| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy L. Amos | Analyst |
| Mr. Raymond V. O’Connor, Jr. | Chairperson | |
| Ms. Eloise C. Prendergast | Member | |
| Mr. John P. Infante | Member |
APPLICANT REQUESTS: Reconsideration of his request for an increase in his physical disability rating or that he be returned to active duty. He now specifically requests that he be returned to an active status for a time period equal to the time since his 1997 separation regardless of his age or mandatory retirement date; that he be placed on the Temporary Disability Retired List (TDRL) retroactive to his separation in 1997 or awarded reserve retirement points he would have earned for the same period; allowed to compete for promotion to full colonel without any adverse consequences as a result of his injury in Bosnia and the loss of potential Officer Evaluation Reports for the same period; or, in the alternative, that he be medically retired for those injuries.
APPLICANT STATES: That he suffered interstitial tears in his shoulder and elbow, not medial epicondylitis as diagnosed by the Army. The Board panel that convened on 26 March 2002 rested its decision on the inaccurate findings of the formal physical evaluation board (PEB). A more recent and thorough examination this past year revealed his disability was due to the fall on 15 September 1996 and was not a pre-existing condition of medial epicondylitis as diagnosed in the field without the benefit of an MRI (magnetic resonance imaging). The regulation provides that once the PEB determines fitness, it must determine permanence of the disability. The permanency assumes that all reasonable medical diagnostic procedures and surgeries had been completed. The Army medical team never examined his shoulder, let alone provided the necessary corrective shoulder surgery. If the Army had examined and repaired his shoulder in July 1997, he would have been returned to duty six months later based on the scenario of his shoulder surgery in May 2002 with a return to normal activities in December 2002. As a result of the erroneous and incomplete medical evaluation board (MEB) and the action of the PEB, the applicant was denied the opportunity to continue his reserve military career. He was denied the opportunity to compete for promotion to full colonel and remain in an active status to age 60. He needlessly suffered almost 6 years of physical pain and he bore the medical financial cost to repair his shoulder.
NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 26 March 2002 (AR2002062151).
As new supporting evidence, the applicant provides an undated (but prepared after 23 May 2002) letter from Doctor T___; his military medical treatment records pertaining to his arm injury; his formal PEB and narrative summary; and an extract from an Internet site describing a Superior Labral tear from Anterior to Posterior (SLAP) shoulder injury. He also provides two letters from Brigadier General H___. One letter, dated 28 January 2003, requests the applicant be recalled to active duty for 365 days in support of Operation Enduring Freedom. In the other letter, dated 26 March 2003, Brigadier General H___ requests the Board expedite the applicant's case so he may be recalled to active duty.
These records are new evidence which will be considered by the Board.
The applicant was ordered to active duty for 270 days for duty in Croatia in support of Operation Joint Endeavor with a report date of 5 August 1996.
On or about 15 September 1996, the applicant slipped on ice and fell. In attempting to break the fall, he severely twisted his left arm.
A Standard Form (SF) 600 (Chronological Record of Medical Care) shows the applicant sought treatment on 2 October 1996 for a complaint of recurrent tendonitis in left elbow. It was noted he had the problem for 3 years and it recurred because he was trying to catch himself from falling.
An SF 519-B (Radiologic Consultation Request/Report) dated 17 October 1996 revealed calcification of soft tissues at the applicant's media epicondyle.
An SF 513 (Consultation Report) dated 17 October 1996 shows the applicant was seen by Orthopedics for a complaint of an injury to his left elbow.
An SF 513 dated 19 November 1996 shows the applicant was seen by Orthopedics for a complaint of medial epicondylitis. He had been given an elbow splint without good results.
An SF 600 dated 29 November 1996 shows the applicant was seen for a complaint of epicondylitis of the left arm. It was noted he had had three injections of steroids in this joint (i.e., the elbow).
An SF 600 dated 30 November 1996 shows the applicant was treated for a long history of left elbow pain.
An SF 600 shows the applicant sought treatment on 12 December 1996 for a complaint of left elbow pain.
A Radiologic Examination Report dated 28 January 1997 shows that an x-ray of the applicant's left elbow showed no notable bony, articular, or soft tissue abnormality, no joint effusion, and no evidence of advanced degenerative changes. An MRI this date revealed increased signal intensity suggestive of interstitial tears. No other abnormalities were identified.
An electromyogram laboratory report, conducted by Colorado Springs Neurological Associates, noted a history of recurrent medial epicondylitis of the left elbow with some tingling in the ulnar fingers and some apparent left ulnar innervated muscle weakness. Nerve conduction studies found no electrodiagnostic evidence of ulnar (or medial or radial) neuropathy.
On 7 March 1997, Doctor T___ (at the time an active duty medical officer) operated on the applicant for a preoperative diagnosis of left cubital tunnel syndrome, medial epicondylitis, and possible collateral ligament instability. The operation report noted the applicant had 4 years of on and off medial elbow pain, exacerbated about 6 months earlier when he had a fall where he sustained a valgus stress to the elbow joint.
