEB affirmed the same findings and recommendations of the PEB. The applicant did not concur with the findings and recommendations of the formal PEB and submitted a rebuttal on 18 June 2002. The PEB reviewed the applicant's rebuttal and determined that she did not provide information as to any new diagnosis or changes in her currently rated disability and affirmed the decision of the formal PEB. The PEB also determined that the preponderance of the evidence indicated no arthritis of the hands, knees and hips and that the most recent readings of the radiographs were read as early degenerative joint disease.
On 5 July 2002, the U.S. Army Physical Disability Agency approved the recommended findings of the formal PEB.

Accordingly, the applicant was removed from the TDRL effective 16 July 2002 by reason of physical disability with severance pay (20 percent).

Department of Defense (DOD) Instruction Number 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) implements policy, assigns responsibilities, and prescribes procedures, under the authority of DOD Directive 1332.18 (Separation or Retirement for Physical Disability), for rating disabilities of Service members determined to be physically unfit and who are eligible for disability separation or retirement under Title 10, United States Code. This instruction provides, in pertinent part, that VASRD Code 5025, Fibromyalgia (also called fibrositis, myofascial pain syndrome, or primary fibromyalgia syndrome), is a syndrome of chronic and widespread musculoskeletal pain associated with multiple tender or "trigger" points, and is often accompanied by multiple somatic complaints. It is a condition for which diagnostic criteria were formally established in 1990. The diagnostic criteria include the following:
(1) a history of widespread pain that has been present for at least 3 months and there must be both axial skeletal pain and peripheral pain; (2) the presence of pain on digital palpation at 11 of 18 tender point sites; (3) the presence of a second clinical disorder does not exclude the diagnosis; and (4) that diagnosis should have been made by or with the consultation of a rheumatologist.

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 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. The mere presences of an impairment does not, of itself, justify a finding of unfitness because of physical disability. Appendix B prohibits pyramiding. Pyramiding is the term used to describe the application of more than one rating on any area or system of the body when the total functional impairment of that area or system can be reflected under a single code. All diagnoses that contribute to total functional impairment of any area or system of the body will be merged with the principal diagnosis for rating purposes.

Army Regulation 635-40, Appendix B, paragraph 10 states that when considering EPTS cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service. This will apply whether the particular condition was noted at the time of entrance into active service or is determined upon the evidence of record or accepted medical principles to have existed at that time. Hereditary, congenital and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service-aggravated complications are clearly documented.

Army Regulation 635-40 states that a soldier's name may be placed on the TDRL when it is determined that the soldier is qualified for disability retirement but for the fact that his or her disability is determined not to be of a permanent nature and stable. The TDRL is used in the nature of a "pending list." It provides a safeguard for the Government against permanently retiring a soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Medical examiners and adjudicative bodies will carefully evaluate each case. They will recommend removal of the soldier's name from the TDRL as soon as the soldier's condition permits. Placement on the TDRL confers no inherent right to remain for the entire 5-year period allowed by Title 10, U.S. Code, section 1210.

Department of Defense Instruction 1332.38, paragraph E3.P6.2.4 states that conditions newly diagnosed during TDRL periodic physical examinations shall be compensable when the condition is unfitting and the condition was caused by the condition for which the member was placed on the TDRL or the evidence of record established that the condition was incurred while entitled to basic pay or as the proximate result of performing duty and was an unfitting disability at the time the member was placed on the TDRL.

The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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.
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 notes that the September 1998 PEB found the applicant to be unfit in part due to osteoarthritis of the knees, hands and hip. However, the
23 February 2000 TDRL examination found she had full range of motion except in her left knee which lacked 10-15 degrees of both flexion and extension. The
5 April 2001 TDRL examination found she had a musculoskeletal examination within normal limits except for extreme tenderness of several points. A
27 February 2002 radiological examination report found she had early osteoarthritis changes of the left hip. The Board concludes that, although she was placed on the TDRL in part because she had osteoarthritis, the evidence at her last TDRL examination revealed it was not significant enough to be considered unfitting. The mere presence of a condition does not justify a finding of unfitness.

3. The Board considered the applicant's contention that when she was placed on the TDRL the initial informal PEB failed to note osteoarthritis of the foot and degenerative joint disease of the spine, either of which would have warranted at least a 10 percent disability rating and a finding of "unfit." There is no evidence that the MEB diagnosed osteoarthritis of the foot or degenerative joint disease of the spine as separate ratable conditions or should have done so. In addition, again, at the time of her last TDRL examination she was not found to have an unfitting condition due to osteoarthritis.

4. The Board notes the applicant's bilateral hallux valgus condition may have been aggravated while she was in the service. However, there is no evidence to show this condition did not become unfitting due to natural progression.

5. The Board noted the applicant's request that she be medically retired with a disability rating of 30 percent or more in lieu of being discharged by reason of physical disability with severance pay. However, the applicant has provided no evidence to show that her 20 percent disability rating was unjust or in error. Therefore, there is no basis for granting the applicant's requests.

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____ MHM____ KAH_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003083480
SUFFIX
RECON
DATE BOARDED	20030916
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.0000
2.	128.1400
3.	126.0400
4.
5.
6.