On 8 May 1997, Doctor T___ prepared a memorandum noting the applicant would be fit for unrestricted active duty about 6 months post-operative.
On 28 May 1997, the applicant was released from active duty upon the completion of his required active service. He was apparently authorized to remain on active duty to resolve his medical problems. The period of the extended active duty would be indefinite but would be terminated upon completion of action taken to resolve his medical problems.
On 16 June 1997, the applicant was released from active duty upon the completion of his required active service.
An SF 513 dated 30 September 1997 shows the applicant was examined by Orthopedics for a complaint of pain around the left elbow and tingling in the fingers of the left hand. Treatment included being given elbow pads for wear at nighttime.
On 6 August 1998, the applicant underwent an MEB physical examination. The Narrative Summary noted the applicant was examined for a chief complaint of left elbow pain and numbness in the left hand, ulnar fingers. It noted there were at least 15 visits recorded in his health records in regards to left elbow problems. An MEB Orthopedics consultation noted the applicant stated that current surgery had improved the mobility about his left elbow; however, he had ongoing problems with pain about the left elbow, particularly with lifting 10 pounds. He also stated that certain positions of his elbow exacerbated the pain about his left elbow and that he had tingling and numbness in his ulnar digits and that pain about his elbow was worse with cold weather.
The MEB referred the applicant to a PEB for diagnoses of left ulnar neuritis, left medial epicondylitis, exacerbation of right lateral epicondylitis with activities of daily living, and status postoperative submuscular transposition of the left ulnar nerve and repair of the flexor pronator mass above the left elbow.
On 6 October 1998, the applicant nonconcurred with the MEB's findings and recommendation. His appeal is not available.
On 25 February 1999, a formal PEB found the applicant unfit for duty due to impairment of the left elbow and forearm due to chronic pain exacerbated by moderate use, with loss of strength, minor sensory changes in the hand and with normal electrodiagnostic studies of the forearm. It was noted the pain as of long standing and thought due to tendonitis and existed prior to a tour of active duty, exacerbated by a fall while on active duty. The PEB found him to be physically unfit and recommended his separation with severance pay with a 10 percent disability rating. The PEB noted that the applicant had at least 20 qualifying years for a non-Regular retirement and that he had to option to choose to be placed in an inactive Reserve status and receive Reserve retired pay at age 60 by forfeiting his disability severance pay.
The applicant nonconcurred with the PEB's findings and recommendation. He noted in part that the PEB's disability description discussed tendinitis as opposed to left medial epicondylitis (NOTE: Dorland's Illustrated Medical Dictionary, 26th edition defines medial epicondylus humerous as the eminence (i.e., the "knob") of the elbow; tendonitis [of the elbow] would be an inflammation of the tendon at the knob.) He requested that he be placed in an inactive Reserve status and receive Reserve retired pay at age 60.
On 16 March 1999, the U. S. Army Physical Evaluation Board, Tacoma, WA considered the applicant's appeal, reviewed his case, noted that he provided no new medical information, and adhered to the original findings and recommendations of the formal hearing.
On 27 July 1999, the Department of Veterans Affairs (VA) awarded the applicant a 20 percent service connected disability rating for his left elbow epicondylitis, status post surgery with well healed scar; a 10 percent rating for lumbrosacral strain; and a zero percent rating for left knee chondromalacia patella. On 5 July 2000, the VA increased his disability rating for his left elbow epicondylitis, status post surgery with well-healed scar from 20 percent to 40 percent. On 18 June 2001, the VA awarded him a 10 percent service connected disability rating for right epicondylitis and a 10 percent rating for gastroesophageal reflux disease.
On or about 8 May 2002, a magnetic resonance arthrogram of the applicant's left shoulder revealed a suspected SLAP II or III tear. On 23 May 2002, the applicant underwent surgery for a pre-diagnosis of labral tear, impingement syndrome, and acromioclavicular joint arthritis. Doctor T___ (at this time a civilian doctor) performed the surgery.
The undated letter from Doctor T___ states in part, "…He injured his shoulder in Bosnia some time ago and since then has been plagued with mechanical symptoms in his shoulder…He was taken to surgery on 5/23/02 after a failed course of nonoperative treatment…has done well postoperatively. He states his shoulder hasn't felt this good since before he went to Bosnia. It is my opinion that the damage I saw at the time of surgery in his shoulder can be related to the injury he sustained in Bosnia."
On 30 August 2002, Doctor T___ stated the applicant was doing well. The applicant stated his shoulder was remarkably better than preoperatively. The applicant would complete his course of physical therapy over the next month and follow up for a final check in six weeks.
On 25 February 2003, the VA awarded the applicant a 10 percent service connected disability rating for left shoulder degenerative joint disease, status post acromioplasty and distal clavicle excision (effective 1 August 2002), 10 percent service connected disability rating for his left epicondylitis with limitation of supination and pronation (effective 15 October 2002); a 20 percent rating for lumbrosacral strain; a 10 percent rating for left knee chondromalacia patella; a 10 percent rating for gastroesophageal reflux disease; and his 40 percent rating for left ulnar neuritis, status post surgery with well-healed scar (previously shown as epicondylitis) was decreased to 20 percent (effective 15 October 2002).
The VA noted that although no left shoulder complaints or treatment were noted in the applicant's records, the VA examiner opined that the 1996 fall would be one factor in the development of his current left shoulder condition.
In the processing of this case, an advisory opinion was obtained from the Office of The Surgeon General (OTSG). OTSG noted that the available medical records contain no evidence to support the applicant's contention that a labral tear of his left shoulder that was diagnosed and treated in 2002 was the result of the injury incurred in 1996. OTSG stated that the available medical records supported that the applicant was appropriately evaluated, diagnosed, and treated based on presenting left elbow symptoms following his 1996 injury. OTSG noted that there was no complaint of shoulder pain documented in the applicant's records preceding May 2002.
A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He rebutted that the medical records and accepted basic medical principles did support the undiagnosed labral tear in his left shoulder that occurred when he slipped and fell in 1996. He noted an Internet site which indicated that a SLAP tear can be caused by a sudden trauma such as falling on an outstretched hand and jamming the shoulder. He noted another site which indicated that labral tears that involve the biceps tendon can make using the biceps tendon painful. He noted another site which indicated that symptoms of a SLAP tear include pain in the shoulder, occasionally radiating down the arm. A sense of catching may be felt, or deep aching that persists. The physical findings are difficult to diagnose on physical examination. There must be a high degree of suspicion. The applicant stated that since the medical team never examined or fully evaluated his shoulder, the advisory opinion is factually correct. Doctor T___ believed that his problem could be in his shoulder and ordered additional studies. Unfortunately, Doctor T___ left active duty prior to completing the applicant's treatment and his request for additional nerve studies was initially denied.
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. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. It states that a soldier whose normal scheduled date of nondisability separation occurs during the course of hospitalization may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits.
Army Regulation 635-40 prescribes the function of the TDRL. 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.
Army Regulation 635-40, 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.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, 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 throughout the applicant's medical records he complained of and sought treatment for left elbow pain after his 1996 injury. As he noted in one of the cited Internet articles, symptoms of a SLAP tear include pain in the shoulder, occasionally radiating down the arm. A sense of catching may be felt, or deep aching that persists. The physical findings are difficult to diagnose on physical examination. There must be a high degree of suspicion.
3. The Board concludes that, since the applicant exhibited no symptoms of a SLAP tear, a shoulder arthroscopy would not have been a reasonable medical diagnostic procedure or surgery for the Army to have considered. The Board notes that it appears the applicant, although he states Doctor T___ believed his problem could be in the shoulder, himself waited until 2002 to have this procedure considered by civilian doctors.
4. Even if the applicant's SLAP injury had been discovered by the Army in 1997, the Board concludes that there would have been no grounds for placing him on the TDRL. The Board considered the result of the shoulder operation from the disability ratings the VA awarded the applicant after the operation. The Board notes that the ratings are very similar to what the Army awarded him (an Army rating of 10 percent for left elbow and forearm chronic pain versus a VA rating of 10 percent for left shoulder degenerative joint disease and 10 percent for left epicondylitis). The Board concludes that PEB findings and recommendation would have been similar – unfit for military service with a 10 percent disability rating.
5. The Board concludes that an increase in the applicant's disability rating is not warranted. Despite the originating point of the applicant's pain, the fact remains that he was unfit for duty due to elbow/arm pain. The regulation prevents pyramiding. All diagnoses that contributed to total functional impairment of the applicant's arm would have been merged with the principal diagnosis for rating purposes. The VA, unlike the Army, assigns disability ratings as it sees fit and may ignore the pyramiding principle.
6. The Board concludes that retaining the applicant on active duty until his projected 6-month rehabilitation period was over was not warranted. The applicant was ordered to active duty on or about 5 August 1996 for 270 days. His normal release from active duty date would have been sometime in May 1997. He was scheduled for his normal release from active duty on 28 May 1997 except he requested extension due to his arm surgery. Once that surgery was completed and he was on his way to recovery, he was released from active duty (on 16 June 1997).
7. The Board concludes that if, instead of having surgery for medial epicondylitis his shoulder had been operated on, the applicant still would have been released from active duty on or about the same date. The regulation provides for the release of a soldier after maximum hospital benefits have been attained. The applicant's maximum benefit would have been obtained after the surgery was successfully completed. The regulation does not include recovery/rehabilitation time as part of those benefits.
8. For the reasons stated above, the Board concludes that allowing the applicant to compete for promotion to colonel or to award him reserve retirement points he would have earned had he not been released from an active status is not warranted.
9. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.
10. 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
__ro____ __ep___ __ji___ DENY APPLICATION
| CASE ID | AR2003085477 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030612 |
| 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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